                                                                                              ACCEPTED
                                                                                          03-15-00153-CR
                                                                                                  5296282
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                     5/15/2015 9:16:20 AM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                               NO. 03-15-00153-CR

THE STATE OF TEXAS                         §        IN THE THIRD FILED IN
                                                             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
v.                                         §        DISTRICT 5/15/2015
                                                              COURT9:16:20
                                                                         OF AM
                                                               JEFFREY D. KYLE
FRANCES ANITA ROBINSON                     §        APPEALS OF TEXAS Clerk


     STATE’S SECOND MOTION TO EXTEND TIME TO FILE BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes the State of Texas, Appellant in the above styled and numbered

cause, and moves for an extension of time of 30 days from reinstatement of the

instant case in the Court of Appeals (after a potential remand) or from the trial

court’s filing of any amended findings to file Appellee’s brief, and for good cause

would show the following:

                                          I.

      Appellee was indicted by a grand jury on June 5, 2013 for the charge of

Intoxication Manslaughter in CR2013-267. After Appellee’s motion to suppress

evidence was granted by the trial court on February 18, 2015, the State timely

appealed pursuant to article 44.01 of the Code of Criminal Procedure, and a stay

was granted by the Court of Appeals on March 20, 2015. The State timely filed its

request for findings of fact and conclusions of law with the trial court on March 10,

2015. See Tex. R. Civ. P. 296. Out of an abundance of caution, the State timely

filed its notice of past due findings of fact and conclusions of law on April 9, 2015,


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along with the State’s proposed findings for the trial court. See Tex. R. Civ. P. 297.

The State’s brief is currently due on May 14, 2015.


                                         II.

      Assistant District Attorney Daniel Palmitier is handling the appeal for the

State in this case. Yesterday, May 14, 2015, the State filed a verified motion to

abate and remand the cause to the trial court, because the trial court’s findings –

entered after it was deprived of jurisdiction – are void, and because the State is

entitled to have such findings for the appeal. Further, the State had no notice or

actual knowledge of the entry of said findings until May 6, 2015 – more than ten

days after they were filed. See Tex. R. Civ. P. 297, 298. The State will request

additional findings in the event of a remand. Mr. Palmitier has already performed

much of the necessary research, but he has not yet been able to complete the

State’s brief. The State’s Verified Motion to Abate and Remand is currently

pending in this Court; in the event of a remand, the State respectfully requests an

extension of 30 days from reinstatement in the Court of Appeals – or 30 days from

the filing of any amended findings – to file its brief. This is the second extension

sought by Appellee.




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                                       III.

      WHEREFORE, PREMISES CONSIDERED, the State’s counsel

respectfully prays for an extension of 30 days after reinstatement in the Court of

Appeals or the entry of amended findings, so that Appellant’s brief will fully,

adequately and accurately present its case to the Honorable Court of Appeals. This

extension is not requested for purposes of delay but so that justice may be done.



                                     Respectfully submitted,

                                     /s/ Joshua D. Presley
                                     Joshua D. Presley SBN: 24088254
                                     preslj@co.comal.tx.us
                                     Comal Criminal District Attorney’s Office
                                     150 N. Seguin Avenue, Suite 307
                                     New Braunfels, Texas 78130
                                     Ph: (830) 221-1300 / Fax: (830) 608-2008




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                         CERTIFICATE OF SERVICE

       I, Joshua D. Presley, Assistant District Attorney for Appellant, the State of
Texas, hereby certify that a true and correct copy of the above and foregoing
State’s Second Motion to Extend Time to File Brief was sent to
Defendant/Appellee FRANCES ANITA ROBINSON’s attorney of record in this
matter:

      Mr. Charles Sullivan
      csullivan@lawcsullivan.com
      308 Campbell Dr.
      Canyon Lake, TX 78133
      Fax: 210-579-6448
      Attorney for Appellee on Appeal

By electronic service to the above-listed email address through efile.txcourts.gov
on this the 15th day of May, 2015.

                                             /s/ Joshua D. Presley
                                              Joshua D. Presley




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