AP-77,054
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
January 27, 2015 Transmitted 1/27/2015 3:43:17 PM
Accepted 1/27/2015 3:51:31 PM
ABEL ACOSTA
No. AP-77,054 CLERK
IN THE
Court of Criminal Appeals of Texas
RODNEY REED,
Appellant,
v.
THE STATE OF TEXAS
Appellee.
On Appeal from the 21st Judicial District Court, Bastrop County, Texas
STATE’S MOTION FOR ACCELERATED APPEAL
BRYAN GOERTZ
Criminal District Attorney
Bastrop County, Texas
MATTHEW OTTOWAY
Assistant Attorney General/
Assistant District Attorney
Bastrop County, Texas
Texas Bar No. 24047707
Post Office Box 12548, Capitol Station
Austin, Texas 78711
Tel.: (512) 936-1400
Fax: (512) 320-8132
Email: matthew.ottoway@texasattorney
general.gov
Attorneys for the State
MOTION FOR ACCELERATED APPEAL
I. Relevant Procedural Background
Appellant, Rodney Reed, is a death-sentenced inmate with a
presently-scheduled execution date of March 5, 2015. 3.CR.302–03. On
July 14, 2014, Appellant sought additional DNA testing via Chapter 64
of the Texas Code of Criminal Procedure. 2.CR.74–143. The State
opposed. 2.CR.161–229. A live hearing was held on November 25, 2014,
at which time the trial court denied Appellant’s Chapter 64 motion.
4.RR.47. The denial was reduced to writing on December 12, 2014, and
filed on December 16, 2014. 3.CR.342–48. Appellant’s notice of appeal
was filed on January 12, 2015. 3.CR.359–60.
This Court received the reporter’s record on January 15, 2015, and
the clerk’s record on January 16, 2015. Thus, Appellant’s opening brief
is due February 17, 2015 (February 15 is a Sunday and February 16 is
Presidents’ Day). Tex. Code Crim. Proc. art. 64.05; Tex. Gov’t Code §
662.003(a)(3); Tex. R. App. P. 4.1, 38.6, 71.3. The State’s responsive brief
would then be due March 19, 2015, two weeks after the presently-
scheduled execution date. Tex. R. App. P. 38.6, 71.3.
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ARGUMENT
I. The Court Should Accelerate This Appeal.
Pursuant to Rule 38.6(d) of the Texas Rules of Appellate Procedure,
this Court may, “in the interests of justice, shorten the time for filing
briefs and for submission of the case.” Tex. R. App. P. 38.6(d). Here,
there are ample reasons to hasten the briefing and submission deadlines.
The most obvious and pressing reason to shorten the applicable
deadlines is Appellant’s upcoming execution, now a little more than a
month away. Utilizing the rule-based briefing deadlines would place the
State’s response deadline beyond the presently-scheduled execution date,
an obvious impossibility. Further, allowing Appellant the full thirty-day
period for his opening brief would require an unduly short turnaround
for the State’s responsive brief—nine days—in order to give the Court a
minimum of a week to consider the appeal.
Additionally, Appellant—and any other death-sentenced, Texas
inmate—alone controlled the timing of his Chapter 64 motion. Despite
the fact that he was convicted and sentenced to death in 1998, and
despite the fact that the statutory framework for postconviction DNA
testing has been available since 2001, Act of April 5, 2001, 77th Leg.,
R.S., ch. 2, § 2, 2001 Tex. Sess. Law Serv. Ch. 2 (to be codified at Tex.
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Code Crim. Proc. arts. 64.01–64.05), Appellant filed his Chapter 64
motion fourteen years after his conviction and on the day his initial
execution date was set. Compare 2.CR.74–143, with 2.CR.149–50.
Indeed, the trial court found that Appellant had not adequately proven
that his Chapter 64 motion was “not made to unreasonably delay the
execution of sentence or administration of justice.” 3.CR.344; see Tex.
Code Crim. Proc. art. 64.03(a)(2)(B). Accelerating this appeal would
ensure that Appellant cannot “unreasonably delay [his] execution” by
utilizing the full time limits permitted by rule.
PRAYER FOR RELIEF
The State respectfully requests that the Court hasten the rule-
based briefing deadlines. The State respectfully suggests that Appellant
be permitted twenty days to file his opening brief and the State be
allowed to respond fifteen days later; specifically, Appellant’s brief would
be due February 5, 2015, and the State’s due on February 20, 2015.
Respectfully submitted,
BRYAN GOERTZ
Criminal District Attorney
Bastrop County, Texas
/s/ Matthew Ottoway
MATTHEW OTTOWAY
Assistant Attorney General/
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Assistant District Attorney
Bastrop County, Texas
Texas Bar No. 24047707
Post Office Box 12548, Capitol Station
Austin, Texas 78711
Tel.: (512) 936-1400
Fax: (512) 320-8132
Email: matthew.ottoway@texasattorney
general.gov
Attorneys for the State
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing
pleading was served by placing same in the United States mail, postage
prepaid, on this the 27th day of January, 2015, addressed and
electronically sent to:
Bryce Benjet Mark S. Chehi
40 Worth Street, Suite 701 Robert A. Weber
New York, New York, 10013 Jason M. Liberi
bbenjet@innocenceproject.org Nicole A. DiSalvo
Andrew G. Mirsis
Andrew F. MacRae SKADDEN, ARPS, SLATE, MEAGHER &
LEVATINO PACE LLP FLOM LLP
1101 S. Capital of Texas Hwy. One Rodney Square, P.O. Box 636
Building K, Suite 125 Wilmington, Delaware 19899
Austin, Texas 78746 mchehi@skadden.com
amacrae@levatinopace.com robert.weber@skadden.com
/s/ Matthew Ottoway
MATTHEW OTTOWAY
Assistant Attorney General/
Assistant District Attorney
Bastrop County, Texas
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Reed, Rodney
Combined Opinion