                                                                                         ACCEPTED
                                                                                    03-15-00105-CR
                                                                                           4758239
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               4/3/2015 11:54:26 AM
                                                                                   JEFFREY D. KYLE
                                                                                             CLERK
                           No. 03-15-00105-CR

                      In the Third Court of Appeals                 FILED IN
                                                             3rd COURT OF APPEALS
                             Austin, Texas                       AUSTIN, TEXAS
                                                             4/3/2015 11:54:26 AM
                                                               JEFFREY D. KYLE
                                                                     Clerk
                            JUSTIN MURPHY,
                                            Appellant,

                                       v.

                        THE STATE OF TEXAS,
                                            Appellee.



              Appealed from the County Court-at-Law Number Three
          of Travis County, Texas, Trial Cause Number C-1-CR-07-200104



                     STATE'S MOTION TO DISMISS
                     FOR WANT OF JURISDICTION



TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:


     On behalf of the State of Texas, the Travis County Attorney asks the

Court to dismiss this appeal because notice of appeal was untimely.

     In 2013, Justin Murphy was charged with DWI, enhanced by a prior

(2007) conviction.
      After his 2013 DWI arrest, Murphy retained attorney Adam Reposa,

who filed a petition for a writ of habeas corpus, seeking to attack the 2007

OWl conviction on ineffectiveness/involuntariness grounds. CR 21-22. The

contention was that Murphy had an undiagnosed and untreated sleep

disorder at the time of the first DWI arrest, but that previous counsel,

Sandra Ritz, failed to   investigat~   the matter even after Murphy informed

her of it. CR 22. This is the second appeal that Mr. Reposa has taken from a

                                                                         1
trial-court conclusion that attorney Sandra Ritz is not ineffective.

      After two evidentiary hearings, the court entered an adverse order

and findings of fact and conclusions of law on August 28,2014. CR 46-48.

This August order, which is appended to this motion, was filed with the

                                           2
court clerk on August 29, 2014. CR 49. The court found no reason to

believe that Murphy had been coerced to plead guilty, and concluded that


             The first case is styled State v. Caret Johnson, No. 03-13-00726-CR. The
parties have submitted their briefs, and the case shows as "ready to be set."
      2       Counsel's second petition for writ of habeas corpus states that the
findings "were filed on Nov 2014." CR 49. The date stamp on the order and
findings is illegible in the State's copy of the clerk's record. But the Clerk
confirms that the date stamp shows an August 29, 2014 filing.
                                          2
the "representation afforded the Defendant by attorney Sandra Ritz falls

within the range of competence required of attorneys in criminal cases and

thus the Defendant's plea of guilty was not involuntary." CR 48. The trial

court further found that the doctrine of laches barred habeas corpus relief

because

     there was no impediment that prevented the Defendant from
     filing this writ considerably sooner than the spring of 2014. The
     passage of approximately 7 years would make it most difficult
     for this case to be litigated at this time.

CR 48 (citing Ex Parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013)).

     In late January of 2015, five months after the court entered its August

2014 order and findings, defense counsel filed three more documents:

•    A second petition for a writ of habeas corpus, which alleged 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. In support
     of this motion is appended an affidavit from a legal assistant, dated
     January 22, 2015. The affidavit vaguely asserted that the assistant
     attempted to locate the trial court's file "on several occasions and was
     informed by the clerks that the file was not able to be located." CR 50.
     The clerk's record does not show that this second petition was ever
     presented to the trial court.

•    A motion to reconsider the denial of habeas relief, asserting, among
     other things, that "numerous factual findings are inconsistent with
                                      3
      the evidence in the record and are relied upon to support the
      conclusions that Sandra Ritz was not ineffective, and that Petitioner's
      writ claim is barred by laches[.]" CR 52. These assertions essentially
      attacked the trial court's specific witness-credibility findings.

•     A motion for rehearing of the petition for a writ of habeas corpus,
      which asked for yet another evidentiary hearing so that the motion to
      reconsider could be "properly address[ed]." CR 54.

      On February 9, 2015, the trial court denied the rehearing motion's

request for further evidentiary hearing. CR 55. The next day, Murphy gave

"notice of appeal of the Order Denying Habeas Relief," referring to the trial

court's August 2014 order. CR 80.

      This notice of appeal was untimely. In criminal cases, the notice of

appeal must be filed within 30 days of the appealable order. TEX. R. APP. P.

26.2. Compliance with Rule 26.2 is essential to vest the Court with

jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

Murphy filed notice of appeal over five months after the trial court entered

the order from which he now seeks appellate review. The procedural

events of January 2015-such as the second petition, the motion to

reconsider, and the court's denial of a further evidentiary hearing- were


                                       4
not appealable orders that extended the deadline for filing notice of appeal.

See State v. Cowsert, 207 S.W.3d 347 (Tex. Crim. App. 2006). In Cowsert, for

instance, the Court held that the prosecution did not have a right to appeal

a denied motion to reconsider. The prosecution would need only to ask the

trial court to reconsider its ruling to "reset" the deadline, and allowing

such a reset would render ineffective the time limit for appeal. Id.

      Because Murphy failed to timely perfect appeal, the Court has no

jurisdiction to address its merits. Slaton, 981 S.W.2d at 210; Olivo v. State,

918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). The Travis County

Attorney therefore asks the Court to dismiss the appeal.

                                     Respectfully submitted,

                                     DAVID A. ESCAMILLA




                                        s ant Travis County Attorney
                                      tate Bar No. 10018000
                                     Post Office Box 1748
                                     Austin, Texas 78767
                                     512/854-9415

                                     ATTORNEYS FOR THE STATE OF TEXAS

                                        5
                       CERTIFICATE OF SERVICE

            I certify that I have sent a complete and legible copy of this
State's Motion to Dismiss via electronic transmission, to Mr. Murphy's
attorney of record, Mr. Adam Reposa, at
lawofficeofadamreposa@gmail.com on or before April3, 2015.




                    CERTIFICATE OF COMPLIANCE

      Relying on Corel WordPerfect's word-count function, I certify that
this document (counting all of its parts except for the attachment) contains
1015 words.




                                       6
Order and Findings of Fact
          and
   Conclusions of Law
                              NO. CR-1-CR-07-200104

THE STATE OF TEXAS                         §        IN THE COUNTY COURT
                                           §
vs                                         §        NUMBERTHREE
                                           §
JUSTIN LEE MURPHY                          §        TRAVIS COUNTY, TEXAS



      .ORDER AND FINDINGS OF FACT, CONCLUSIONS OF LAW


      On the 11th and 19th day of May, 2014, came on to be heard the Defendant's Wn"t
                                                                          - · !       '




of Habeas Corpus in the above cause. The Movant/Defendant Justi:fl; Lee Murphy

appeared in person and by counsel Adam Reposa and the State was represented bf i\.sst.
                                                                                   - ·.;

County Attorney John Lastovica. The Court having heard testimony, accepted        ev~ence


and affidavits, and having listened to arguments of counsels, makes the folfo'wing
                                                                                    -
                                                                                   -~




fmdings of fact and conclusions of law:


FINDINGS OF FACT:
      a) At approximately 2:48am on January 13, 2007 Deputy T. Roberts of the
         Travis County Sheriff's Office, while on routine patrol in his sheriff's vehicle,
         encountered the Defendant when he found the Defendant asleep in his vehicle
         with the engine running in the westbound outside lane of Southwest Parkway
         in Travis County, Texas.
      b) Upon asking the Defendant to exit the vehicle the deputy made the following
         observations; the Defendant has a strong odor of an alcoholic beverage,
         bloodshot and watery eyes, and slurred speech.
      c) The Defendant refused the deputies request to perform any field sobriety tests
         as well as submitting to an intoxilizer or blood test.
      d) The Defendant did not state he had suffered any head injuries or had any
         medical issues and admitted to having consumed "5 vodka and 7up and 3 shots
         of alcohol."
      e) Based on fmdings a-d the deputy was of the opinion the Defendant was
         intoxicated and arrested him for driving while intoxicated.


                                               46
                  •
t) Having obtained his release from jail the Defendant made an appointment with
   attorney Sandra Ritz based on the recommendations of his friends and co-
   workers. He visited her office on February 9, 2007 and was initially
   interviewed by her office manager, Ms. Kobler. Ms. Kobler testified that in
   her interview the Defendant mentioned having been drinking and getting into a
   fight in a bar and hitting his head. He did not mention any type of sleep
   disorder.
g) On February 12,2007 the Defendant retained attorney Sandra Ritz to represent
   him in the DWI case. In her testimony in this hearing attorney Ritz had slight
   recall of the Defendant and his case. She did recall that when she asked him
   why he was sleeping in his car he told her that, in addition to the drinking, he
   was in a fight in the bar and hit his head and may have suffered a concussion.
   She recalled he did not mention any sleep disorder or history of falling asleep.
h) Based on his relating to her he had been in a bar fight she interviewed the
   witnesses to the fight and got letters from them.
i) Attorney Ritz testified as to fees she charged and the discussion she had with
   the Defendant on how he wanted her to handle his case. She went over the
   strengths and weaknesses of the case with the Defendant. She testified she
   never told him how strong or weak the case was and left it to the Defendant to
   decide whether he wanted a trial or not. She testified that she never encouraged
   him to plead "no contest;" that it was his free and voluntary choice.
j) After the initial appearance he case was set for five pre-trial settings. It was
   then set for a jury trial four different times, twice being continued by the
   defense coWISel and twice not being "reached" for trial. It was then set for the
   defendant to plead guilty six times with the defendant on July 31, 2008
   entering a plea of"no contest"                                         -·.       :"·:·' ·:,
k) Attorney Ritz testified that the State offered the defendant a term Qfprobati~n
   in exchange for his plea. However, she testified that the defendant did not want
   to be on probation and have to follow all the conditions of probation so she'
   requested an alternative recommendation from the State. The State offer~ 8
   days confmement in the county jail (which in Travis County means a o~lor
   two day stay in jail) and the defendant elected to accept this offer and alter
   pleading was given this sentence.                                          c;,
I) The defendant had no further dealings with Ms. Ritz and at no time expressed
   dissatisfaction with the representation he received.
m) Ms. Ritz testified that she had exclusively practiced criminal law in Travis
   County for approximately 18 years. That she had handled approximately 2500
   cases of which 1200 had been DWI's. Of these cases she had tried
   approximately a half-dozen to a jury.
n) On September 2, 2011 the defendant was again arrested for DWI when he was
   found asleep behind the wheel of his vehicle at 4:21 am. There were numerous
   open beers in his vehicle and he admitted to having been drinking. He was
   administered field sobriety tests which the officer felt he failed. He refused to

                                         47


                                                                                         2
                        •
           submit to a breath or blood test.
                                                                •.




      o)   The defendant hired attorney Adam Reposa to represent him on his current
           DWI case. Mr. Reposa requested from the Court and was given funds to hire
           an expert witness to examine the defendant to determine whether he had a
           sleep disorder. The defendant was examined by Dr. John Douglas Hudson, MD
           who conducted tests and diagnosed the defendant with a sleep disorder;
           namely, narcolepsy. The doctors resume and his responses to written
           interrogatories were accepted into evidence.
      p)   The Court fmds the testimony of Deputy Sheriff Roberts, Office Manager
           Kobler and Attorney Ritz and Dr. John Douglas Hudson to be credible. The
           Court fmds the testimony of the Defendant Justin Murphy to be less than
           credible.
      q)   The Court fmds that based on the totality of the testimony and exhibits that the
           Defendant Justin Murphy did not reveal to the deputy, the office manager, or
           the attorney that he had a history of sleep problems. He did reveal his fight and
           blow to the head which was investigated by his attorney.
      r)   The Court fmds that the attorney did not in any fashion coerce the defendant to
           plead guilty; it was his free and voluntary decision to do so after being
           presented with the possible penalties he would face if he elected to try the case.
      s)   The Court finds that there was no impediment that prevented the
           Defendant from filing this writ considerably sooner than the spring of .... ,   ~    'jj
           2014. The passage of approximately 7 years would make iti most -=·
           difficult for this case to be litigated at this time.                ,

CONCLUSIONS OF LAW:
           The Court concludes that the relief requested should be barred under the ::·?
           doctrine oflaches as set forth in Ex Parte Perez, 398 S.W. 3d 206 (Tex . ~·
           Crim. App. 2013)                                                       .;

           The Court concludes that the representation afforded the Defendant by
           attorney Sandra Ritz falls within the range of competence required of
           attorneys in criminal cases and thus the Defendant's plea of guilty was
           not involuntary.

      TI-IEREFORE, On the basis of the above fmdings and conclusion the Court

DENIES the defense request to set aside the Defendant Justin Murphy's plea in the case

and affirms his conviction.

       Signed this the 28th day of August 2014.        ~
                                                       ~             4,M=
                                                    -nJD~G~~~s-riDJ~IN4PG=-------



                                               48
