                                                                                            PD-0597-15
                                                                           COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
November 5, 2015                                                         Transmitted 11/4/2015 11:21:27 AM
                                                                            Accepted 11/4/2015 1:23:26 PM
                                                                                            ABEL ACOSTA
                                  NO. PD-0597-15                                                    CLERK

          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                       AT AUSTIN, TEXAS


                       BERNARD WINFIELD SHORTT,
                               Petitioner

                                           v.

                             THE STATE OF TEXAS,
                                  Respondent


                     On discretionary review of a decision by the
                   Court of Appeals, Fifth District of Texas at Dallas
                          in Cause Number 05-13-01639-CR

          On appeal from the 194th Judicial District Court of Dallas County,
                     in Trial Court Cause Number F07-00193-M


        STATE’S MOTION FOR EXTENTION OF TIME TO FILE
                     THE STATE’S BRIEF


                                                Counsel of Record:

      SUSAN HAWK                                MARISA ELMORE
      Criminal District Attorney                Assistant District Attorney
      Dallas County, Texas                      State Bar No. 24037304
                                                133 N. Riverfront Blvd., LB-19
                                                Dallas, Texas 75207-4399
                                                (214) 653-3625
                                                (214) 653-3643 (FAX)
                                                Marisa.Elmore@dallascounty.org

                   ATTORNEYS FOR THE STATE OF TEXAS
      The State of Texas, by and through the Criminal District Attorney of

Dallas County, respectfully requests a 30-day extension of time for filing its

brief in response to Petitioner’s brief. In support of this motion, the State shows

the Court the following:

                                        1.

      A grand jury indicted Petitioner for burglary of a habitation. In

December of 2007, Petitioner pled guilty under a plea agreement, the trial

court found him guilty, placed him on deferred adjudication probation, and

ordered him to pay $9,085 in restitution.

      In May of 2013, the trial court revoked Petitioner’s probation,

adjudicated his guilt, and sentenced him to ten years’ confinement in the Texas

Department of Criminal Justice, but did not pronounce restitution or include it

in the judgment. After being incarcerated for five months, the trial court

granted Petitioner’s request for shock probation, suspended his ten-year

sentence, placed him on five years’ community supervision, and, over trial

counsel’s objection, ordered Petitioner to pay restitution in the amount of

$6,178, the remainder of the restitution Petitioner owed to the victim.

                                        2.

      Petitioner filed a direct appeal from the proceedings granting shock

probation with the Fifth District Court of Appeals at Dallas in Shortt v. State,


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No. 05-13-01639-CR. The Fifth Court of Appeals questioned whether it had

jurisdiction to entertain the appeal from an order of shock probation and

ordered the parties to file letter briefs. After considering the briefs, the Fifth

Court of Appeals dismissed the direct appeal for lack of jurisdiction. Shortt v.

State, No. 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App.—Dallas

May 12, 2015, pet. granted) (mem. op., not designated for publication).

      On September 16, 2015, this Court granted Petitioner’s petition for

discretionary review. Petitioner filed his brief on discretionary review on

October 29, 2015. Under Rule 70.2 of the Texas Rules of Appellate Procedure,

the State’s brief is due November 28, 2015. See Tex. R. App. P. 70.2.

                                          3.

      The State respectfully requests an extension of 30 days, until December

28, 2015, in which to file its brief in this case. This is the State’s first request for

an extension of time. The particular circumstances justifying this motion are as

follows:

      Due to undersigned Counsel’s current docket and upcoming deadlines

which were set prior to the deadline for this brief, Counsel is seeking additional

time to complete the State’s brief in the instant case. Since this Court granted

the petition for discretionary review in this case, Counsel’s workload has

included, but not been limited to, the following:


                                           2
    Preparing and filing a response to the appellant’s briefs in Williams
     v. State, cause numbers 05-15-00084-CR and 05-15-00085-CR, on
     October 15, 2015, in the Fifth Court of Appeals;

    Preparing a response to the appellant’s petition for discretionary
     review in Hopkins v. State, PD-0794-15, which was granted on
     September 16, 2015, and which is due on November 15, 2015; and

    Preparing a response to the appellant’s brief in Gage v. State, cause
     number 05-15-00538-CR, which is due on November 27, 2015, in
     the Fifth Court of Appeals.

Additionally, on December 9, 2015, Counsel is participating in oral argument

at the Fifth Court of Appeals in two casesHigh v. State, No. 05-15-00074-CR,

and Morales v. State, No. 05-14-01466-CR. Furthermore, Counsel is a part-time

Assistant District Attorney who only works three days per week. Because of

her workload and her part-time employment status, Counsel requests

additional time to properly research and respond to Petitioner’s brief in the

instant case.




                                       3
                                       4.

      For all the foregoing reasons, the State respectfully asks this Court to

extend the deadline for filing the State’s brief to December 28, 2015.

                                     Respectfully submitted,

                                      /s/ Marisa Elmore
Susan Hawk                           Marisa Elmore
Criminal District Attorney           Assistant District Attorney
Dallas County, Texas                 State Bar No. 24037304
                                     Frank Crowley Courts Building
                                     133 N. Riverfront Blvd., LB-19
                                     Dallas, Texas 75207-4399
                                     (214) 653-3625
                                     (214) 653-3643 fax
                                     Marisa.Elmore@dallascounty.org

                        CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing Motion for Extension of
Time to File the State’s Brief has been served on Michael Mowla, counsel for
Petitioner, at michael@mowlalaw.com, by using the service function in the
state electronic filing system on November 4, 2015.

                                       /s/ Marisa Elmore




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