PD-0596-16 PD-0596-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/1/2016 4:03:52 PM
Accepted 6/1/2016 4:25:08 PM
ABEL ACOSTA
NO. CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN
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NO. 01-15-00055-CR
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS
AT HOUSTON
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JOSE PABLO LOPEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
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MOTION FOR EXTENSION OF TIME TO FILE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
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Winston E. Cochran, Jr.
Attorney at Law
Texas Bar No. 04457300
P.O. Box 2945
League City, TX 77574
Tel. (713) 228-0264
E-mail:winstoncochran@comcast.net
Court-appointed Counsel for Appellant
June 1, 2016
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW the appellant, Jose Pablo Lopez (hereinafter “Lopez”), through
the undersigned counsel, and respectfully requests that this Court extend the time to
file a petition for discretionary review of the decision in this cause by the Court of
Appeals for the First District of Texas, for reasons set forth as follows.
1. Lopez was indicted for Capital Murder. A long delay ensued between the
time of indictment and the time of trial while Lopez was absent from the United
States. At trial, a jury found Lopez guilty of Capital Murder. Pursuant to a mandatory
statute, punishment was assessed at confinement for life, with the possibility of
parole, in the Texas Department of Criminal Justice, Correctional Institutions
Division. Lopez gave timely notice of appeal, and the appeal was docketed as Jose
Pablo Lopez v. State of Texas, No. 01-15-00055-CR, in the Court of Appeals for the
First District of Texas.
2. On appeal Lopez raised six points of error, including a challenge to a trial
for Capital Murder under the terms of the extradition process. The Court of Appeals
delivered an opinion and rendered a judgment, affirming the judgment and sentence
of the district court, in a published opinion on April 26, 2016. No motion for
rehearing was filed by either party.
3. A petition for discretionary review was due on May 26, 2016. Lopez
hereby requests an extension of time to file a petition for discretionary review for
thirty days, until Monday, June 27, 2016. No previous requests for an extension of
time to file the petition for discretionary review have been filed.
4. Pursuant to TEX. R. APP. PROC. 10.5 and 68.2, this motion is timely if
filed on or before June 10, 2016.
4. The reasons for the requested extension are as follows:
A. Since the date of the Court of Appeals’ opinion in this cause, Lopez’s
counsel has been unable to complete a petition in this cause due to competing
obligations in trial, appellate, and habeas cases, including but not limited to the
following matters:
(1) Ex parte Roderick Carpenter, No. 1171502-A in the 232nd District
Court of Harris County, and not yet assigned a number in this Court.
This is a postconviction writ application in a Capital Murder case, with
a sentence of life without parole, in which a great deal of time has been
devoted recently to clarification of the record and the question of
whether and how Carpenter should seek to have the application
dismissed, rather than face a denial on the merits. Counsel was not able
to file this extension motion at the ordinary time because of activities
related to Carpenter’s case.
(2) Gulf Coast Rod, Reel and Gun Club, Incorporated, et al. v. United
States Army Corps of Engineers, et al., No. 16-40181 in the United
States Court of Appeals for the Fifth Circuit. Counsel is representing
the appellants pro bono publico in a challenge to a permit which was
issued for the closure of Rollover Pass, a famed fishing location on the
Bolivar Peninsula in Galveston County.
(3) State of Texas v. Christopher Dupuy, Nos. 15CR1660 and
15CR1661 in the 405th District Court of Galveston County. These are
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prosecutions of a former county court judge which have generated a
great deal of notoriety and difficulty because of the defendant’s former
status and an ongoing dispute as to constitutionality of the underlying
statute. Counsel has been working towards a finding that Mr. Dupuy is
incompetent to stand trial.
(4) State of Texas v. Daveon Napper, Nos. 15-CR-1566 and 15-CR-
1567 in the 56th District Court of Galveston County. These related
cases, for Aggravated Robbery and Aggravated Assault, arise from an
attempted “drug rip” in Texas City. Good-faith efforts to settle the cases
have failed, and trial looms on June 13. Pretrial discovery review and
other preparation has been substantial.
B. Compounding the difficulty of a flurry of difficult cases, on Mother’s Day
counsel was bitten on the finger by a dog, making the preparation of written materials
more laborious recently.
5. The issues which Lopez intends to present in his petition will be the
following questions, or a similarly worded questions:
A. Did the Court of Appeals err in upholding the authority of the
district court to try Lopez for Capital Murder in light of the provisions
of his extradition from Mexico?
B. Did the Court of Appeals err in upholding the jury charge because
the application paragraph correctly covered guilt as a “principal” when
there was no evidence that Lopez was guilty as a “principal” rather than
as a “party?”
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C. Did the Court of Appeals err in upholding the automatic assessment
of a life sentence, with the possibility of parole, against an Eighth
Amendment challenge?
D. Did the Court of Appeals err in upholding the automatic assessment
of a life sentence, with the possibility of parole, against a Texas
constitutional challenge?
E. Did the Court of Appeals err in upholding the automatic assessment
of a life sentence, with the possibility of parole, against a Fourteenth
Amendment “due process of law” challenge?
F. Did the Court of Appeals err in upholding the automatic assessment
of a life sentence, with the possibility of parole, against a Texas
constitutional “due course of the process of law” challenge?
The latter four issues are familiar to this Court from other contexts and might be
consolidated for the purposes of the petition, but even with that approach the petition
will be presenting a large number of important legal questions for this Court’s
consideration and the completion of the petition will be a big project.
6. This motion is not filed for purposes of delay but in order that justice may
be done for an indigent appellant.
Wherefore Lopez prays that this motion be granted and that the time for filing
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a petition for discretionary review in this cause be extended to June 27, 2016.
Respectfully submitted,
/s/ Winston E. Cochran, Jr.
Winston E. Cochran, Jr.
Attorney at Law
Texas Bar No. 04457300
P.O. Box 2945
League City, TX 77574
Tel. (713) 228-0264
E-mail:winstoncochran@comcast.net
Court-appointed counsel for Appellant
CERTIFICATE OF SERVICE
I certify that copies of this petition have been served on counsel for the
State electronically or by mail at the following addresses on June 1, 2016:
Galveston County District Attorney’s Office Hon. Lisa C. McMinn
Appellate Division State Prosecuting Attorney
Attention: Rebecca Klaren P.O. Box 13046
600 59th Street Austin, TX 78711-3046
Galveston, TX 77551
/s/ Winston E. Cochran, Jr.
Winston E. Cochran, Jr.
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Lopez, Jose Pablo
Combined Opinion