Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 08/24/15 3:34:18 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00284-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/24/2015 3:34:18 PM KEITH HOTTLE CLERK IN THE TEXAS COURT OF APPEALS FOR THE FOURTH APPELLATE DISTRICT KENNETH ALLEN GOETZ , §
Appellant §
§
v. § No. 04-15-00284-CR
§
THE STATE OF TEXAS , §
Appellee. §
SECOND AMENDED UNOPPOSED THIRD MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S ( ANDERS [1] ) BRIEF TO THE HONORABLE FOURTH COURT OF APPEALS:
Counsel for Appellant Kenneth Allen Goetz, herein files this Second Amended Unopposed Third Motion for Extension to File Appellant’s
( Anders ) Brief, for the following good cause:
1. Counsel filed a recent First Amended Second Motion to Extend Time to file Appellant’s Anders Brief, (“First Amended Motion”). This
Court has yet to rule on Appellant’s First Amended Motion.
2. Prior to expiration of the filing due date as requested in the First Amended Motion and while conducting a final review of the record in
relation to the Brief, counsel noticed for the first time and became concerned
with a previously unnoticed defect in the record potentially creating a
question of whether this Court of Appeals has jurisdiction in this cause.
*2 Specifically, on May 7, 2015, the Bexar County District Clerk filed with this Court of Appeals, its “Certificate of Notice of Appeal to the Fourth
Court of Appeals” (“Clerk’s Certificate”) where the clerk checks the
underlying basis of a defendant’s appeal in item #7 which sets forth several
categories concerning how the “trial” was held. See 1 CR 60 In Mr. Goetz’s
case, rather than the clerk putting an “X” next to category, “Motion to
Revoke Community Supervision,” the clerk put an “X” next to “Plea of
Guilt/Nolo Contendere to the court – negotiated plea agreement followed by
the court.” 1 CR 60 As applied, assessment of the basis of Goetz’s appeal
(the notice of appeal was general in nature) determines the jurisdictional
viability of such appeal. See Tex. C. Crim. Proc. arts. 42.12 §5, 44.02, &
Tex. R. App. Proc. 25.2(a)(2). Under the Clerk’s Certificate, the basis
appears to be a plea bargained case in which appeal would be permitted only
if the trial court gave permission or if motions had been filed and ruled upon.
See Tex. R. App. Proc. 25.2(a)(2). Since the record does not reflect either
permission by the trial court to appeal or that any motion were filed,
acceptance of the basis of the appeal as certified by the district clerk would
create confusion and potentially result in dismissal of Goetz’s appeal.
3. By contrast, the “Trial Court’s Certification of Defendant’s Rights of Appeal” dated April 2, 2015, (“Trial Court’s Certification”) does
reflect that the proceeding from which Goetz seeks to appeal “is an
adjudication of guilt following a deferred adjudication, and defendant has a
limited right of appeal.” 1 CR 55
6. Counsel’s intention was to file a motion asking for abatement of the due date for Appellant’s Brief until the defect in the record could be
corrected under Tex. R. App. Proc. 37.1-2, however after due consideration,
counsel elected to file Appellant’s Brief and Motion to Withdraw and by this
document call attention t the defect for this Court’s consideration rather than
delay the proceedings further.
The day before noticing the referenced defect, counsel was still experiencing problems with his computer and conferred with opposing
counsel who did not oppose a brief extension.
Given the foregoing basis shown above, that this Court has yet to rule on counsel’s prior First Amended Third Unopposed Motion for Extension of
Time to File Appellant’s brief, and that Appellant’s ( Anders ) Brief as well as
counsel’s Motion to Withdraw have been filed on August 21, 2015, counsel
respectfully requests this Court grant an Extension of Time to file
Appellant’s Brief until August 21, 2015.
This motion is not filed for purposes of delay but that justice be done. *4 Respectfully submitted, LAW OFFICES OF ANTHONY M. SMITH By:__/s/Anthony Martin Smith Anthony Martin Smith SBN#18649425 3401 Broadway, No. 90391 San Antonio, TX 78209 210-281-9000: T 210-247-6176: F Counsel for Appellant CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties which are listed
below on August 24, 2015 as follows: Appellee’ counsel, Rico Valdez,
Assistant Criminal District Attorney, 300 Dolorosa, Ste. 5030 by FAX: 210-
335-0784.
_/s/ Anthony Martin Smith_
[1] Anders v. California , 386 U.S. 738 (1967).