Suzanna Eckchum A/K/A Susan Eckhert v. State ( 2015 )

ACCEPTED
03-15-00270-CV
5229685
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/11/2015 12:44:02 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00270-CV
__________________________________________________________________
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS
5/11/2015 12:44:02 PM
__________________________________________________________________
JEFFREY D. KYLE
Clerk
SUZANNA ECKCHUM
Appellant,
v.
THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM
Appellee.
__________________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2
OF COMAL COUNTY
CAUSE NO. C2014-1690C
__________________________________________________________________
APPELLANT’S UNOPPOSED MOTION TO CONSOLIDATE OR,
ALTERNATIVELY, TO DISMISS
__________________________________________________________________
Mysha Lubke
BAKER BOTTS L.L.P.
State Bar No. 24083423
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701
(512) 322-2500
(512) 322-2501 (fax)
mysha.lubke@bakerbotts.com
ATTORNEY FOR APPELLANT
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TO THE HONORABLE THIRD COURT OF APPEALS:
This appeal, Cause No. 03-15-00270-CV, is a duplicate of Cause No.
03-15-00107-CV, currently abated on appeal in this Court. Accordingly, the Court
should consolidate these two appeals under Cause No. 03-15-00107-CV or,
alternatively, dismiss this Cause No. 03-15-00270-CV.
On February 17, 2015, Appellant Suzanna Eckchum’s notice of
appeal from the trial court’s “Stalking Protective Order” was filed in this Court
under cause number 03-15-00107. On March 13, 2015, this Court abated and
remanded that appeal to the trial court for a hearing on Appellant’s affidavit of
indigence. Hearings on Appellant’s affidavit of indigence as well as Appellant’s
motion for new trial filed on February 19, 2015 were set for April 2, 2015. The
hearing on Appellant’s affidavit of indigence was waived, but the trial court heard
argument on Appellant’s motion for new trial on April 2, 2015.
After the hearing, the trial court signed an “Amended Stalking
Protective Order” on April 7, 2015. Out of an abundance of caution,1 Appellant
filed a second notice of appeal of this April 7, 2015 “Amended Stalking Protective
Order” on May 5, 2015 to include the trial court’s amended order within the abated
1
See Matter of R.A., 14-11-00570-CV, 2015 WL 1956882, at *8 (Tex. App.—Houston [14th
Dist.] Apr. 30, 2015, no. pet. h.) (concluding the appellate court lacked appellate jurisdiction
under Tex. R. App. P. 27.3 of a second order in the same matter and based on the same facts as
the first order for which a notice of appeal was filed because the trial court did not address, in the
second order, whether the first order was being modified, vacated, or replaced).
Active 19110575.1 2
appeal. This notice of appeal was assigned cause number 03-15-00270-CV. As a
result, there are now two appeals of substantially similar stalking protective orders
signed by the same judge, under the same trial court cause number, involving the
exact same parties and issues, and for which the same records and documents have
been filed or are due to be filed in this Court.2
This Court has not yet reinstated the first appeal of the trial court’s
“Stalking Protective Order.” In the interest of justice and judicial efficiency, and
to promote the expedient and economical resolution of these appeals, this Court
should reinstate the first appeal and consolidate both appeals under the first cause
number 03-15-00107. See Berger v. Flores, 03-10-00874-CV, 2012 WL 4477405,
at *1 (Tex. App.—Austin Sept. 28, 2012, no pet.) (consolidating two appeals from
the same parties and trial court cause numbers); Livingston v. Arrington, 03-11-
00197-CV, 2011 WL 2297705, at *1 (Tex. App.—Austin June 10, 2011, no pet.)
(consolidating two appeals from a trial court’s oral ruling and later corresponding
written order). Alternatively, this appeal under cause number 03-15-00270 should
be dismissed, and under Texas Rule of Appellate Procedure 27.3, this Court should
treat the first appeal as from the subsequent, amended order and treat actions
2
The reporter’s record in the first cause number 03-15-00107-CV has been requested before and
after the scheduled hearing on Appellant’s affidavit of indigence, but has not yet been filed.
Thus, no reporter’s record has been filed in either appeal. The first cause number includes a
clerk’s record, and a supplemental clerk’s record has been requested to be filed in the first cause
number, as well.
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relating to the first appeal, as relating to the appeal of the subsequent, amended
order.
This Motion is filed in good faith and in the reasonable belief that it
should be granted and that no prejudice will result to any party if the Motion is
granted.
Respectfully submitted,
By: /s/ Mysha Lubke
Mysha Lubke
State Bar No. 24083423
mysha.lubke@bakerbotts.com
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701
Telephone: (512) 322-2500
Facsimile: (512) 322-2501
ATTORNEY FOR APPELLANT
SUZANNA ECKCHUM
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CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Appellant Suzanna Eckchum conferred with
Josh Presley, counsel for the State of Texas for the Protection of Hal Ketchum on
May 11, 2015 and determined that the State of Texas does not oppose this request.
/ s / Mysha Lubke
Mysha Lubke
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
by electronic filing and fax on May 11, 2015:
Counsel for the State of Texas for the Protection of Hal Ketchum:
The Honorable Jennifer A. Tharp
Comal County Criminal District Attorney
150 North Seguin, Suite 370
New Braunfels, Texas 78130
preslj@co.comal.tx.us
fax: 830-608-2008
/ s / Mysha Lubke
Mysha Lubke
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