Hill, Albert G. ( 2015 )

PD-0019-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/2/2015 12:00:00 AM Accepted 11/2/2015 7:38:02 AM ABEL ACOSTA COURT OF CRIMINAL APPEALS CLERK PD-0019-15, PD-0020-15 FILED IN COURT OF CRIMINAL APPEALS PD-0021-15, PD-0022-15 November 2, 2015 ABELACOSTA.CLERK State of Texas, Appellant, v. Albert G. Hill, HI, Appellee. On Discretionary Review from Nos. 05-13-00421-CR, 05-13-00423-CR 05-13-00424-CR, and 05-13-00425-CR Fifth Court of Appeals, Dallas On Appeal from Nos. Fl 1-00180, Fl 1-00182, Fll-00183, and Fll-00191 204th District Court, Dallas County Motion for Leave of Court by Appellee to file the attached Reply Brief To The Honorable Judges of the Court of Criminal Appeals: Appellee Albert G. Hill, III respectfully files this motion for leave of court to file the attached Reply Brief: 1. On July 24, 2015, Appellee filed his opening brief. 2. On September 9, 2015, the State filed its brief. 3. Undersigned counsel normally does not file a reply brief in this Court because by the time a case reaches this Court and both parties have submitted their opening briefs, when counting the number of briefs before the court of appeals, this Court has before it a minimum of four briefs on the issues. 4. However, in preparing for oral argument in this case, studying the relevant caselaw and record on appeal, and reviewing the State's arguments in its brief, undersigned counsel determined that certain contentions made by the State require a response. Those responses are contained in the attached Reply Brief. 5. In this Court, filing a reply brief is not a matter of right. 6. Texas Rule of Appellate Procedure 70.4 provides that this Court "may direct that a party file a brief, or an additional brief, in a particular case. Additionally, upon motion by a party the Court may permit the filing of additional briefs." 7. This Court directed Appellee to file a Brief, which he did on July 24, 2015. This Court also directed the State to file a Brief, which it did on September 9, 2015. 8. Appellee now respectfully moves for leave of court and asks this Court to accept the attached Reply Brief in the form attached to this motion. 9. As the attached Reply Brief shows, the State makes various factual contentions that Appellee believes are not correct. The State also makes various arguments that Appellee believes divert this Court's attention from the issues, which are that: (1) Appellee proffered evidence to the Motion to Dismiss alleging prosecutorial misconduct; (2) the trial court in its discretion determined that the proffered evidence was sufficient to entitle Appellee to a hearing; and (3) "some evidence" means evidence that constitutes a colorable claim of a constitutional violation that may prove the elements of a presumed selective prosecution claim, and not evidence that proves the constitutional violation itself: (1) beyond a reasonable doubt, (2) by clear and convincing evidence, or (3) by a preponderance of the evidence. 10. Appellee also was required to clarify the appropriate standard that is used by the Fifth Circuit. Precedent of the Fifth Circuit is certainly not binding on this Court, but it may be persuasive, especially in this case. 11. Appellee thus believes that the attached Reply Brief will significantly aid this Court's decisional process. 12. Finally, in accordance with the local practice in this Court, Appellee submits the attached Reply Brief prior to the submission date, which is November 4,2015. Prayer Appellee prays that the Court grant this motion for leave of court to file the attached Reply Brief, and accept the Reply Brief in the form attached to this motion. Respectfully submitted, George R. Milner III Milner Finn Price 2828 N. Harwood St. Suite 1950 Dallas, Texas 75201 Phone:214-651-1121 Fax:214-953-1366 ItsRainingII@aol.com Texas Bar No. 00784611 Leonard Thomas (Butch) Bradt 14090 Southwest Freeway Suite 300 Sugar Land, TX 77478 Phone: 281-201-0700 Fax: 281-201-1202 ltbradt@flash.net Texas Bar No. 02841600 Attorney for Appellee Michael Mowla P.O. Box 868 Cedar Hill, Texas 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorneys for Appellee A»V /s/ Michael Mowla By: Michael Mowla Certificate of Service I certify that on November 1, 2015, a true and correct copy of this document was served on Chad Baruch by email to chad@jtlaw.com, on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and on John Messinger, Assistant State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015). A»V /s/ Michael Mowla By: Michael Mowla