PD-0597-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
November 5, 2015 Transmitted 11/4/2015 11:21:27 AM
Accepted 11/4/2015 1:23:26 PM
ABEL ACOSTA
NO. PD-0597-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN, TEXAS
BERNARD WINFIELD SHORTT,
Petitioner
v.
THE STATE OF TEXAS,
Respondent
On discretionary review of a decision by the
Court of Appeals, Fifth District of Texas at Dallas
in Cause Number 05-13-01639-CR
On appeal from the 194th Judicial District Court of Dallas County,
in Trial Court Cause Number F07-00193-M
STATE’S MOTION FOR EXTENTION OF TIME TO FILE
THE STATE’S BRIEF
Counsel of Record:
SUSAN HAWK MARISA ELMORE
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 (FAX)
Marisa.Elmore@dallascounty.org
ATTORNEYS FOR THE STATE OF TEXAS
The State of Texas, by and through the Criminal District Attorney of
Dallas County, respectfully requests a 30-day extension of time for filing its
brief in response to Petitioner’s brief. In support of this motion, the State shows
the Court the following:
1.
A grand jury indicted Petitioner for burglary of a habitation. In
December of 2007, Petitioner pled guilty under a plea agreement, the trial
court found him guilty, placed him on deferred adjudication probation, and
ordered him to pay $9,085 in restitution.
In May of 2013, the trial court revoked Petitioner’s probation,
adjudicated his guilt, and sentenced him to ten years’ confinement in the Texas
Department of Criminal Justice, but did not pronounce restitution or include it
in the judgment. After being incarcerated for five months, the trial court
granted Petitioner’s request for shock probation, suspended his ten-year
sentence, placed him on five years’ community supervision, and, over trial
counsel’s objection, ordered Petitioner to pay restitution in the amount of
$6,178, the remainder of the restitution Petitioner owed to the victim.
2.
Petitioner filed a direct appeal from the proceedings granting shock
probation with the Fifth District Court of Appeals at Dallas in Shortt v. State,
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No. 05-13-01639-CR. The Fifth Court of Appeals questioned whether it had
jurisdiction to entertain the appeal from an order of shock probation and
ordered the parties to file letter briefs. After considering the briefs, the Fifth
Court of Appeals dismissed the direct appeal for lack of jurisdiction. Shortt v.
State, No. 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App.—Dallas
May 12, 2015, pet. granted) (mem. op., not designated for publication).
On September 16, 2015, this Court granted Petitioner’s petition for
discretionary review. Petitioner filed his brief on discretionary review on
October 29, 2015. Under Rule 70.2 of the Texas Rules of Appellate Procedure,
the State’s brief is due November 28, 2015. See Tex. R. App. P. 70.2.
3.
The State respectfully requests an extension of 30 days, until December
28, 2015, in which to file its brief in this case. This is the State’s first request for
an extension of time. The particular circumstances justifying this motion are as
follows:
Due to undersigned Counsel’s current docket and upcoming deadlines
which were set prior to the deadline for this brief, Counsel is seeking additional
time to complete the State’s brief in the instant case. Since this Court granted
the petition for discretionary review in this case, Counsel’s workload has
included, but not been limited to, the following:
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Preparing and filing a response to the appellant’s briefs in Williams
v. State, cause numbers 05-15-00084-CR and 05-15-00085-CR, on
October 15, 2015, in the Fifth Court of Appeals;
Preparing a response to the appellant’s petition for discretionary
review in Hopkins v. State, PD-0794-15, which was granted on
September 16, 2015, and which is due on November 15, 2015; and
Preparing a response to the appellant’s brief in Gage v. State, cause
number 05-15-00538-CR, which is due on November 27, 2015, in
the Fifth Court of Appeals.
Additionally, on December 9, 2015, Counsel is participating in oral argument
at the Fifth Court of Appeals in two casesHigh v. State, No. 05-15-00074-CR,
and Morales v. State, No. 05-14-01466-CR. Furthermore, Counsel is a part-time
Assistant District Attorney who only works three days per week. Because of
her workload and her part-time employment status, Counsel requests
additional time to properly research and respond to Petitioner’s brief in the
instant case.
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4.
For all the foregoing reasons, the State respectfully asks this Court to
extend the deadline for filing the State’s brief to December 28, 2015.
Respectfully submitted,
/s/ Marisa Elmore
Susan Hawk Marisa Elmore
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
Marisa.Elmore@dallascounty.org
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Motion for Extension of
Time to File the State’s Brief has been served on Michael Mowla, counsel for
Petitioner, at michael@mowlalaw.com, by using the service function in the
state electronic filing system on November 4, 2015.
/s/ Marisa Elmore
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Shortt, Bernard Winfield
Combined Opinion