                                                                                    PD-1016-15
                      PD-1016-15                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                  Transmitted 8/6/2015 10:32:15 PM
                                                                    Accepted 8/11/2015 1:16:53 PM
                                                                                    ABEL ACOSTA
                                                                                            CLERK

               COURT OF CRIMINAL APPEALS

                                PD-          -15

                  Ex Parte Julie Ann VonTungeln
                           On Discretionary Review from
                               No.10-14-00329-CR
                           Tenth Court of Appeals, Waco
                        On Appeal From No. F43117-A
                      18th District Court, Johnson County

               Motion to Extend Time to File
              Petition for Discretionary Review
Kristin R. Brown
18208 Preston Road
Dallas, Texas 75252
Phone: 214-446-3909
Fax: 214-481-4868
kbrown@idefenddfw.com
Texas Bar No. 24081458

Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@_mowlalaw.com
Texas Bar No. 24048680

Attorneys for Appellant




                                                            August 11, 2015
To the Honorable Justices of the Court of Criminal Appeals:

      Appellant Julie VonTungeln moves for an extension of time of 30 days to

file a petition for discretionary review:

          l. On August 6, 2015, in Ex Parle Julie Von Tungeln, 10-14-00329-CR,

2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (memorandum

opinion) the Court of Appeals affirmed the 18th District Court's denial of

Appellant's Application for Writ of Habeas Corpus under 11.072. See attached.

          2. The petition for discretionary review is due September 5, 2015.

          3. For good cause, Appellant asks for an extension of 30 days, until

October S, 2015, to file the petition for discretionary review.

          4. No previous extension to file the petition for discretionary review has

been filed.

          5. Appellant relies on the following facts as good cause for the requested

extension: undersigned counsel Kristin R. Brown just completed an Appellant's

Brief in Ryder v. State, 07-15-00003-CR, Seventh Court of Appeals.

          6. Further, Ms. Brown has the following briefs, petitions for

discretionary review, or other pleadings due soon:

              • Appellant's Brief in Jessica Boyett v. State of Texas, 6th Court of
                Appeals, due September 8, 2015.



                                             2
            • Appellant's Brief in James Kirvin v. State of Texas, 5th Court of
              Appeals, due August 16, 2015

            • Appellant's Brief in Cathy Lea Bates v. State of Texas, 5th Court
              of Appeals, due August 29, 2015.

            • Appellant's Brief in David Fothergill v. State of Texas, 5th Court
              of Appeals, due August 28, 2015.

            • Appellant's Brief in David Wayne Cahill v. State of Texas, 5th
              Court of Appeals, due September 13, 2015.

            • Ex Parte Michael Ca"oll, 3-15-cv-        , a federal writ under 28
              USC 2255, Northern District of Texas, due on October 29, 2015.

         7. In addition, Ms. Brown is preparing for oral arguments in Robert

James Gray v. State of Texas (murder) and Jeffery Lynn Aday v. State of Texas,

both in front of the Fifth District Court of Appeals on September 23, 2015, and

October 14, 2015, respectively.

         8. Finally, Ms. Brown will also be out-of-state at continuing legal

education in Wyoming from August 21, 2015 to September 3, 2015.

         9. Mowla has the following briefs, petitions for discretionary review, or

other pleadings due soon:

         • Collins v. State, 08-15-00103 (murder case), appellant's brief due on
           August 10, 2015 in the Eighth Court of Appeals

         • Jackson v. State, 05-15-00414-CR, appellant's brief due on August
           10, 2015 in the Fifth Court of Appeals




                                           3
         • Hernandez v. State, I 0-14-00302-CR, reply brief due on August I 0,
           2015 in the Tenth Court of Appeals

         • Zimmerman v. Harris, 15-50424, appellant's brief due on August 20,
           2015 in the Fifth Circuit

         • Burks v. Price, 15-40799, appellant's brief due on August 25, 2015 in
           the Fifth Circuit

          • Munoz v. State, 05-15-00158-CR, appellant's brief due on September
            12, 2015 in the Fifth Court of Appeals

          IO.In addition, Mow la continues work on a federal habeas corpus death

penalty case, Jones v. Stephens, 4:05-CV-638-Y.

          I I .And, Mowla was recently appointed on a federal death penalty habeas

case in Green v. Director, 3: I 5-cv-02197-M-BH.

          12.Further, Mowla also continues work on a state habeas corpus death

penalty case, Ex parte Thomas, F86-85539, in the 194•h Judicial District Court.

This case is in its investigation stage and requires considerable amount of time.

          13.Finally, Mowla continues work on several habeas cases involving the

underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).

          14.This Motion is not filed for purposes of delay, but so that justice may

be served.




                                             4
                                       Prayer

      Appellant prays that this motion for extension of time to file the PDR be

granted.


                              Respectfully submitted,

                              The Law Office of Kristin R. Brown, PLLC
                              18208 Preston Road
                              Dallas, Texas 75252
                              Phone:214-446-3909
                              Fax:214-481-4868
                              kbrown@idefenddfw.com
                              Texas Bar No. 24081458
                              Attorney for Appellant

                              /s/ Kristin R. Brown
                              By: Kristm R. Brown


                              Michael Mowla
                              445 E. FM 1382 No. 3-718
                              Cedar Hill, Texas 75104
                              Phone:972-795-2401
                              Fax:972-692-6636
                              michael@mowlalaw.com
                              Texas Bar No. 24048680
                              Attorney for Appellant

                              /s/ Michael Mowla
                              By: Michael Mowla




                                          5
                          Certificate of Service

       I certify that on August 6, 2015, a true and correct copy of this document
was served on David Vernon of the Johnson County District Attorney's Office,
Appellate Division, by email to davidv@johnsoncountv.tx.org. and on Lisa
McMinn,         the     State   Prosecuting      Attorney,     by     email    to
Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting
Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc.
9.5 (2015) and 68.11 (2015).


                               /s/ Kristin R. Brown
                               By: Kristm R. Brown




                                           6
No Shepard's Signal™
As of: August 6, 2015 I 0:42 PM EDT


                                                  Ex oarte Tungeln
                                         Court of Appeals of Texas, Tenth District
                                               August 6, 2015, Opinion Filed
                                                    No. 10-14-00329-CR

Reporter
2015 Tex. App. LEXIS 8247

EX PARTE JULIE ANN VON TUNGELN                                   Registration
                                                                           of Informal Marriage, seeTEX. FAM.
                                                                 CODEANN. §§ 2.../01, 2.-102 (West 2006), but they had it
Notice: Decision text below is the first available text from     immediately annulled when they learned that Alsobrook's
the court: it has not been editorially reviewed by LexisNexis.   divorce was not final. Alsobrook, like Appellant, was also
Publisher's editorial review, including Headnotes, Case          on felony community supervision.Ion June 19, 2013, [*2]
Summary, Shepard's analysis or any amendments will be            the State filed its First Amended Motion to Proceed with an
added in accordance with LexisNexis editorial guidelines.        Adjudication of Guilt; it alleged in part that Appellant
                                                                 violated
Core Terms                                                       Condition 3, "to-wit: on or about May 24, 2013 the
                                                                 defendant married Steven Alsobrook, who has an extensive
community supervision, probation, pet, trial court, parte,       criminal history and is currently on felony probation for
Probationers, terms and conditions, conditions, rights           Family

                                                                 Violence in Dallas County, Texas."2After Appellant agreed
Opinion
                                                                 to two weeks in jail as a condition of probation for the
                                                                 alleged violations, the State withdrew its motion to
 [*l] From the 18th District Court Johnson County, Texas
                                                                 adjudicate.
Trial Court No. F43117-A
                                                                 On August 27, 2013, and again without the trial court's
MEMORANDUM OPINION
                                                                 approval,3Appellant and Alsobrook filed a second Formal
In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to       Declaration and Registration of Informal Marriage. After
                                                                 filing several unsuccessful motions to modify her community
two counts of sexual assault of a child under a plea bargain
                                                                 supervision terms and conditions so that she could associate
that included the following terms: ten years' deferred
                                                                 with Alsobrook, Appellant filed the instant habeas application
adjudication community supervision, 180 days in county
                                                                 and raised constitutional complaints about Condition 3' s
jail with work release, a $2,000 fine, sex-offender terms and
                                                                 application to her spouse. SeeTEX. CODECRIM. PROC.
conditions, and standard community supervision terms and
                                                                 ANN. arr. 11.072. § 3<cl (West 2015). The trial
conditions. One of the standard terms and conditions of
community supervision that Appellant agreed to be subject
                                                                 1 Upon learning that Alsobrook had a criminal record,
to is Condition 3: "Avoid association with persons who have
                                                                 Appellant would have been in violation of Condition
criminal records and those of disreputable or harmful
character."                                                      3 by associating with him. See Gill v. State.593 S. W2d 697.
                                                                 698 (fex. Crim. App. /Pa11e/ Op. I 1980).
Appellant initialed and signed the felony community
supervision order, along with signing the "Order of Deferred     2The State also alleged that Appellant had associated with
Adjudication: Community Supervision" and the plea                another man with a criminal background over a two-year
                                                                 period. Other [*3] alleged violations were: drinking alcohol
agreement.                                                       on two occasions; travelling more than

In May of2013, Appellant (without the trial court's approval)    I 00 miles without permission;          and   twice   having
and Steven Alsobrook filed a Formal Declaration and              unsupervised contact with children.
                                                                                                                             Page 2 of 3
                                                      2015 Tex. App. LEXIS 8247, *3

3 Appellant filed a motion to modify after the filing of the         (3) it forbids or requires conduct that is not reasonably
second Declaration.                                                  related to the future criminality of the defendant or does not
                                                                     serve the statutory ends of probation.
Ex parte Von Tungeln Page 2
                                                                     Lacv '" State. 875 S. W2d 3. 5 <Tex. App.-Tvler 1994. pet.
court entered an order finding that Appellant was manifestly         ref"d) (citationsomitted); accord Marcum I'. State. 983
not entitled to relief and denied the habeas application as          S. \V.2d 762. 768 <Tex. App.-Housto11 fl-Ith Dist. I 1998. per.
frivolous. This appeal followed.                                     ref'd ). A community supervision "condition is not necessarily
                                                                     invalid simply because it affects [the defendant's] ability to
Appellant asserts two issues: ( 1) the trial court abused its        exercise constitutionally protected rights." Lee 1·. State. 952
discretion and violated                                              S. W2d 894. 900 <Tex. A.pp.-Dallas 1997. 110 pet.) (en bane).
                                                                     A condition that is "reasonably related to the purposes of
Appellant's constitutional rights because Condition 3 is
                                                                     probation" is permissible. [*5] Id. ''Reasonably related"
unconstitutional as applied to Appellant because it violates
                                                                     hinges on three factors: "(l) the purposes sought to be
Appellant's rights to privacy, due process, and equal
                                                                     served by probation; (2) the extent to which constitutional
protection; and (2) the trial court violated Appellant's
                                                                     rights enjoyed by law-abiding citizens should be accorded
constitutional rights because Condition 3 is unconstitutional
                                                                     to probationers; and (3) the legitimate needs of law
as applied to Appellant because it violates Appellant's
                                                                     enforcement." Macias i: State.649 S. W2d 150. I 52 <Tex.
                                                                     App.-£/ Paso 1983. 110 pet.) (quoting United States 1: Tonn·.
First Amendment right of association. Because the habeas
                                                                     605 F.2d 144. 150 (5th Ch: 1979), abrogation on other
court determined that
                                                                     grounds recognized by United States v.Tex. Tech Unil'.. 171
Appellant's application was frivolous and that Appellant             F.3d 279. 287 (5th Cil: /999»;accord Lee. 952 S. \Y.2d
was manifestly not entitled to relief, we review de novo the         at900.
habeas court's order. Ex parte Skelto11.-13-I S. W'.Jd 709. 717
                                                                     Briselio   1·.   State. 293 S. W3d 644. 647--18 <Tt.·x. App.-San
<Tex. App.-Sa11 A111n11io 20J.I. oet. ref'd).
                                                                     Antonio 2009. no pet. J;see also Ex

An award of community supervision is not a right, but a
                                                                     parte Alakavi. 102 S. it'.3d 426. 432 <Tex. App.-Housto11
contractual privilege, and its conditions are terms of the
                                                                     !I-Ith Dist. I 2003. pet. ref"d).
contract entered into between [*4] the trial court and the
defendant. Speth v. State. 6 S. W3d 530. 534 <Tex. Crim.             A probationer has diminished constitutional rights, including
Ann. 1999 ). A trial court has broad discretion in determining       a diminished right
the conditions to be imposed. Id. m 533; see also Butler 1:
Stare. 189 S. W3d 299. 303 <Tex. Crim. App. 2006)."'The              to privacy. ill re D.L.C.. I 2-1 S. \Y.3d 35-1 3t55 fTt.>.t. A.rm.-Fnrr
judge may impose any reasonablecondition that is designed            \forth 2003. no pet.) (citing
to protect or restore the community, protect or restore the
victim, or punish, rehabilitate. or reform the defendant."           Griffi11 1·. Wisconsin. 483 U.S. 868. 875. 107 S.Ct. 3164.
 TEX. CODECRIM. PROC. ANN. art. 42. I 2. § ]](a) (West               3169. 97 L.Ed.2d 709 <1987)).
Supp. 2014). One of the statutory conditions that a trial
court may include is that the defendant shall: "Avoid                [R]ehabilitation is [not] the sole goal of probation. A second
persons or places of disreputable or harmful character."             primary goal of probation is protecting society. Knights, 534
Id.art. 42.12. § 1](a)(3). This condition is presumptively           U.S. at 119, 122 S.Ct. 587; see TEX. CODECRIM. PROC.
                                                                     ANN. art. 42.12 sec. IJ(a) (Vernon Supp. 2008) (stating
reasonable. SeeMitclzell '" State. 420 S. W3d 448. 450 <Tex.
App. -Houston I 14th Dist. I 20 I 4.   110   pet.).                  judge may impose any reasonable condition of probation
                                                                     designed to protect the community). Probationers are "more
Ex parte Von Tungeln Page 3                                          likely than the ordinary citizen to violate the law."
                                                                     Knights,534 U.S. at 120, 122 S.Ct. 587; Griffin,483
A condition of probation is invalid if it has all three of the
following characteristics:                                           Ex parte Von Tungeln Page 4

(I) it has no relationship to the crime;                             U.S. at 880, 107 S.Ct. 3164.... Probationers therefore "do
                                                                     not enjoy 'the absolute liberty to which every citizen is
(2) it relates to conduct that is not in itself criminal; and        entitled, but only ... conditional liberty properly dependent
                                                                                                                  Page 3 of 3
                                              2015 Tex. App. LEXIS 8247, *5

on observation of special [probation] restrictions.' "          we cannot say that the trial court erred or abused its
Griffin.483 U.S. ar 874. 107 S.Ct. 3164 (quoting Morrissev      discretion in denying Appellant's
l:Bmm: 408 U.S. 471. 480. 92 S.Ct. 2593. 33 L.Ed.2d 484
f 1972 n"Theserestrictions are meant to assure that the         habeas application. See id.at 432-33               (upholding
probation serves as a period of genuine rehabilitation and      community-supervision conditions that
that the community is not harmed by the probationer's being
                                                                restricted defendant's access to his son and also prevented
at large." [*6] Griffin. 483 U.S. at 875. 107 S.Ct. 3164.
                                                                defendant from living with
Townes \: State, 293 S. iV.3d 227. 231 <Tex. App.-Sa11
                                                                his wife as long as [*7] she was living with their son, against
Antonio 2009. 110 pet.).
                                                                defendant's constitutional
We agree with the State that the purpose of Condition 3 is
                                                                Ex parte Von Tungeln Page 5
to assist Appellant's
                                                                complaint pertaining to his right to association with his
rehabilitation and reformation by preventing her from           family); see also In re Pate, No. 12-
associating with persons with
                                                                11-00406-CV, 2012 WL 1142477 (Tex. App.-Tyler Mar. 30,
criminal records and disreputable or harmful character. As      2012, orig. proceeding) (mem.
quoted above, probationers
                                                                op.) (imprisoned husband did not establish constitutional
are more likely than the ordinary citizen to violate the law,   infirmity of wife's community-
and the State's goal of
                                                                supervision condition that prevents her from communicating
protecting society is furthered by preventing felons on         with him).
community supervision from
                                                                We overrule Appellant's two issues and affirm the trial
associating with each other. See id.                            court's order.

Appellant had the burden of proving facts entitling her to      REX D. DAVIS
the requested relief.
                                                                Justice
Alakayi. 102 S. lV.3d at 432. The record shows that Appellant
twice began relationships                                       Before Chief Justice Gray, Justice Davis, and Justice
                                                                Scoggins
with men with criminal records, that Appellant twice
                                                                (Chief Justice Gray dissents with a note)* Affirmed
"married" Alsobrook without court
                                                                Opinion delivered and filed August 6, 2015 Do not publish
approval (including once while a motion to adjudicate was
pending and after having                                        [CR25]

been arrested and released on bond), and that Appellant         *(Chief Justice Gray dissents from the opinion and judgment
allegedly violated other terms                                  of the Court. A separate opinion will not be issued.)

and conditions. Based on the record, we cannot say that         Ex parte Von Tungeln Page 6
Appellant met her burden, and
