                                                                                                   ACCEPTED
                                                                                               12-14-00368-CR
                                                                                  TWELFTH COURT OF APPEALS
                                                                                                TYLER, TEXAS
                                                                                          7/1/2015 10:51:56 AM
                                                                                                 CATHY LUSK
                                                                                                        CLERK

                                  NO. 12-14-00368-CR

JOHN CALVIN MARSHALL                         §      IN THE COURT OF APPEALS
                                                                        FILED IN
                                             §                   12th COURT OF APPEALS
VS.                                          §      TWELFTH APPELLATE TYLER,  TEXAS
                                                                          DISTRICT
                                             §                   7/1/2015 10:51:56 AM
STATE OF TEXAS                               §      TYLER, TEXAS      CATHY S. LUSK
                                                                          Clerk

             APPELLANT’S RESPONSE TO STATE’S MOTION FOR LEAVE
                             TO FILE LATE BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

        Now comes JOHN CALVIN MARSHALL, Appellant in the above styled and

numbered cause, and files this motion responding to the State’s Motion for Leave to File

Late Brief, and for good cause shows the following:

        1.    This case is on appeal from the 294th Judicial District Court of Van Zandt

County, Texas.

        2.    The case below was styled the State of Texas vs. John Calvin Marshall and

numbered CR11-00070.

        3.    Appellant was convicted of Burglary of a Habitation with Intent to Commit

Sexaul Assault.

        4.    Appellant was assessed a sentence of 25 years TCDJ-ID on October 3,

2014.

        5.    Notice of appeal was given on December 30, 2014.

        6.    The clerk's record was filed on January 30, 2015; the reporter's record

was filed on March 2, 2014 and a supplement was filed on March 24, 2015.

        7.    Appellant’s Brief was due on April 1, 2015.

        8.    Appellant requested an extension of time of 30 days due to the

supplement filed by the Court Reporter on March 24, 2015.

        9.    No extension to file the brief had been filed previously in this cause.
       10.    The Court granted Appellant’s request and extended the time to file

Appellant’s Brief until May 1, 2015.

       11.    Appellant filed the brief on May 1, 2015 using ProDoc efile and served

Chris Martin, Van Zandt County Criminal District Attorney, via email through ProDoc

efile at chrismartin@vanzandtcounty.org. (See Exhibit A and Exhibit B and C)

       12.    Appellant’s eservice provider indicates that the document was sent. (See

Exhibit A) The SMTP log shows that the message was successfully sent on 5/1/15 at

04:58:07.81. (See Exhibit B and C, please note that SMTP log is printed from a scroll

window and the log starts at 04:58:05.89 and ends at 04:58:07.83. Exhibits B and C both

show 04:58:07.16 to 04:58:07.67.)

       13.    Appellant’s attorney, Dean White, received a notice via email with

attachment from the Twelfth Court of Appeal indicating that Appellant’s brief had been

electronically filed. (See Exhibit D and E). Exhibit E indicates an email was sent to Chris

Martin, Van Zandt County Criminal District Attorney, giving the State notice that

Appellant’s brief had been filed in this cause.

       14.    On June 25, 2015, Richard Schmidt, Assistant Criminal District Attorney

for Van Zandt County, informed Appellant’s attorney Nolan White during docket in the

294th Judicial District Court that the State did not receive a copy of Appellant’s brief. Mr

Schmidt sent Nolan White an email on June 25, 2015 requesting a copy. Nolan White

was not in his office when Mr. Schmidt sent the email. Nolan White opened the email on

June 26, 2015 and provided the State with an eservice copy, a regular emailed copy

and also hand delivered a copy.

       WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

denies the State’s Motion for Leave to Extend Time to File Brief on its face or grant a

hearing on the State's motion so that Appellant can respond through oral argument.
                                     Respectfully submitted,

                                     Dean White,
                                     Attorney at Law
                                     690 West Dallas
                                     P.O. Box 155
                                     Canton, Texas 75103
                                     Tel: (903) 567-4155
                                     Fax: (903) 567-4964




                                     By: /s/ Dean White
                                        Dean White
                                        State Bar No. 21299500
                                        Attorney for JOHN CALVIN MARSHALL




                           CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing

document was served on the District Attorney's Office, Van Zandt County, 400 S.

Buffalo, Canton, Texas 75103, by electronic service through the Electronic Filing

Manager.



                                      /s/ Dean White
                                     Dean White
