Deandra D. Moffett v. State ( 2015 )

ACCEPTED 05-15-00830-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 7/9/2015 8:15:34 PM LISA MATZ CLERK Nos. 05-15-00829-CR and 05-15-00830-CR In The FILED IN 5th COURT OF APPEALS DALLAS, TEXAS Court of Appeals 7/9/2015 8:15:34 PM LISA MATZ Clerk FIFTH DISTRICT OF TEXAS Dallas, Texas __________________________________________________________________ Deandra Moffett, Appellant, v. State of Texas Appellee. __________________________________________________________________ Appealed from the 291st Judicial District Court of Dallas County, Texas, the Honorable Stephanie Mitchell, Presiding __________________________________________________________________ Appellant’s Motion to Extend Time to File Notice of Appeal and Motion for Leave to Request Untimely Preparation of Clerk’s and Reporter’s Record __________________________________________________________________ Niles Illich SBOT: 24069969 Law Office of Niles Illich, Ph.D., J.D. 701 Commerce Street Suite 400 Dallas, Texas 75202 Telephone: (972) 802 − 1788 Facsimile: (972) 682 – 7586 Email: Niles@appealstx.com ATTORNEY FOR APPELLANT DEANDRA MOFFETT To the Honorable Justices of the Fifth Court of Appeals: Deandra Moffett presents this, his Motion to Extend Time to File Notice of Appeal and Motion for Leave to Untimely Designate Clerk’s and Reporter’s Records. INTRODUCTION 1. Deandra Moffett is the Appellant and the State of Texas is the Appellee. 2. On May 29, 2015, the Honorable Stephanie Mitchell of the 291st Judicial District Court of Dallas County revoked Moffett’s community supervision in cause number F-1399715 and adjudicated him guilty in cause number F-1355805. In the first instance the Court sentenced Moffett to spend ten years in the custody of the Texas Department of Criminal Justice and in the second instance the Court sentenced Moffett to spend twenty years in the custody of same. 3. Moffett’s trial attorney did not file a notice of appeal and the trial court did not appoint an appellate attorney to represent Moffett. Moffett filed his own pro-se notice of appeal on July 2, 2015. At that time, he was unaware that he had to also file a motion in this Court asking for leave to untimely file his notice of appeal or to request that the record be prepared. 4. Moffett received appointed appellate counsel on Thursday, July 2, 2015. Appointed appellate counsel has tried to secure an affidavit from Moffett explaining why he untimely filed his notice of appeal and why he did not simultaneously file a motion seeking leave to file an untimely notice of appeal in this Court. Moffett is incarcerated in the Dallas County Jail and this process has not been easy for him nor is it complete. ARGUMENT AND AUTHORITY 5. Rule 26.3 provides that a notice of appeal that is filed late but less than 16 days late may confer jurisdiction on this Court if that notice of appeal is accompanied by a motion seeking leave to file an untimely notice of appeal. TEX. R. APP. P. 26.3. 6. Rule 34.6(b) requires that “[a]t or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits to be included.” TEX. R. APP. P. 34.6(b). 7. Because Moffett is confined in the Dallas County Jail, Moffett is unable to attach an affidavit to support this motion but he will file one when it is available. 8. Moffett did not timely file a notice of appeal because he relied on his trial counsel to do this for him. Only when he learned that his counsel had not done so, Moffett filed his own, pro-se, notice of appeal. Moffett was ignorant of the rules requiring him to request leave from this Court to file his notice of appeal and he was equally ignorant of the requirement that he request the preparation of the clerk’s and reporter’s records. 9. Moffett asks this Court to consider his untimely notice of appeal and to permit this notice of appeal to confer jurisdiction on this Court. Further, Moffett asks for leave to untimely designated the Clerk’s and Reporter’s Record. PRAYER AND CONCLUSION 10. Moffett asks that this Court consider the circumstances of this request and to grant him leave to file an untimely notice of appeal and to file an untimely request for the production of the Clerk’s and Reporter’s Records. Respectfully Submitted, /s/ Niles Illich Niles Illich The Law Office of Niles Illich, Ph.D., J.D. 701 Commerce Street Suite 400 Dallas, Texas 75202-4518 Direct: (972) 802-1788 Fax: (972) 236-0088 Email: Niles@appealstx.com CERTIFICATE OF SERVICE This is to certify that, on July 9, 2015, a true and correct copy of this Request for an Extension of Time to File Notice of Appeal and Motion for Leave to Untimely File Request for Production of Clerk’s and Reporter’s Record was served on all parties of record as follows: VIA ELECTRONIC SERVICE Lori Ordiway Chief, Appellate Division Dallas County District Attorney’s Office 133 N. Riverfront Blvd. Dallas, Texas Dcdaappeals@dallascounty.org /s/ Niles Illich Niles Illich