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.
2
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
3
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
4
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.
6
APPENDIX
A
7
.: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
B
8
~ i!. et- ~ ..,tttf p!'
~J .. f ft u... . t l'"l!' ~
p,.,,••1
r"f· {~duct
li 1< 4Cripti~>n ·lt ;· p ... ~\!8
;. ·! ~ · st~C l t::s~ 11ai I ·~ l.. a - ~ ge t.n-Je :<,('tf1
>) ,b . " 1 . ~l.l ~l .
' 't:tJhtCt"Jd O i• l' ·ii.. ··:-· t."lay ·rr-;. J; ~·~: ~t) ,
l' ;.:!.' r- u"rv £S.
:' c•rtif;.,$5 # 4M 71 0 · 9~ ·~t
~:% fc chttt~ k o ~-. ?r. .. di!l~ ·.. •ry r,t »ta~ Gf
t :ds ,' i.!it oua· r.-·.act: &
Hrtfcllt ,
C.onfir-r. Wttb ~ it s: .at USF'S . ~: o•. U ~ & tt:f : ~
~ .~ l f .. sttrvi C tl ·,,~)$if \ Ot" a:t'l
··.'.1 1f ·~ftr· vic•' •'<>~"- ::1 ot'lar i>u~ t111
l •lt4ticn5) "'' : :od 1 ' ·800 -122 · 1tl 1t .
I t·~· ,k• .
rt . .to Jf J.i~ ~ ~c ur· ~ ~' s,gr·v~ ycu .
i;d. $;\! LS hilA . ;)!·I !;T!I"PS All<> P~STA.:~
E4 ~ UN[)£ FOI< G.:.~ ·< J- ~ ' ::ED $li..'\11C:t:S Ofo:L'r .
APPENDIX
c
9
,. GtfD • ,.,. .....
......_.,_..
illUSPSCOM
Custom..- Servie~ ,.
USPS Tracking TM Haw qUf:eliona? W•'rw hue to tMip.
.
... f""''• ,. ••,~
; \ J .... .. . ....... . : ::.::-.:._:- ... r .·_.
Poot• I Produdc ffl-atuttJ.:
F·.,.L-CI~"' IN!'~ l.!W :il'~-c ~iAii' ~' . ZG i S . I· :."J,1 Arri'ff.."<' M '.JSPE Odgi: ·, NC.ff ~H
j:'':l' Fa..'"lty .-iOV$T.R LAND. -:x 7i 41P.
Trockfre (or ,..,.IPII number
Tr~~c:klt
HQ.PI'UI.Lf*S ()H.A'801.''T.~CO .. Onti;RUSI>S$ft0 L!leALIMI'OAMATIOH
c.,..,... ~·
~"·~
- .-. uow>SH