in Re Jose Luis Aguirre ( 2015 )

ACCEPTED 03-15-00476-CR 7670706 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/3/2015 8:37:37 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-15-00476-CR IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL DISTRICT _____________________ FILED IN In Re JOSE LUIS AGUIRRE 3rd COURT OF APPEALS Appellant AUSTIN, TEXAS ____________________ 11/3/2015 8:37:37 PM JEFFREY Cause No. D-1-DC-02-0302388, Travis County, Texas, 403rd Judicial D. KYLE District, Honorable Brenda Kennedy, presiding Clerk ____________________ APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: COMES NOW, JOSE LUIS AGUIRRE, appellant, pursuant to U.S.Const., Amends. 5 & 14, Tex.Const., Art. I, Secs. 13 & 19, and T.R.A.P., not limited to Rules 4.1, 10.5, 38.6 and 38.9, and moves the Court to extend the time for filing appellant’s brief SIXTY (60) days to December 8, 2015, and shows: I. PROCEDURAL HISTORY. On June 6, 2005, appellant, on pleas of not guilty, was convicted by jury of capital murder. On or about September 11, 2013, he filed a Request For Appointment of Counsel Pursuant to Texas Code Criminal Procedure Art. 64. On September 134, 2014, he filed a writ of mandamus with this Court. On November 4, 2014, the trial court appointed counsel. Defendant’s Motion For Forensic DNA Testing was filed March 25, 2015. A State’s Memorandum In Opposition to same was filed May 26, 2015. Defendant filed a Motion for Discovery and Inspection on June 22, 2015. On July 2, 2015, without hear- ing, the trial court denied Defendant’s Motion For Forensic DNA Testing, entering find- ings of fact and conclusions of law. Defendant filed Defendant’s Objections To Court’s Order And Motion to Vacate Said Order, along with extensive exhibits, on July 23, 2015. [aguirre-m-brf-ext/p1of3] The trial court denied it on or about August 2, 2015. Notice of Appeal was filed on July 30, 2015. The clerk’s record was filed on or about August 31, 2015, supplemental clerk’s record on September 1, 2015 and September 9, 2015. The undersigned counsel filed a Motion to Withdraw As Counsel And Defendant’s Motion To Appoint Counsel For Appeal on August 3, 2015, and the Court granted. However, on September 4, 2015, the trial court purported to withdraw that order and “reappoint[ed ]” counsel “to continue representation in this case in the current post- trial proceedings and any appeal thereof.” Court’s Motion Withdrawing Order Allowing Counsel to Withdraw. Counsel did not learn that the court had entered such order until September 8, 2015. II. NO PREVIOUS EXTENSIONS. Appellant has had no extensions to file his brief. III. TIME OF MOTION. The brief was due October 9, 2015. The Court informed him of that on October 28, 2015, requesting a reply by November 9, 2015. IV. REASONS FOR EXTENSION OF TIME. Appellant requests an extension based on the following: 1. Counsel is a solo practitioner without support staff except telephone messaging. 2. On September 21, 2015, counsel received a letter notifying the curt reporter about late record and requesting tender of same by October 1, 2015. The court reporter sent a letter in reply stating there was no reporter’s record. A copy of this was not provided to Appellant’s counsel and he not otherwise know of it. The first he learned of it was when he received the October 28, 2015, letter notifying of late brief. He did not realize that the brief was due on October 9, 2015, nor that it was late until he received the October 28, 2015, letter. [aguirre-m-brf-ext/p2of3] 3. During the last 30 days, counsel is representing/has represented some 46 clients, with some 73 cases (approximately 41/68 appointed/retained) and disposed of some 10 (10/ 12). He is set for jury trial on November 30, 2015, right after Thanksgiving, on a case (State v. Onkst) that has had 2 prior continuances and the court has stated no further extensions will be allowed. There have been extensive pretrial motions and hearing and are literally thousands of pages of documentary evidence as well as up to 20 witnesses. 4. Counsel does not have sufficient time to complete the brief, as well as attend to all previously scheduled cases and obligations. by its due date November 9, 2015. He reasonably he may be able to complete it by December 8, 2015. 5. Thus, counsel asks this Honorable Court to extend the time for filing his brief of SIXTY (60) days to December 8, 2015, so that appellant will be given a full and meaningful appeal and accorded due process and due course of law, his right to appeal and effective assistance of counsel. WHEREFORE, appellant prays this Court grant this motion and extend the time for filing his brief for SIXTY (60) days to December 8, 2015. RESPECTFULLY SUBMITTED, /s/ Christopher P. Morgan Christopher P. Morgan State Bar No. 14435325 3009 N. IH 35 Austin, Texas 78722 (512) 472-9717 // FAX: 472-9798 ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE: I, Christopher P. Morgan, hereby certify a true copy of the foregoing Motion has been served on the Office of the District Attorney for Travis County, Texas on November 4, 2015, by mail to P.O. Box 1748, Austin, Texas 78767. /s/ Christopher P. Morgan Christopher P. Morgan [aguirre-m-brf-ext/p3of3]