PD-0019-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/2/2015 12:00:00 AM
Accepted 11/2/2015 7:38:02 AM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-0019-15, PD-0020-15 FILED IN
COURT OF CRIMINAL APPEALS
PD-0021-15, PD-0022-15 November 2, 2015
ABEL ACOSTA, CLERK
State of Texas, Appellant,
v, J
Albert G, Hill, III, Appellee,
On Discretionary Review from
Nos. 05-13-00421-CR, 05-13-00423-CR
05-13-00424-CR, and 05-13-00425-CR
Fifth Court of Appeals, Dallas
On Appeal from Nos. Fl 1-00180, Fl 1-00182,
Fll-00183, andFll-00191
204th District Court, Dallas County
Motion for Leave of Court by Appellee
to file the attached Reply Brief
To The Honorable Judges of the Court of Criminal Appeals:
Appellee Albert G. Hill, III respectfully files this motion for leave of court to
file the attached Reply Brief:
1. On July 24, 2015, Appellee filed his opening brief.
2. On September 9, 2015, the State filed its brief.
3. Undersigned counsel normally does not file a reply brief in this Court
because by the time a case reaches this Court and both parties have submitted their
opening briefs, when counting the number of briefs before the court of appeals, this
Court has before it a minimum of four briefs on the issues.
4. However, in preparing for oral argument in this case, studying the
relevant caselaw and record on appeal, and reviewing the State's arguments in its
brief, undersigned counsel determined that certain contentions made by the State
require a response. Those responses are contained in the attached Reply Brief.
5. In this Court, filing a reply brief is not a matter of right.
6. Texas Rule of Appellate Procedure 70.4 provides that this Court "may
direct that a party file a brief, or an additional brief, in a particular case. Additionally,
upon motion by a party the Court may permit the filing of additional briefs."
7. This Court directed Appellee to file a Brief, which he did on July 24,
2015. This Court also directed the State to file a Brief, which it did on September 9,
2015.
8. Appellee now respectfully moves for leave of court and asks this Court
to accept the attached Reply Brief in the form attached to this motion.
9. As the attached Reply Brief shows, the State makes various factual
contentions that Appellee believes are not correct. The State also makes various
arguments that Appellee believes divert this Court's attention from the issues, which
are that: (1) Appellee proffered evidence to the Motion to Dismiss alleging
prosecutorial misconduct; (2) the trial court in its discretion determined that the
proffered evidence was sufficient to entitle Appellee to a hearing; and (3) "some
evidence" means evidence that constitutes a colorable claim of a constitutional
violation that may prove the elements of a presumed selective prosecution claim,
and not evidence that proves the constitutional violation itself: (1) beyond a
reasonable doubt, (2) by clear and convincing evidence, or (3) by a preponderance
of the evidence.
10. Appellee also was required to clarify the appropriate standard that is
used by the Fifth Circuit. Precedent of the Fifth Circuit is certainly not binding on
this Court, but it may be persuasive, especially in this case.
11. Appellee thus believes that the attached Reply Brief will significantly
aid this Court's decisional process.
12. Finally, in accordance with the local practice in this Court, Appellee
submits the attached Reply Brief prior to the submission date, which is November
4,2015.
Prayer
Appellee prays that the Court grant this motion for leave of court to file the
attached Reply Brief, and accept the Reply Brief in the form attached to this motion.
Respectfully submitted,
George R. Milner III
Milner Finn Price
2828 N. Harwood St. Suite 1950
Dallas, Texas 75201
Phone:214-651-1121
Fax:214-953-1366
ItsRainingII@aol.com
Texas Bar No. 00784611
Leonard Thomas (Butch) Bradt
14090 Southwest Freeway Suite 300
Sugar Land, TX 77478
Phone:281-201-0700
Fax:281-201-1202
ltbradt@flash.net
Texas Bar No. 02841600
Attorney for Appellee
Michael Mowla
P.O. Box 868
Cedar Hill, Texas 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorneys for Appellee
A>V
/s/ Michael Mowla
By: Michael Mowla
Certificate of Service
I certify that on November 1, 2015, a true and correct copy of this document
was served on Chad Baruch by email to chad@jtlaw.com, on Lisa McMinn, the State
Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and on John
Messinger, Assistant State Prosecuting Attorney, by email to
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule
App. Proc. 68.11 (2015).
A>V
/s/ Michael Mowla
By: Michael Mowla