Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/16/2015 12:57:28 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 7/16/2015 12:57:28 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00105-CR *1 ACCEPTED ^[6096253] CLERK

No. 03 ‐ 15 ‐ 00105 ‐ CR Third Court Appeals Austin, Texas

J USTIN M URPHY , Appellant , v.

T HE S TATE OF T EXAS , Appellee.

Appealed from County ‐ ‐ Law Number Three Travis County, Texas, Trial Cause Number C ‐ 07 ‐ S TATE ’ S R ESPONSE TO THE M OTION TO R EHEAR THE C OURT ’ S D ISMISSAL OF THE A PPEAL FOR W ANT OF J URISDICTION O THE H ONORABLE J USTICES OF THE T HIRD OURT OF A PPEALS :

involves defendant’s interlocutory pre ‐ *2 trial writ of habeas corpus. The Third Court dismissed the appeal for want

of jurisdiction. Murphy has now responded the State’s motion to dismiss want of jurisdiction for the first time, by filing a motion for rehearing. motion asserts his notice of timely trial

court granted a a writ of corpus and authorized

an out ‐ time appeal.

Murphy appends as an exhibit his motion. The he relies part appellate record; indeed, it has never filed with clerk. Murphy’s therefore asks:

What effect, if any, should Third give appended

document?

B ACKGROUND Murphy found asleep wheel, engine running. He

smelled strongly alcoholic beverages, slurred and mumbled speech,

staggered, and admitted consuming five vodkas and three shots. CR 7–8.

To ensuing DWI charge he entered negotiated plea received eight

days jail $500 fine. 16–18.

2. 2011, Murphy was again charged with DWI, enhanced by the

conviction. After 2011 DWI arrest, Murphy retained attorney Adam

Reposa, who, in 2013, filed a petition a pre trial writ of habeas corpus

challenging the prior DWI conviction on ineffectiveness/involuntariness

grounds. CR 21–22. contention that trial counsel was

ineffective she failed investigate whether Murphy had sleep

disorder.

3. Murphy moved recuse Judge Lipscombe from hearing pre trial matter, on grounds bias; retired Judge Wisser was appointed

instead. CR 43. After two evidentiary hearings, Judge Wisser entered an

adverse order written findings conclusions 2014. CR

46–48. filed with clerk next day. CR 49. Among other

things, found that doctrine laches barred relief because

“there no impediment prevented Defendant filing this

writ considerably sooner[.]” 48. Five months later, defense counsel filed three more documents.

• On January 23rd, he filed writ habeas

corpus, alleging that counsel was “unable to obtain a copy of the written findings until after the time to file notice of appeal had expired.” CR 49. support of this motion he appended an affidavit a legal assistant, dated January 22, 2015, vaguely asserting that the assistant attempted locate the trial court’s file “on several occasions was informed by the clerks that the file was not able to be located.” CR 50.

The appellate record does show that this was ever presented the trial court, the only order associated with it in the clerk’s file unsigned. CR

• On January 27th, counsel filed motion reconsider the denial of

habeas relief, attacking the trial court’s specific witness credibility findings.

• On January 27th, he also filed motion for rehearing of petition writ habeas corpus, which asked for yet another evidentiary

hearing so reconsider could be “properly address[ed].” CR 54.

On February court denied motion’s request another evidentiary hearing. CR 55. order was filed with clerk same day it entered . CR 55.

5. On February 10th, seeking interlocutory appeal, counsel gave

“notice Order Denying Habeas Relief.” 80. only denying relief order.

6. On March 31st, the Third Court notified the parties that the clerk’s

record had filed, and reminded defense counsel that the docketing

statement was overdue must be submitted as soon as possible.

7. On April 3rd, the State filed motion to dismiss, on grounds that the

Third Court had no jurisdiction to hear the merits of the appeal the

notice of appeal was untimely.

8. Murphy did respond the State’s motion.

9. On June 18th, Third Court granted the motion dismissed

appeal want of jurisdiction.

10. On July 2nd, Murphy filed motion asking “rehear” this

disposition and, it would seem, reinstate dismissed appeal. The asserts that notice of appeal timely filed light of document,

which counsel appends, dated January 2015. signed is

titled “Order on Second Petition Writ of Habeas Corpus.” it, trial (1) finds Petitioner, through no fault own or his

attorney, denied opportunity order, and

(2) restarts clock filing notice appeal, January 26th. The does bear clerk’s date stamp. 51.

11. The has asked State’s counsel respond to Murphy’s

rehearing motion by July 16th.

D ISCUSSION The order appended as exhibit void

for at least two reasons.

1.1. The second petition for writ habeas corpus, which based, was unauthorized by statute. Murphy’s second petition for habeas relief unauthorized. The law allows second petition writ corpus only an

extremely limited instance: newly discovered testimony could not

have produced former hearing. petition must detail newly discovered testimony, must include witness’s affidavit. EX . ODE C RIM . P. art. 11.59 (West 2015). Because Murphy’s second

sought only extend appellate timetable, Judge Wisser had no authority consider it.

1.2. The had no jurisdiction enter order on second petition.

Furthermore, because did not comply with Art. 11.59, Judge Wisser had no authority grant it. Indeed, plenary power

expired thirty days entry 2014 order. EX . R. A PP . P.

26.2(a)(1); Ex parte Pleasant, No. 03 ‐ 11 ‐ 00629 ‐ CR, 2012 Tex. App. L EXIS 2346,

at *3 (Tex. App.—Austin March 21, 2012, pet. ref’d) (mem. op., not

designated publication) (citing Ex parte Delgado, 214 S.W.3d 56, 58 (Tex.

App.—El Paso 2006, pet. ref’d)); Ex parte Matthews, 452 S.W.3d 8, 13 (Tex.

App.—San Antonio 2014, no pet.); Fowler v. State, No. 01 12 00300 ‐ CR, 2013

Tex. App. L EXIS *2–3 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013,

no pet.) (mem. op., not designated publication). January 26th order

appended Murphy’s therefore void. Even if appended were not void, it cannot be given any

legal effect it has never made part record.

Appellate courts must hear determine record as filed. They may not consider documents attached briefs or motions that

do appear appellate record. Samara v. Samara, S.W.3d

*8 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Till v. Thomas, 10

S.W.3d 730, 733–34 (Tex. App.—Houston [1st Dist.] 1999, no pet.)); Perry v.

Kroger Stores Store No. 119 , 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no

writ); see also LaPointe v. State, 166 S.W.3d 289 n.3 (Tex. App.—Austin

pet. dism’d). And, Murphy could have asked clerk to supplement record under Rule 34.5(c) include exhibit he attaches

motion, has never made part trial ‐ clerk’s file.) T EX . C ODE C RIM . P. art. 2.21 (West Supp. (district county clerk must receive file all papers); EX . L OC . G OV ’ T

C ODE § 192.006(a) (West 2008) (county clerk custodian county court

records criminal cases). ONCLUSION AND P RAYER DWI has already seen more than its fair share of

defense created delay; Judge Wisser observed as much almost year ago,

when he concluded that Murphy’s pre claims were barred by

laches. Since then, Murphy has never contended that he unaware of order; only he tried some (undisclosed) time find

court’s file. 49–50. cannot excuse an untimely notice appeal,

when being unaware an appealable criminal does not

excuse untimely notice appeal. Dewalt v. State, S.W.3d 690

(Tex. App.—Austin pet. ref’d).

Because nothing properly before Court shows notice of timely, State asks overrule for rehearing.

Respectfully submitted, D AVID A. E SCAMILLA T RAVIS OUNTY A TTORNEY G ISELLE H ORTON Assistant Travis County Attorney State Bar No. 10018000 Post Office Box 1748 Austin, Texas 78767 512/854 A TTORNEYS FOR THE S TATE OF EXAS *10 C ERTIFICATE OF S ERVICE I certify I have sent complete legible copy this State ʹ s Motion Dismiss via electronic transmission, Mr. Murphy’s

attorney record, Mr. Adam Reposa, at

lawofficeofadamreposa@gmail.com on or before July

Giselle Horton ERTIFICATE OF C OMPLIANCE Relying Corel WordPerfect’s word count function, I certify that this (counting all its parts except attachment) contains

1,608 words.

Giselle Horton Assistant Travis County Attorney