                                                                         PD-0019-15
                                                     COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                    Transmitted 11/2/2015 12:00:00 AM
                                                       Accepted 11/2/2015 7:38:02 AM
                                                                         ABEL ACOSTA
   COURT OF CRIMINAL APPEALS                                                   CLERK




                                                               FILED IN
          PD-0019-15, PD-0020-15                      COURT OF CRIMINAL APPEALS


          PD-0021-15, PD-0022-15                            November 2, 2015


                                                          ABELACOSTA, CLERK


          State of Texas, Appellant,
                          v.
                                                                    V
        Albert G. Hill, III, Appellee.
            On Discretionary Review from
        Nos. 05-13-00421-CR, 05-13-00423-CR
        05-13-00424-CR, and 05-13-00425-CR
            Fifth Court of Appeals, Dallas

      On Appeal from Nos. Fl 1-00180, Fl 1-00182,
              Fll-00183, and Fll-00191
          204th District Court, Dallas County




Motion for Leave of Court by Appellee
   to file the attached Reply Brief
To The Honorable Judges of the Court of Criminal Appeals:

        Appellee Albert G. Hill, III respectfully files this motion for leave of court to

file the attached Reply Brief:

        1.    On July 24, 2015, Appellee filed his opening brief.

        2.    On September 9, 2015, the State filed its brief.

        3.    Undersigned counsel normally does not file a reply brief in this Court

because by the time a case reaches this Court and both parties have submitted their

opening briefs, when counting the number of briefs before the court of appeals, this

Court has before it a minimum of four briefs on the issues.

        4.    However, in preparing for oral argument in this case, studying the

relevant caselaw and record on appeal, and reviewing the State's arguments in its

brief, undersigned counsel determined that certain contentions made by the State

require a response. Those responses are contained in the attached Reply Brief.

        5.     In this Court, filing a reply brief is not a matter of right.

        6.     Texas Rule of Appellate Procedure 70.4 provides that this Court "may

direct that a party file a brief, or an additional brief, in a particular case. Additionally,

upon motion by a party the Court may permit the filing of additional briefs."

        7.     This Court directed Appellee to file a Brief, which he did on July 24,

2015. This Court also directed the State to file a Brief, which it did on September 9,

2015.
      8.     Appellee now respectfully moves for leave of court and asks this Court

to accept the attached Reply Brief in the form attached to this motion.

      9.     As the attached Reply Brief shows, the State makes various factual

contentions that Appellee believes are not correct. The State also makes various

arguments that Appellee believes divert this Court's attention from the issues, which

are that: (1) Appellee proffered evidence to the Motion to Dismiss alleging

prosecutorial misconduct; (2) the trial court in its discretion determined that the

proffered evidence was sufficient to entitle Appellee to a hearing; and (3) "some

evidence" means evidence that constitutes a colorable claim of a constitutional

violation that may prove the elements of a presumed selective prosecution claim,

and not evidence that proves the constitutional violation itself: (1) beyond a

reasonable doubt, (2) by clear and convincing evidence, or (3) by a preponderance

of the evidence.


       10.   Appellee also was required to clarify the appropriate standard that is

used by the Fifth Circuit. Precedent of the Fifth Circuit is certainly not binding on

this Court, but it may be persuasive, especially in this case.

       11.   Appellee thus believes that the attached Reply Brief will significantly

aid this Court's decisional process.
      12.    Finally, in accordance with the local practice in this Court, Appellee

submits the attached Reply Brief prior to the submission date, which is November

4,2015.

                                      Prayer

      Appellee prays that the Court grant this motion for leave of court to file the

attached Reply Brief, and accept the Reply Brief in the form attached to this motion.

                                       Respectfully submitted,

                                       George R. Milner III
                                       Milner Finn Price
                                       2828 N. Harwood St. Suite 1950
                                       Dallas, Texas 75201
                                       Phone:214-651-1121
                                       Fax:214-953-1366
                                       ItsRainingII@aol.com
                                       Texas Bar No. 00784611


                                       Leonard Thomas (Butch) Bradt
                                       14090 Southwest Freeway Suite 300
                                       Sugar Land, TX 77478
                                       Phone:281-201-0700
                                       Fax:281-201-1202
                                       ltbradt@flash.net
                                       Texas Bar No. 02841600
                                       Attorney for Appellee

                                       Michael Mowla
                                       P.O. Box 868
                                       Cedar Hill, Texas 75106
                                       Phone: 972-795-2401
                                       Fax: 972-692-6636
                                       michael@mowlalaw.com
                                       Texas Bar No. 24048680
                                       Attorneys for Appellee
                                      A>V
                                     /s/ Michael Mowla
                                     By: Michael Mowla


                              Certificate of Service


      I certify that on November 1, 2015, a true and correct copy of this document
was served on Chad Baruch by email to chad@jtlaw.com, on Lisa McMinn, the State
Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and on John
Messinger,      Assistant   State   Prosecuting     Attorney,    by     email   to
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule
App. Proc. 68.11 (2015).


                                      A»V
                                     /s/ Michael Mowla
                                     By: Michael Mowla
