Derek Kyle Auvenshine v. State ( 2015 )

ACCEPTED 07-15-00251-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 11/30/2015 8:44:15 PM Vivian Long, Clerk IN THE COURT OF APPEALS SEVENTH COURT OF APPEALS DISTRICT OF TEXAS FILED IN AT AMARILLO 7th COURT OF APPEALS AMARILLO, TEXAS DEREK KYLE AUVENSHINE, * 11/30/2015 8:44:15 PM APPELLANT * NO. 07-15-00251-CR VIVIAN LONG * 07-15-00253-CR CLERK VS. * 07-15-00254-CR * 07-15-00255-CR THE STATE OF TEXAS, * APPELLEE * STATE’S FIRST MOTION FOR EXTENSION OF TIME FOR FILING STATE’S BRIEF TO THE HONORABLE COURT OF APPEALS: COMES NOW, the State of Texas, by and through her District Attorney, and moves this Court to grant an extension of time for filing the State’s brief in these causes. The following allegations are made in support of this motion: I. These causes are styled Derek Kyle Auvenshine v. The State of Texas and are numbered CR14-0087, CR14-0088, CR14-0089, and CR15-0236 in the trial court, the 415th Judicial District Court of Parker County, Texas, and 07- 15-00251-CR, 07-15-00253-CR, 07-15-00254-CR, and 07-15- 00255-CR in this Court. II. This is an appeal from four convictions for the felony offenses of aggravated assault of a peace officer, PAGE ONE OF FIVE PAGES evading arrest, and a companion case, and the punishment assessed by the jury was confinement for forty-five (45) years, twenty-seven (27) years, forty-five (45) years, and thirty-five (35) years, respectively, in the TDCJ-ID with no fine. Appellant was sentenced on May 29, 2015, and is presently incarcerated. III. The present deadline for filing the State’s brief in these causes is on or before November 30, 2015. IV. The length of time requested for the extension is thirty (30) days or until Wednesday, December 30, 2015. V. This is the State’s first request for an extension of time to file its brief, and Appellant’s present attorney has requested and been granted one extension of time in order to file his brief. VI. The reasons relied upon to show good cause for this extension are as follows: (A) The Parker County District Attorney’s Office consists of the District Attorney and six assistants. The office is responsible for handling all felony case preparations and investigations, grand jury presentations, trial work, appellate work, and juvenile PAGE TWO OF FIVE PAGES cases. I, the undersigned prosecutor, am primarily responsible for all legal research duties and appellate work. The appellate cases which the undersigned prosecutor has submitted briefs in the last approximately thirty days or which briefing deadlines are impending are as follows: Rodney Chase Pettigrew v. The State of Texas, Cause No. 02-14-00494-CR, capital murder prosecution wherein direct appeal brief was filed with the Second Court of Appeals on November 9, 2015. Ex parte David Anthony Jones, Cause No. CR12-0103-01, lengthy writ of habeas corpus response in a multiple- count child sexual offense prosecution filed with the 43rd Judicial District Court, Parker County, on December 6, 2015. Aaron Jess Marlar v. The State of Texas, Cause Nos. 02-15-00136-CR and 02-15-00137-CR, direct appeal brief filed with the Second Court of Appeals on November 25, 2015. It was not until this day that the undersigned counsel knew that today was the filing deadline. He began to track down a copy of Appellant’s Brief and realized that he was never served with a copy of this brief via the efile service or otherwise. The undersigned counsel was finally able to retrieve a copy PAGE THREE OF FIVE PAGES of this brief off of this Court’s website; however, the State will obviously be unable to adequately reply before midnight this day. This request is not made in order to delay the orderly process of this appeal, but only so that the State may have adequate time to properly address Appellant’s points of error. VII. The Appellant’s appellate attorney of record, Ms. Brandy Oliphint, was contacted this evening or November 30, 2015, regarding this request, and she has no objection to the State being granted additional time in which to file its brief. WHEREFORE, PREMISES CONSIDERED, the State requests the Court grant the requested relief and extend the State’s briefing deadline and allow it to submit its brief on or before December 30, 2015, now that it actually has a copy of Appellant’s Brief. Respectfully submitted, /s/ Edward D. Lewallen EDWARD D. LEWALLEN Assistant District Attorney Parker County, Texas 117 Fort Worth Highway Weatherford, Texas 76086 (817) 598-6124 FAX NO. (817) 599-7628 BAR NO. 00791105 edward.lewallen@outlook.com PAGE FOUR OF FIVE PAGES CERTIFICATE OF SERVICE I hereby certify that a true copy of the State’s First Motion for Extension of Time for Filing State’s Brief, which was electronically filed this day with the Court in the above-referenced causes, was sent by first class mail to the office of Appellant’s appellate attorney of record, Ms. Brandy Oliphint, Attorney at Law, 1712 Santa Fe Drive, Weatherford, Texas 76086, on this the 30th day of November, 2015. /s/ Edward D. Lewallen EDWARD D. LEWALLEN CERTIFICATE OF CONFERENCE I hereby certify that a telephonic conference was held with the Appellant’s appellate attorney of record, Ms. Brandy Oliphint, on the 30th day of November, 2015, and she stated that she does not oppose the State’s foregoing motion. /s/ Edward D. Lewallen EDWARD D. LEWALLEN CERTIFICATE OF COMPLIANCE I hereby certify that according to the Microsoft Word word count tool this document contains 875 total words, inclusive of the items excepted by TEX.R.APP.P. 9.4(i)(1). This document is also in 14-point font. /s/ Edward D. Lewallen EDWARD D. LEWALLEN PAGE FIVE OF FIVE PAGES