PD-0157-15
PD-0157-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
February 11, 2015 Transmitted 2/9/2015 11:40:32 AM
Accepted 2/11/2015 2:56:28 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
GENE ALLEN BURKS, §
Appellant §
v. § NO. PD-____ 15
§
THE STATE OF TEXAS, §
Appellee §
FIRST MOTION FOR EXTENSION OF TIME FOR
FILING OF STATE’S PETITION FOR REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State requests that the Court grant an extension of time for the
filing of the State’s petition for review in this case. TEX.R.APP.P. 10.5(b) &
68.2(c). The following allegations are made in support of this motion:
-I-
The court below is the Court of Appeals for the Second Court of
Appeals District of Texas. The style and number of the case in the court of
appeals is Gene Allen Burks v. The State of Texas, cause number
02-13-00560-CR. On January 8, 2015, the Second Court of Appeals
reversed the trial court’s conviction in a published opinion authored by
Justice Sue Walker. No motion for rehearing was filed.
- II -
Charged with felony driving while intoxicated, Appellant relied on the
Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct.
1552 (2013) during a pretrial suppression hearing. The trial court, Hon.
Scott Wisch, rejected Appellant’s motion to suppress, and the Fort Worth
Court of Appeals reversed that decision. Burks v. State, ___ S.W.3d ___,
2015 WL 115964 (Tex. App.—Fort Worth Jan. 08, 2015).
- III -
The appeal was perfected on November 18, 2013, the date notice of
appeal was filed.
- IV -
The current deadline for filing the State’s petition for discretionary
review is February 9, 2015. No extension has previously been granted
regarding the State’s petition.
-V-
The extension is not requested for purposes of delay but rather to
adequately brief the legal issues warranted by the decision of the court of
appeals.
- VI -
Counsel has had the following other obligations which have prevented
her from completing the State’s brief. Counsel filed her State’s reply brief in
Charles Jerome McClenty v. State of Texas, cause number
02-12-00347-CR. Before the Eleventh Court of Appeals, counsel
presented oral argument in Laura Denise Moore v. State, cause number
11-13-00347-CR. In that case, counsel also filed a lengthy post-submission
letter brief of additional authorities. For all of these reasons, counsel
requests an additional thirty days in which to file the State’s petition.
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court grant this First Motion for Extension of Time for Filing the
State’s Petition for Discretionary Review and extend the time for filing of the
State’s brief for thirty days to March 11, 2015.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR, Assistant
Criminal District Attorney
Chief of the Appellate Section
/s/ TANYA S. DOHONEY
TANYA S. DOHONEY, Assistant
Criminal District Attorney
State Bar No. 02760900
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
COAappellatealerts@tarrantcounty.com
CERTIFICATE OF SERVICE
A true copy of the State’s motion has been e-served to opposing
counsel, Hon. Abe Factor, lawfactor@yahoo.com, Factor & Campbell, LLP,
5719 Airport Frwy, Fort Worth, Texas 76117, and to the State Prosecuting
Attorney, the Hon. Lisa McMinn, information@spa.texas.gov, P.O. Box
13046, Austin, Texas 78711 this 9th day of February, 2015.
/s/ TANYA S. DOHONEY
TANYA S. DOHONEY
H:\DOHONEY.D11\MOTIONS\020715 burks pdr 1x.docx