David Alan Shepherd v. Lawrence Mitchell

CASE NO. 05-14-01235-CV

IN THE

FIFTH COURT OF APPEALS F\LEO \N
COURT OF APPEALS
DALLAS, TEXAS
MAR 11 zms
USA MATZ
CLERK, 5th DISTRICT
DAVID ALAN SHEPHERD, Appellant

v.
LAWRENCE MITCHELL, Appellee

On appeal from the 1341h Judicial District Court of
Dallas County, Texas, Case No. DC-10-07702, Honorable Judge Dale Tillqry, presiding.

MOTION FOR EXTENSION OF TIME AND ADVISORY TO COURT

TO THE HONORABLE JUDGES OF THE FIFTH COURT OF APPEALS:

Greetings: COMES NOW, David A. Shepherd, TDCJ-CID#00914828, your Appellant,

proceeding in pro se on his own behalf and files this, his and in support thereof, would

respectfully show the Court as follows :

I.

Identity of the Parties

1. David Alan Shepherd, Appellant

2. Lawrence B. Mitchell, Appellee

3. Kenneth Stillman, Counsel ofRecord, Appellee
 ADVISORY TO COURT

Appellant is an incarcerated, indigent litigant, proceeding in this matter before the Court

pro se and as a layman of the law. Appellant was sent a notice by the clerk of this court dated

December 02, 2014, in which it advised Appellant that the clerk of the trial court was late in

filing the Clerk's Record in this action Since that time Appellant received notice in regards to the

Clerk's Record being filed and a copy was provided to him as he is indigent. However, after

examining same, Appellant requested that several items missing be provided by supplementation

of the record. The clerk of the district clerk filed the Supplementation of the Record on February

10, 2015.Appellant was not provided timely notice of same had been filed by the district clerk,

nor was he provided with a free copy of said supplementation until today when a family member

went on-line and determined by viewing the electronic docket of the Court in this matter that the

Supplemental Clerk's Record was filed electronically on February 10, 2014. However, Appellant

was never notified by the Clerk of this Court in this regard, officially by USPS, as required by

the Texas Rules of Appellate Procedure. 1 Therefore, in an abundance of caution, Appellant's

family went to the Dallas County District Clerk's Office official website and downloaded a copy

of the Clerk's First Supplemental Record on Tuesday, February 12,2015 and sent said copy to

Appellant to enable him to perfect the Appellant's Brief. This proceeding followed.

II.

Request for Extension of Time to File Appellant's Brief

In view of the foregoing facts, Appellant asserts he was aware that Appellant's Brief was

originally due on February 17, 2015. Applicant sent a copy to the Court's dated February 17,

2015, the date he deposited it in the prison mail box to be forwarded by prison officials to the

1
In the interim period, Appellant requested in writing that he be provided with a free copy of the supplemental
record, which the Court granted on February 27, 2015, directing the clerk to prepare and send Applicant a free copy
of the First Supplemental Record filed electronically on February I 0, 2015.

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clerk of this Court for filing. The court notified Appellant on February 18, 2015, that since his

the Appellant's Brief was not filed on the 17th day of February, 2015, (See Appendix A), he had

ten days to file this motion for extension of time along with Appellant's Brief, which he placed

both a motion for extension of time as directed and a second copy of Appellant' s Brief into the

prison mail box on the 18th day ofFebruary, 2015, making it timely pursuant to Rule 38.8(a)(l).

Applicant was told by his family, after contacting the Clerk of the Court on February 22, 2015 by

phone, that the Court had still not received his Appellant's Brief and Motion for Extension of

time, so, in an abundance of caution, Appellant sent a copy of Appellant's Brief along with his

Motion for Extension of time by certified mail on February 23, 2015 (CMIRRR#95071000

19965054000252, (See Appendix B, copy of postal receipt dated February 23, 2015). On

February 27, 2015 Appellant's family called the clerk of the Court who informed them his brief

and motion for extension of time had not been received by the Clerk' s Office. Appellant's family

did a USPS inquiry tracking the brief and motion and attaches Appendix C, which show the brief

and motion, were delivered on March 02, 2015 . Appellant's family was told by the USPS the

delay in delivery was due to the bad weather in the area the court is physically located, which is

beyond Appellant' s control. On March 04, 2015, the Clerk of this Court sent a notice to

Appellant stating, inter alia, "The Court received but did not file Appellant's Brief because it was

tendered to the Court after its due date." !d. (See Appendix C). Further, it advised Appellant the

Court would not consider a late brief without a motion for extension of time that meets the

requirements of Tex. R. App. P. 10.1(a) and that the motion must be filed within ten-days of the

date of said notice (or by March 14, 2015) along with a $10.00 filing fee (See Appendix D)).

Herein Appellant represents to this Honorable Court that he has diligently pursued his appellate

rights and due to circumstances beyond his control described herein supra. Further, Appellant

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has already been deemed indigent as the Clerk's Office knows or should know, so he is unable to

submit the $10.00 filing fee required in the Clerk's Notice dated March 04, 2015. Moreover, in

compliance with Rule 10.1(a), Appellant has sent a copy of the instant motion to the Appellee's

attorney of record, Mr. Stillman, as indicated in his certificate of compliance and service

incorporated into this motion, infra.

While Appellant feels he had complied substantially with the Clerk's Notice Appellant's

Brief had not been filed on February 18, 2015, as demonstrated by the USPS certified mail

receipt dated February 23, 2015, when he sent another copy of Appellant' s Brief, along with his

motion for extension of time before the deadline of February 28, 2015 to do so. He now is

diligently attempting to cure any defect by following the instructions of the clerk's notice date of

March 04, 2015 within the ten (10) days allowed by same to do so.

WHEREFORE, Appellant prays that this Court grant his request for extension for time

by complying with the Clerk's Notice dated March 04, 2015, and direct the clerk to file his

Appellant's Brief.

SIGNED on this the 51h day of March 2015.

Huntsville, Texas 77349

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 CERTIFICATE OF CONFERENCE

I, David A. Shepherd, Appellant, pro se, herein certify that the filing party conferred, or

made a reasonable attempt to confer, with all other parties about the merits of the motion and IS

unaware whether those parties oppose the instant motion. 2

SIGNED on this the 5th day of February 2015.

2
See Rule !O(a)(5), Tex. R. App. P. Appellant is an indigent imprisoned litigant who has this day, sent a copy ofthis
motion to Appellee's attorney of record, (see certificate of service), which is his only ability to confer with all the
other parties to this suit. (See Appendix E, copy of cover letter addressed to Mr. Stillman, counsel for Appellee).

5
 CERTIFICATE OF SERVICE

I, David A. Shepherd, TDCJ-CID#00914828, Plaintiff, pro se, herein certify that a true

and correct copy of the foregoing instrument was sent to the Defendant in this matter, Lawrence

B. Mitchell, by placing same, in a U.S. mail box, first-class, postage paid, addressed to his

attorney of record:

Kenneth M. Stillman
Attorney at Law
12700 Park Central Drive, Ste. 1900
Dallas, Texas 75251

SIGNED on this the 5th day of February 2015.

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APPENDIX

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 .:fittll (.(outt of ~~ts
COO Co:M'.t!(~G Street, SL!i~ 2!;{)
Dal'a$, Texas 7~2

March 4, 2015

RE: C~ Nu. OS-14.0JL35-CV

Style: D;r;i,: AlAn Shepherd
v. Ln"W'Tcm:c Mirchdl

The C•un R!X'F.TVlill :SIJT Dll> KOT FILE Appcll.;u1t'a ~riefin the 4bovermenccd cause
!:>~usc dte brief wns tend~ to the Court artcr the due dat-e. T1'x: C.oun will oct consider a 1~11: bJ.ier
~·itbc•ut a motir>..< tor exu:nsi.m of time ;hat meets tneiC(tUiremcnts ofTeL R. App. P. 10.1\a). The
.:x:ensicl<1 motion ~nd S W filing lee arc d\1c to be t1!e4 \l.'ithin tc:~ d>lys.

Trial CnurtCasc !llo. DC-10-07702 Li;a. \1a:z, Clerk
DAVID ALAN SHEPHeRD
#9 J~!!2!! \VYl\ IS.C
810FM 232J
H \.'NTSV1LLl, TX 77349

jflftb . I.au·rence Milc~ell

Th~ C'mu1l(ECF.IV£D BUT OlD NOT I'TLE -"ppellam'• brief in the above referenced t:nu;c
becau;t the brief WM t<::Tllkred to :he Cou1~ after the dU<: dt:te. The Court will not COilSider alHtt brief
wit!l011t a motion fnr ;;xt.ensicm uf dn:~ thn1l'l'lCiet:< the reqt:iTcrnettr.; orTe;{. R. App. P. 10.\(a). 11lll
r:Je ~o . IJC- l()..On02 L-isa Mlatx, Clerk
KENNETH !-1 . STILL:l.1AN
LAW OFFICI! OF KL~F.TH ~f.STll..I.MAN
l2i'OO PARK CFNTRAL DR. STE !900
DALI.AS, TX i 5'251
• DEI.fVERED VTA E-MAIL"
APPENDIX

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APPENDIX

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APPENDIX

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10
 February 18,2015

Rt: : Ca>t: \ ·u. li5-14..()J235·CV

St) le: Da..-id A!~n Shephtfl!
v. Lllwr'-'l!CC Mltcl~ell

The time fm !'!ling appellant's l:ori<:f hAS expired. The ~llanl is directed!;:) file \JI•ithin tc:n
;Ja_,.:, both a._p;Jellan: '~> brief o.nd an extension motio•t tllal complie; wilh Tex. R. App. P 10.1 (11) $lld
J~~ ~() OC-Hl-0'1702 l-iSA Ma!Z, Clerk
0.4. VlD ALA~ Sl !BPH.£1U>
li914S28 WYt-;I'E
810 I'M 1821
HCl\'fSVlLLE. TX 77349

February 18, ZOIS

R£: Cas;: No. 05-14-012~\5-C:V

S!;y1¢: David Ala.u. Shepherd
v. Lawretl<:t ~1itchell

Tt.~ time for filing appell.nnf" tr.ief ~ cxpin!d. Th.: appcllllllt i' directed to file within t.m
dn}'S b(Jth nppellanr's br:ef a!ld an exten.\k>n TTK1tion thai complie~ with Tex.. R. App. P. IO.l(a) and
!0.5(b). lfthe b'ricfznd c:e !'ex. R. App. l'. 38.S(n)(l).

Trial C".cllt1 Case ~INETH .M. STILL\4AN
LAW Ot'FICE OF KENNt:.TH M.STJLU.t~
12700 PARK CF.NTRAI. OR. STE 1900
DALLAS. 1X 7525 I
APPENDIX

E

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March 05, 20 I5 Sent Via Certified Mail

Kenneth M. Stillman
Attorney at Law
12700 Park Central Drive, Ste. 1900
Dallas, Texas 75251

Re: David Alan Shepherdv. Lawrence Mitchell, Case No. 05-14-01235-CV;

;;. Enclosed documents

Dear Mr. Stillman:

Enclosed please find Appellant's Motion for Extension of Time to File Appellant's Brief, which was sent

to the clerk of the Court for filing this day. As I am incarcerated, there is no other way for me to confer

with you about the instant motion other than providing you with the true and correct copy enclosed herein

and therefore have no idea whether you will oppose this motion or not.

Thank you for your kind attention to this matter.

Sincerely,

Huntsville, Texas 77349

Enclosures

Cc: File
March 05, 2015

Lisa Matz, Clerk
Fifth Court of Appeals
600 Commerce Street, Suite 200
Dallas, Texas 75202

Re: Case No. 05-14-01235-CV

Style: David Alan Shepherd v. Lawrence Mitchell

~ Appellant Shepherd' s Motion for Extension of Time and Advisory to Court

Dear Clerk:

Enclosed please find the original copy of Appellant Shepherd's Motion for Extension of
Time and Advisory to Court, to be filed among the papers in the above-styled and numbered
cause. Please bring this to the attention of the Court.

By copy of this letter, I am forwarding a copy of this instrument to the attorney of record
representing the defendant/appellee, Mr. Kenneth M. Stillman, by placing same, first-class,
certified mail, return receipt requested, postage paid, in a U.S. mail box on this the 5th day of
March, 2015.

Thank you for your kind attention to this matter.

Sincerely,

Huntsville, Texas 77349

Enclosures

Cc: Mr. Kenneth M. Stillman
Attorney at Law
12700 Park Central Drive, Ste. 1900
Dallas, Texas 75251

File