                                                                                       ACCEPTED
                                                                                   03-15-00270-CV
                                                                                           5229685
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             5/11/2015 12:44:02 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                        NO. 03-15-00270-CV
__________________________________________________________________
                                                             FILED IN
                 IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
                          AUSTIN, TEXAS
                                                  5/11/2015 12:44:02 PM
__________________________________________________________________
                                                     JEFFREY D. KYLE
                                                               Clerk
                        SUZANNA ECKCHUM
                                                               Appellant,
                                  v.

      THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM
                                                         Appellee.
__________________________________________________________________
       ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2
                        OF COMAL COUNTY
                      CAUSE NO. C2014-1690C
__________________________________________________________________

    APPELLANT’S UNOPPOSED MOTION TO CONSOLIDATE OR,
                  ALTERNATIVELY, TO DISMISS
__________________________________________________________________
                                Mysha Lubke
                                BAKER BOTTS L.L.P.
                                State Bar No. 24083423
                                98 San Jacinto Blvd., Suite 1500
                                Austin, TX 78701
                                (512) 322-2500
                                (512) 322-2501 (fax)
                                mysha.lubke@bakerbotts.com

                                              ATTORNEY FOR APPELLANT




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TO THE HONORABLE THIRD COURT OF APPEALS:

                    This appeal, Cause No. 03-15-00270-CV, is a duplicate of Cause No.

03-15-00107-CV, currently abated on appeal in this Court. Accordingly, the Court

should consolidate these two appeals under Cause No. 03-15-00107-CV or,

alternatively, dismiss this Cause No. 03-15-00270-CV.


                    On February 17, 2015, Appellant Suzanna Eckchum’s notice of

appeal from the trial court’s “Stalking Protective Order” was filed in this Court

under cause number 03-15-00107. On March 13, 2015, this Court abated and

remanded that appeal to the trial court for a hearing on Appellant’s affidavit of

indigence. Hearings on Appellant’s affidavit of indigence as well as Appellant’s

motion for new trial filed on February 19, 2015 were set for April 2, 2015. The

hearing on Appellant’s affidavit of indigence was waived, but the trial court heard

argument on Appellant’s motion for new trial on April 2, 2015.


                    After the hearing, the trial court signed an “Amended Stalking

Protective Order” on April 7, 2015. Out of an abundance of caution,1 Appellant

filed a second notice of appeal of this April 7, 2015 “Amended Stalking Protective

Order” on May 5, 2015 to include the trial court’s amended order within the abated

1
  See Matter of R.A., 14-11-00570-CV, 2015 WL 1956882, at *8 (Tex. App.—Houston [14th
Dist.] Apr. 30, 2015, no. pet. h.) (concluding the appellate court lacked appellate jurisdiction
under Tex. R. App. P. 27.3 of a second order in the same matter and based on the same facts as
the first order for which a notice of appeal was filed because the trial court did not address, in the
second order, whether the first order was being modified, vacated, or replaced).
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appeal. This notice of appeal was assigned cause number 03-15-00270-CV. As a

result, there are now two appeals of substantially similar stalking protective orders

signed by the same judge, under the same trial court cause number, involving the

exact same parties and issues, and for which the same records and documents have

been filed or are due to be filed in this Court.2


                    This Court has not yet reinstated the first appeal of the trial court’s

“Stalking Protective Order.” In the interest of justice and judicial efficiency, and

to promote the expedient and economical resolution of these appeals, this Court

should reinstate the first appeal and consolidate both appeals under the first cause

number 03-15-00107. See Berger v. Flores, 03-10-00874-CV, 2012 WL 4477405,

at *1 (Tex. App.—Austin Sept. 28, 2012, no pet.) (consolidating two appeals from

the same parties and trial court cause numbers); Livingston v. Arrington, 03-11-

00197-CV, 2011 WL 2297705, at *1 (Tex. App.—Austin June 10, 2011, no pet.)

(consolidating two appeals from a trial court’s oral ruling and later corresponding

written order). Alternatively, this appeal under cause number 03-15-00270 should

be dismissed, and under Texas Rule of Appellate Procedure 27.3, this Court should

treat the first appeal as from the subsequent, amended order and treat actions


2
  The reporter’s record in the first cause number 03-15-00107-CV has been requested before and
after the scheduled hearing on Appellant’s affidavit of indigence, but has not yet been filed.
Thus, no reporter’s record has been filed in either appeal. The first cause number includes a
clerk’s record, and a supplemental clerk’s record has been requested to be filed in the first cause
number, as well.
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relating to the first appeal, as relating to the appeal of the subsequent, amended

order.


                    This Motion is filed in good faith and in the reasonable belief that it

should be granted and that no prejudice will result to any party if the Motion is

granted.


                                             Respectfully submitted,

                                             By: /s/ Mysha Lubke
                                                Mysha Lubke
                                                State Bar No. 24083423
                                                mysha.lubke@bakerbotts.com
                                                BAKER BOTTS L.L.P.
                                                98 San Jacinto Blvd., Suite 1500
                                                Austin, TX 78701
                                                Telephone: (512) 322-2500
                                                Facsimile: (512) 322-2501
                                                    ATTORNEY FOR APPELLANT
                                                    SUZANNA ECKCHUM




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                        CERTIFICATE OF CONFERENCE

      I hereby certify that counsel for Appellant Suzanna Eckchum conferred with
Josh Presley, counsel for the State of Texas for the Protection of Hal Ketchum on
May 11, 2015 and determined that the State of Texas does not oppose this request.


                                       / s / Mysha Lubke
                                       Mysha Lubke


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
by electronic filing and fax on May 11, 2015:

         Counsel for the State of Texas for the Protection of Hal Ketchum:
         The Honorable Jennifer A. Tharp
         Comal County Criminal District Attorney
         150 North Seguin, Suite 370
         New Braunfels, Texas 78130
         preslj@co.comal.tx.us
         fax: 830-608-2008

                                       / s / Mysha Lubke
                                       Mysha Lubke




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