ACCEPTED
05-14-01374-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
9/24/2015 10:31:45 AM
LISA MATZ
CLERK
05-14-01374-CR
Gaylon Lavon Davis § In the Court of Appeals
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
v. § for the Fifth9/24/2015
District10:31:45 AM
The State of Texas § of Texas at DallasLISA MATZ
Clerk
STATE’S SECOND MOTION FOR EXTENSION OF TIME TO FILE BRIEF
The State of Texas, by and through the Criminal District Attorney of
Dallas County, respectfully requests that the Court extend the time for filing
the State’s brief. In support of this motion, the State shows the following:
1.
A grand jury indicted Appellant for family violence assault enhanced
with a previous family violence assault conviction. (RR6: 3; CR: 11). The
indictment included an enhancement allegation that Appellant had a previous
conviction for aggravated assault. (RR6: 6; CR: 11). Appellant pleaded not
guilty and a jury trial commenced on August 19, 2014. (RR3: 6; CR: 88, 99).
On August 22, 2014, the jury returned its verdict. (RR6: 4-5). Appellant,
however, did not appear for the reading of the verdict when summoned by his
trial counsel. (RR6: 4-5). In Appellant’s absence, the trial court read the jury’s
verdict of guilty in open court and proceeded with the punishment phase of
trial. (RR6: 6; Supp. CR: 4). Appellant’s counsel entered a plea of not true to
the aggravated assault enhancement allegation on Appellant’s behalf. (RR6: 6).
At the conclusion of the punishment hearing, the trial court assessed
Appellant’s punishment at 20 years’ imprisonment in the Institutional Division
of the Texas Department of Criminal Justice. (RR6; 15; CR: 88; Supp. CR: 4).
Over a month later, Appellant was returned to custody and the trial court
pronounced sentence in his presence in open court on September 30, 2014.
(RR7: 4; Supp. CR: 4). Appellant filed a timely notice of appeal. (CR: 62).
2.
Appellant filed his brief on July 21, 2015. The undersigned counsel was
assigned to this appeal on July 24, 2015. The State’s brief was due on first
extension of time on September 19, 2015. This is the State’s second request for
an extension of time and the State files its brief with this motion. This case has
not yet been set for submission.
3.
Counsel is a part-time Assistant District Attorney who works only two
or three days per week. Since being assigned to this case, counsel filed
responses to the appellants’ briefs in the following cases:
Lewis v. State, appellate cause number 05-14-01436-CR, on
September 8, 2015;
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Morales v. State, appellate cause number 05-14-01466-CR, on
September 9, 2015; and
Butler v. State, appellate cause number 05-14-01484-CR, on
September 21, 2015.
The following cases on counsel’s docket also require responses:
Williams v. State, appellate cause numbers 05-15-00084-CR
and 05-15-00085-CR, which are due on first extension on
October 5, 2015;
Shortt v. State, PD-0597-15, petition granted on September
16, 2015, with an anticipated State’s brief filing due date of
November 15, 2015; and
Hopkins v. State, PD-0794-15, petition granted on September
16, 2015, with an anticipated State’s brief filing due date of
November 15, 2015.
In addition, on the days she works, counsel edits appellate briefs for other
Assistant District Attorneys and performs other duties required of her job such
as trial support. Finally, counsel was out of the office from July 31 to August
12, 2015.
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For all the foregoing reasons, counsel respectfully asks the Court to
extend the deadline for filing the State’s brief until September 24, 2015.
Respectfully submitted,
/s/ Marisa Elmore
Marisa Elmore (SBN 24037304)
Assistant District Attorney
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
214-653-3625
214-653-3643 (fax)
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing motion was served on
Kathleen A. Walsh, Assistant Public Defender and counsel for Appellant, by
electronic communication through eFileTexas.gov at
Kathleen.Walsh@dallascounty.org, on September 24, 2015.
/s/ Marisa Elmore
Marisa Elmore
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