                                                                                            AP-77,041
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 5/24/2016 3:37:04 PM
                                                                       Accepted 5/24/2016 3:47:40 PM
    IN THE COURT OF CRIMINAL APPEALS OF TEXAS                       AT AUSTIN ABEL ACOSTA      CLERK



BRIAN SUNIGA,                 §
                                                                             May 24, 2016
Appellant                     §
                              §
v.                            §
                              §                      No. AP-77,041
THE STATE OF TEXAS,           §
Appellee                      §
                              §
_____________________________ §



   UNOPPOSED MOTION TO EXTEND TIME TO FILE REPLY BRIEF
          AND TO RESET DATE OF ORAL ARGUMENT

                   ** EXPEDITED RULING REQUESTED **1

      Comes now, Brian Suniga, Appellant, by and through his appointed counsel

and files this unopposed motion to extend the time for filing of his reply brief until

June 30, 2016, and to reset the date currently scheduled for oral argument, in

support whereof Appellant states the following:




      1
       TEX. R. APP. P. 10.3 (a)(1) states that “A court should not hear or determine
a motion until 10 days after the motion was filed,” unless the motion is one
requesting an extension of time in which to file a brief, or is unopposed. Jeffrey S.
Ford, Esq., Assistant Criminal District Attorney for Lubbock County, has informed
undersigned counsel that the State of Texas has no objection either to an extension
of time for the filing of a reply brief, or to the postponement of oral argument.

                                          1
                                           I.

      Appellant was convicted of capital murder and sentenced to death in the

140th Judicial District Court, Lubbock County, Texas, the Honorable Jim B.

Darnell presiding, State of Texas v. Brian Suniga, Case No. 2012-434,109. Direct

appeal is automatic in this case, pursuant to TEX. CODE CRIM. PROC. Art.

37.071(h).

                                          II.

      Appellant’s Opening Brief was filed on February 22, 2016, contained

seventeen different points of error and was 195 pages in length. The State’s Brief

was filed yesterday, May 23, 2016, and runs to 146 pages.

                                          III.

      Previously, the State of Texas had sought and obtained an extension of time

for the filing of its brief to June 21, 2016. The State then decided to file a month

earlier than anticipated. Having become aware that the State would be filing early,

undersigned counsel began drafting a motion requesting this Court to allow

sufficient time in which to prepare and file a reply brief, so as to avoid the case

being decided without the benefit of a reply brief, as is possible under TEX. R. APP.

P. 38.3 (providing that “[t]he appellant may file a reply brief addressing any matter

in the appellee's brief. However, the appellate court may consider and decide the


                                           2
case before a reply brief is filed.”

                                        IV.

      Under TEX. R. APP. P. 38.6 (c), “A reply brief, if any, must be filed within

20 days after the date the appellee's brief was filed.” Mr. Suniga’s reply brief as

of now would be due within twenty days of the filing of the State’s brief, namely

on June 13, 2016. However, in light of the number of issues involved and the

length of the State’s brief, Mr. Suiga’s draft motion requested an extension of time

to June 30, 2016 for the filing of the Reply.2 That extension of time was not

opposed by the State, which had indicated to the undersigned that it was amenable

to an extension of six weeks.

                                         V.

      However, even before the State’s brief was formally filed on the court’s

website, counsel received notice that oral argument has been scheduled for

Wednesday, June 15, 2016, which is only two days after the current deadline for

the reply brief.


      2
        Additionally, Monday, May 30, 2016 is the Memorial Day holiday, and
undersigned counsel has a pre-paid personal out-of-state trip booked from June 10-
13, 2016. No previous extensions of time have been sought for the purpose of
filing a reply brief. With regard to the setting of a new date for oral argument,
counsel for the State of Texas has informed the undersigned that he has a pre-
planned vacation from July 1-July 6, 2016, and would be grateful if those dates
could be avoided.
                                          3
                                           VI.

      Individuals who have been convicted of capital crimes are constitutionally

entitled to the effective assistance of appellate counsel. See, e.g., Evitts v. Lucey,

469 U.S. 387, 396 (1985)(holding criminal appellant is entitled to effective

assistance of counsel); Ward v. State, 740 S.W.2d 794 (Tex. Crim. App.

1987)(same).3 Filing a reply brief on Mr. Suniga’s behalf in order to refute the

State’s arguments is essential to providing effective assistance of appellate counsel.



                                          VII.

      Although the right to an appeal is one created by state law, Evitts, 469 U.S.

at 393, if a State has created appellate courts as "an integral part of the . . . system

for finally adjudicating the guilt or innocence of a defendant," Griffin v. Illinois,

351 U.S. 12, 18 (1956) the procedures used in deciding appeals must comport with

the demands of the due process clause of the federal Constitution. See also Hicks

v. Oklahoma, 447 U.S. 343, 346 (1980)(arbitrary denial of state procedural right

denies due process of law).



      3
        See also State Bar of Texas: Guidelines and Standards for Texas Capital
Counsel, Texas Bar Journal 966-982 (November 2006), see Guideline 12.2.A.9:
“Counsel should be prepared to prepare and file a Reply Brief in opposition to any
brief filed by the District Attorney’s Office within a timely manner.”
                                            4
                                       VIII.

      The Due Process Clause requires, at a minimum, that “deprivation of life,

liberty or property by adjudication be preceded by notice and opportunity for

hearing appropriate to the nature of the case.” Armstrong v. Manzo, 380 U.S. 545,

550 (1965); see also Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (“The

fundamental requisite of due process of law is the opportunity to be heard”

(quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). In the context presented

here—a direct appeal in a death case—due process requires, indeed,

“presupposes”—“the opportunity to be heard, to argue and present evidence.”

Townsend v. Sain, 372 U.S. 293, 312 (1963). See also Ford v. Wainwright, 477

U.S. 399, 413 (1986) quoting Grannis, 234 U.S. at 394; Panetti v. Quarterman,

551 U.S. 930, 949 (2007)(explaining that protection afforded by procedural due

process includes a fair hearing in accord with fundamental fairness).

                                        IX.

      Without the opportunity to receive a thoroughly-prepared reply brief from

Appellant, the Court will be deprived of arguments or authorities that should be

considered by the Court, and by the parties, in preparing for oral argument.4


      4
       Undersigned counsel notes that the operating procedures of the Texas
Supreme Court specifically provide a period of thirty days after the “response brief
on the merits is filed,” before its clerks prepare a “study memo” concerning the
                                         5
Without an adequate opportunity to respond in writing to an appellee’s arguments,

the appellant may be forced to provide the Court with multiple supplementary

authorities or case references at the oral argument itself. Moreover, having the

reply brief available to the Court well before oral argument will assist the Court in

narrowing and focusing the issues, and in anticipating the points of contention

likely to arise.

                                          X.

       Without having been able to research the issue fully in the time available,

undersigned counsel notes that requests to extend the time for filing of a reply brief

have been granted in other capital appeals, see, e.g., State v. James Freeman, No.

AP-76,052 (56 days between filing of state’s brief and filing of reply); State v.

Tedderick Batiste, No. AP-76,600 (41 days between filing of state’s brief and filing

of reply). In other cases, both requests for extensions of time to reply and requests

to reset oral argument have been granted: State v. Armando Leza, No. AP-76,157

(76 days between filing of state’s brief and filing of reply; oral argument reset);

State v. Areli Escobar, No. AP-76,571 (85 days between filing of state’s brief and



potential disposition of the case. See Blake Hawthorne, Clerk of Texas Supreme
Court, Supreme Court of Texas: Internal Operating Procedures, May 8, 2015 at
VI.B.6 www.txcourts.gov/media/1047308/internal-operation-procedures-2015-
appendix.pdf (last accessed May 24, 2016).
                                           6
filing of reply; oral argument reset). Therefore, precedent exists for granting the

relief that Mr. Suniga requests and that the State does not oppose.

                                          XI.

       Mr. Suniga wishes his reply brief to be given full consideration by this Court

prior to oral argument, and before it decides any issue in his case. He therefore

respectfully requests that this Honorable Court (1) grant him until June 30, 2016, to

file his reply brief, and (2) reset the date of oral argument until two or more weeks

after the reply brief is filed.


                           CONCLUSION AND PRAYER.

          WHEREFORE, Appellant Brian Suniga, prays that this Honorable Court

will permit him until June 30, 2016, to file his reply, and for the Court to reset the

date of oral argument in the case until two or more weeks after the filing of his

reply.5




       The undersigned will, in any event, attend oral argument whenever it is
       5

held, and in accordance with the notice of oral argument filed yesterday, will notify
the Court within ten days as to which points of error will be argued.
                                           7
   Respectfully submitted,




__________________________
      HILARY SHEARD
  Law Office of Hilary Sheard
 7421 Burnet Road # 300-512
      Austin, Texas 78757
     Phone (512) 524 1371
      Fax (512) 646 7067
  HilarySheard@Hotmail.com

   Attorney for Appellant .




              8
                         CERTIFICATE OF SERVICE

I certify that on May 24, 2016, a copy of the foregoing pleading was served
electronically via www.efileTexas.gov on:

      Jeffrey S. Ford, Esq.
      Chief - Appellate Division
      Lubbock County District Attorney’s Office
      Lubbock County Courthouse
      904 Broadway - 2nd Floor
      P.O. Box 10536
      Lubbock, Texas 79408.
      JFord@LubbockCDA.com




                               ____________________________
                                    Hilary Sheard.




                                        9
