                                                                        PD-0312-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 6/5/2015 11:27:59 AM
                        No. PD-0312-15                   Accepted 6/8/2015 3:26:14 PM
                                                                        ABEL ACOSTA
                                                                                CLERK
     IN THE TEXAS COURT OF CRIMINAL APPEALS


      ROBERT SCOTT SHEARER, Petitioner/Appellant

                              V.

        THE STATE OF TEXAS, Respondent/Appellee



             Petition for Discretionary Review
               th
  From the 10 Court of Appeals Cause No. 10-14-00031-CR;
         Appealed from County Court at Law No. 2
                    Brazos County, Texas
             Trial Court Cause Number 5054-A

   STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW


                            THE STATE OF TEXAS

                            RODNEY W. ANDERSON
                            Brazos County Attorney

                            ERIC K. QUISENBERRY
                            Assistant County Attorney
                            Brazos County, Texas
June 8, 2015                300 E. 26th Street, Suite 1300
                            Bryan, Texas 77803
                            Telephone: (979) 361-4300
                            Fax: (979) 361-4312
                            State Bar No. 24077850
                            equisenberry@brazoscountytx.gov

                    Oral Argument Requested



                               i
               IDENTITIES OF PARTIES AND COUNSEL



APPELLANT:                   ROBERT SCOTT SHEARER
                             917 Franklin, Suite 230
                             Houston, Texas 77002



APPELLEE:                    THE STATE OF TEXAS


                             RODNEY W. ANDERSON
                             Brazos County Attorney

                             ERIC K. QUISENBERRY
                             Assistant County Attorney
                             300 E. 26th Street, Suite 1300
                             Bryan, Texas 77803
                             equisenberry@brazoscountytx.gov



                             STATE PROSECUTING ATTORNEY
                             209 W. 14th Street
                             Austin, Texas 78701
                             information@spa.texas.gov




TRIAL JUDGE:                 HON. JIM LOCKE




                               ii
                      TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL…………………………….………ii

TABLE OF CONTENTS………………………………………………………….iii

INDEX OF AUTHORITIES………………………………………………..……..iv

STATEMENT REGARDING ORAL ARGUMENT……………………………...1

STATEMENT OF THE CASE…………………………………………………….1

STATEMENT OF PROCEDURAL HISTORY…………………………………...1

ARGUMENT……………………………………………………………….………3

 I. SHEARER’S PETITION IS UNTIMELY………………………….….....................3

 II. THE 10TH COURT OF APPEALS DID NOT HOLD IT LACKED JURISDICTION TO
     HEAR THE APPEAL……………….....………………………….…..…………4

 III. THE 10TH COURT OF APPEALS PROPERLY DISMISSED THE APPEAL FOR WANT
      OF PROSECUTION…………………….……………………………………..5

PRAYER…………………………………………………………………...………7

CERTIFICATE OF SERVICE……………………………………………………..8

CERTIFICATE OF COMPLIANCE……………………………………...………..9




                                 iii
              INDEX OF AUTHORITIES

STATUTES

TEX. R. APP. 66.3…………………………………………………………………...5

TEX. R. APP. 68.11………………………………………………………………….3

TEX. R. APP. 68.2…………..……………………………………………………….3

TEX. R. APP. 68.6…………………………………………………………………...4




                       iv
              STATEMENT REGARDING ORAL ARGUMENT

      Although Shearer failed to present any merited issue worth of discretionary

review and oral argument is not necessary, the State requests oral argument to

preserve its right to participate should the Court grant Shearer’s request.

                          STATEMENT OF THE CASE


      The 10th Court of Appeals properly dismissed Shearer’s appeal of a traffic

ticket for want of prosecution. Shearer never filed a brief and further failed to

respond to the Court’s request for specific information. The 10th Court never issued

an opinion nor made any holding regarding its jurisdiction, but rather dismissed the

appeal for want of prosecution after Shearer wholly failed to prosecute his appeal.

                 STATEMENT OF PROCEDURAL HISTORY


      As the 10th Court of Appeals dismissed Shearer’s appeal specifically and

solely for want of prosecution, a timeline of the procedural history in this case is

necessary for proper perspective of Shearer’s petition. The facts are as follows:

May 1, 2013 – Brazos County Justice of the Peace Precinct 1 issues a conviction

for the offense of speeding and assesses a $120 fine.

May 13, 2013 – Shearer files a Notice of Appeal and Appeal bond with Precinct 1.

December 19, 2013 – Brazos County Court at Law No. 2 places Shearer on 180

days deferred disposition for his traffic ticket and assesses a $200 special expense.


                                          1
December 30, 2013 – Shearer files his Notice of Appeal.

September 18, 2014 – The 10th Court of Appeals issues a letter setting a deadline

of October 20, 2014, for Shearer to file his Appellant’s Brief.

November 7, 2014 – The 10th Court of Appeals issues a letter stating that no brief

has been filed and setting a deadline of November 21, 2014, for Shearer to file a

response regarding why no brief has been filed.

???1 – Shearer filed a motion for extension of time to file his Appellant’s Brief.

December 17, 2014 – The 10th Court of Appeals issued a letter setting a deadline

of December 24, 2014, for Shearer to file a response to the Court’s question

regarding its jurisdiction to hear the appeal.

January 25, 2015 – The 10th Court of Appeals issued a memorandum opinion and

dismisses Shearer’s appeal for want of prosecution. Shearer’s motion for extension

of time to file his brief was dismissed as moot.

January 30, 2015 – Shearer filed a Motion for Rehearing.

February 19, 2015 – The 10th Court of Appeals denied Shearer’s Motion for

Rehearing, setting a petition for discretionary review deadline for March 23, 2015.



1
  For a large period of time during the appeal, Shearer served the State by provided copies of his
filings with the Brazos County District Attorney’s Office rather than the Brazos County
Attorney’s Office. As a result, the Brazos County Attorney’s Office, the prosecuting entity which
has handled the case since its filing in Justice of the Peace Court, has been unable to completely
verify the exact dates on certain actions taken by Shearer despite its best efforts to coordinate
with the Brazos County District Attorney’s Office and supplementation of information using the
10th Court of Appeals Web site.
                                                2
March 20, 2015 – Shearer filed a Motion to Extend Time to File Petition for

Discretionary Review requesting a 30-day extension.

March 25, 2015 – The 10th Court of Appeals granted a 30-day extension, making

the deadline to file April 22, 2015.

May 22, 2015 – Shearer files Petition for Discretionary Review.

                                   ARGUMENT


   I.    SHEARER’S PETITION IS UNTIMELY

        The 10th Court of Appeals issued its judgment on January 15, 2015,

dismissing Shearer’s appeal for want of prosecution. The Court overruled

Shearer’s Motion for Rehearing on February 19, 2015. As a result, a petition for

discretionary review was due March 23, 2015. TEX. R. APP. PRO. 68.2(a). The 10th

Court of Appeals subsequently granted a single thirty (30) day extension, creating

a filing deadline of April 22, 2015.


        Shearer did not file his Petition for Discretionary Review until May 22,

2015. Shearer states that his petition was not due until May 22, 2015, but provides

no evidence to support any addition extensions granted beyond the 30-day

extension granted by the 10th Court of Appeals.


        In addition, Shearer failed in his required duty to serve his petition on the

State Prosecuting Attorney. TEX. R. APP. PRO. 68.11.

                                          3
      As Shearer failed to submit a petition conforming to the governing rules, this

Honorable Court should refuse discretionary review. TEX. R. APP. PRO. 68.6.


   II. THE 10TH COURT OF APPEALS DID NOT HOLD IT LACKED JURISDICTION
        TO HEAR THE APPEAL


      Shearer asks for discretionary review by alleging the 10th Court of Appeals

erred in ruling it lacked jurisdiction to hear his appeal of a traffic ticket. However,

no such ruling was made and Shearer blatantly misquotes the opinion and

judgment of the appellate court.

      In a concise two-page opinion, the 10th Court of Appeals dismissed

Shearer’s appeal because of his total failure to pursue the matter.


      Under these circumstances, we conclude that the record demonstrates
      that appellant does not intend to pursue this appeal. Therefore, under
      our inherent authority, we dismiss this cause for want of prosecution.
      This cause is hereby dismissed.
(Petitioner’s Appendix 2) (internal citations omitted). Additionally, the judgment

issued by the Court also explicitly sets forth the grounds for dismissal.


      This cause came on to be considered and because appellants failed to
      demonstrate their intent to pursue this appeal, it is the opinion of this
      Court that the appeal should be dismissed; it is therefore ordered,
      adjudged and decreed that the appeal be, and hereby is, dismissed for
      want of prosecution.
There is no ambiguity in the language used and certainly no holding or ruling by

the Court that it lacked jurisdiction to hear the appeal.

                                           4
      As Shearer’s only complaint alleged in his petition concerns an action which

was never taken, he fails to provide any grounds for review and this Honorable

Court should refuse the petition.

   III. THE 10TH COURT OF APPEALS PROPERLY DISMISSED THE APPEAL FOR
         WANT OF PROSECUTION


      Shearer has failed to provide any decision made by the 10th Court of Appeals

setting forth grounds for discretionary review. See Tex. R. App. Pro. 66.3. As the

10th Court was never presented with an opportunity to issue an opinion or holding

regarding the merits of the appeal, the only possible applicable argument for

discretionary review would be to argue that its dismissal of the appeal for want of

prosecution so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of the Court of Criminal Appeal’s power of

supervision. See TEX. R. APP. PRO. 66.3(f).


      This is obviously no such case. Shearer never presented a brief on which the

10th Court of Appeals could review action taken by a lower court and wholly failed

to respond to any deadline set by the Court and rules governing practice before it.

The Court’s dismissal for want of prosecution was entirely proper and the only

possible action available when an appellant so blatantly abandons an appeal.


      Shearer’s brief was due October 20, 2014. On November 7, 2014, the Court

issued a letter indicating no brief had been filed and provided Shearer with
                                         5
fourteen days to provide a satisfactory response. Shearer did not respond within the

allotted time frame, but did file a motion for extension of time to file a brief.


      On December 17, 2014, the Court issued another letter, this time requesting

Shearer provide a response within seven days addressing a question regarding the

Court’s jurisdiction over such an appeal. Shearer never responded.

      On January 15, 2015, after Shearer failed to meet specific deadlines

provided by the Court on three separate occasions, the Court dismissed Shearer’s

appeal for want of prosecution. In its opinion, the Court made specific note of

Shearer’s lack of diligence in pursuing the appeal.


      In fact, throughout the process, appellant has only filed one this with
      this Court – a motion for extension of time to file a late brief that has
      not yet been filed.
(Petitioner’s Appendix 2). When Shearer subsequently filed a motion for

rehearing, he challenged the Court’s supposed holding that it lacked jurisdiction to

hear the appeal. At no point during the pendency of this matter before the 10th

Court of Appeals did Shearer file a brief or any other pleading setting forth any

grounds for review of reversal of the judgment of the trial court. Shearer’s petition

for discretionary review similarly lacks any allegation of any error in a ruling made

by any prior court in this matter.




                                           6
      Simply, Shearer asks this Court to reverse a ruling which was never made

after he failed to prosecute his appeal in any acceptable manner. He has failed to

present any order, ruling, or action actually taken by any court providing grounds

for reversal or further review of said action. He has failed to raise any issue worthy

of review and his petition should be summarily refused.

                                     PRAYER

      The State respectfully prays this Honorable Court refuse Shearer’s Petition

for Discretionary Review.

                                                    /s/ Eric K. Quisenberry____
                                                    ERIC K. QUISENBERRY
                                                    Assistant County Attorney
                                                    Brazos County, Texas
                                                    300 E. 26th Street, Suite 1300
                                                    Bryan, Texas 77803
                                                    Telephone: (979) 361-4300
                                                    Fax: (979) 361-4312
                                                    State Bar No. 24077850




                                          7
                          CERTIFICATE OF SERVICE

       I, Eric K. Quisenberry, attorney for the State of Texas, do hereby certify that
a true and correct copy of the foregoing document was sent to the following on this
the 5th day of June, 2015.
R. SCOTT SHEARER
917 Franklin, Suite 230
Houston, Texas 77002

STATE PROSECUTING ATTORNEY
209 W. 14th Street
Austin, Texas 78701
information@spa.texas.gov

                                                    /s/ Eric K. Quisenberry___
                                                    Eric K. Quisenberry




                                          8
                      CERTIFICATE OF COMPLIANCE

       At the request of the Court, I certify that this submitted filing complies with
the following requests of the Court:

1.    This filing is labeled with or accompanied by the following information:

      a. Case Name: ROBERT SCOTT SHEARER V. STATE OF TEXAS

      b. The Docket Number: PD-0312-15

      c. The Type of Brief: State’s Reply to Petition for Discretionary Review

      d. Word Count: 2,716

      e. The Word Processing Software and Version Used to prepare the filing:
         Microsoft Office Word 2010

2.    This disc or CD (or email attachment) contains only an electronic copy of
      the submitted filing and does not contain any appendices, any portion of the
      appellate record (other than a portion contained in the text of the filing)
      hypertext links to other material, or any document that is not included in the
      filing.

3.    The electronic filing is free of viruses or any other files that would be
      disruptive to the Court’s computer system. The following software, if any,
      was used to ensure the filing is virus-free: Symantec Endpoint Protection.

4.    I understand that a copy of this filing will be posted on the Court’s web site
      and becomes part of the Court’s record.

5.    Copies have been sent to all parties associated with this case.




                                                    /s/ Eric K. Quisenberry__
                                                    Eric K. Quisenberry


                                          9
