                                                                                               AP-77,041
                                                                      COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                    Transmitted 10/16/2015 1:45:45 PM
                                                                      Accepted 10/16/2015 2:04:44 PM
    IN THE COURT OF CRIMINAL APPEALS OF TEXAS                       AT AUSTIN ABEL ACOSTA      CLERK



BRIAN SUNIGA,                 §
Appellant                     §                                             October 16, 2015

                              §
v.                            §
                              §                    No. AP-77,041
THE STATE OF TEXAS,           §
Appellee                      §
                              §
_____________________________ §


      SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME
         IN WHICH TO FILE APPELLANT’S OPENING BRIEF

      Comes now, Brian Suniga, Appellant, by and through counsel and files this

Second Unopposed Motion for Extension of Time in which to file Appellant’s

Opening Brief, in support whereof Appellant states the following:

                                         I.

      Appellant was convicted of capital murder and sentenced to death on May

20, 2014, in the 140th Judicial District Court, Lubbock County, Texas, the

Honorable Jim B. Darnell presiding, Case No. 2012-434,109.

                                        II.

      Appellant filed a designation of the record on June 27, 2014. A Clerk’s

Record was initially filed on September 19, 2014, and a Reporter’s Record was

filed on April, 1, 2015. Upon numerous omissions in both the Clerk’s Record and
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the Reporter’s Record being discovered by undersigned counsel, a “Motion to

Abate Appeal for the Trial Court to Enter Findings of Fact and Conclusions of Law

and for Completion of Record” was filed on April 29, 2015. That Motion also

requested thirty days after completion of the record in which to file Appellant’s

Opening Brief, in accordance with TEX. R. APP. P. 38.6. Appellant’s case was

duly abated and remanded to the trial court on May 20, 2015. On June 22, 2015,

additional volumes supplementing the Reporter’s Record were filed. On the same

date, a further volume of the Clerk’s Record was filed, and a sealed volume of

Clerk’s Record was also filed. As instructed in this Court’s Order of May 20,

2015, abating the case to the trial court, Appellant’s Opening Brief then became

due on July 22, 2015.

                                         III.

      Applicant subsequently filed a Motion for Extension of time on July 15,

2015. He requested an extension of 120 days, which would have resulted in a due

date of November 19, 2015. Some of the grounds on which the extension of time

was sought were the sheer length of the record, which now comprises a Reporter’s

Record of 44 volumes and a Clerk’s Record of 5 volumes, and undersigned

counsel’s scheduled attendance at the National Federal Habeas Corpus Seminar in

Charlotte, NC, from August 13-16, 2015 and a pre-booked, pre-paid trip, to visit


                                          2
overseas family members. However, the primary need for the extension of time

was created by counsel’s representation of another death-sentenced inmate,

Christopher Chubasco Wilkins, in whose case an execution date of Wednesday

October 28, 2015, had recently been set.1 This Court granted an extension of time

for the filing of Mr. Suniga’s opening brief, but to the current due date of October

20, 2015, rather than to the requested date of November 19, 2015.

                                           IV.

          In addition to the setting of an execution date in Mr. Wilkins’ case, counsel

was also notified in July 2015 by the Tarrant County Criminal District Attorney’s

Office that Mr. Wilkins’ case was one of many that have recently come to light in

which there were discrepancies in the statistical analysis of DNA results, caused by

flaws in the “population data” tables prepared by the FBI. See, e.g,, Website of

the Texas Forensic Science Commission, www.fsc.texas.gov/blog/2015-08-

21/notification-re-fbi-allele-frequency-corrections-and-dna-mixture-interpretation

(last accessed October 15, 2015); Terri Langford, Lawyers, Scientists Try to

Unravel Thorny New DNA Standard, The Texas Tribune, Sept. 18 2015.



      1
       See Wilkins v. State, No. AP-75,878, 2010 Tex. Crim. App. LEXIS 622 * 1-
3 (Tex. Crim. App. 2010)(not designated for publication); Ex Parte Wilkins, No.
WR-75,229-01, 2011 Tex. Crim. App. Unpub. 70 (Tex. Crim. App. February 2,
2011)(not designated for publication).
                                            3
                                        V.

      Undersigned counsel thereafter spent the vast majority of August and

September working on the Wilkins case, including:

•     Unsuccessfully seeking appointment in the 297th District Court of Tarrant
      County in order to file a successor application pursuant to T EX. CODE CRIM.
      PROC. Art. 11.071 § 5;

•     Moving for a stay of execution and for funding in the United States District
      Court with which to file a successor application pursuant to TEX. CODE
      CRIM. PROC. Art. 11.071 § 5, and possible further federal proceedings, as
      well as a clemency application, see Wilkins v. Stephens, No. 12-CV-270-A
      (N.D. Tex.), ECF Docket Nos. 76-91;

•     In the absence of any court-provided funding, locating a DNA expert willing
      to provide pro bono assistance in reviewing the DNA analyses in the case
      and to provide a declaration supporting a further motion for appointment of
      counsel and expert funding in the state court, and then working with that
      expert on the preparation of that preliminary declaration;

•     In the absence of any court-provided funding, locating a toolmark expert
      willing to provide pro bono assistance in reviewing the State’s toolmark
      evidence introduced at Mr. Wilkins’ trial for suspected flaws, and to provide
      a declaration supporting a further motion for appointment of counsel and
      expert funding in the state court, and then working with that expert on the
      preparation of that preliminary declaration;

•     Filing the further motion for appointment, and a motion for expert funding
      in the 297th District Court of Tarrant County seeking funds with which to
      explore the DNA issue and to enable litigation of identified problems in the
      State’s toolmark evidence from Mr. Wilkins’ trial;

•     Investigation of Mr. Wilkins’ case by undersigned counsel, in the absence of
      any funding for an investigator or mitigation specialist;

•     Work on preparation of a successor habeas corpus application pursuant to

                                         4
      TEX. CODE CRIM. PROC. Art. 11.071 § 5 and preparation of a clemency
      application.

                                          VI.

      On September 21, 2015, the State moved to withdraw Mr. Wilkins’

execution date, in order to allow the parties to more fully investigate the DNA

issues. That same day, the 297th Judicial District Court accordingly withdrew the

execution date. Since that time, undersigned counsel has worked diligently on Mr.

Suniga’s case, in which counsel has already identified at least eleven points of

error specific to this case, all of which are requiring legal research and extensive

briefing to present the necessary arguments, along with eight points of error

concerning challenges to the death penalty statute and sentencing scheme. It

seems reasonable to predict that some further issues will arise as counsel’s

consideration of the record continues.

                                         VII.

      In addition to other professional commitments, undersigned counsel now has

a filing deadline in the United States Court of Appeal for the Fifth Circuit in Mr.

Wilkins’ case, Wilkins v. Stephens, No. 15-70033, of November 10, 2015.

                                         VIII.

      A criminal appellant, just like a criminal defendant at trial, is entitled to the



                                           5
effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Ward v.

State, 740 S.W.2d 794 (Tex. Crim. App. 1987). While substantial progress has

been made on Mr. Suniga’s opening brief, too much work on it remains to be done

for counsel to be able to complete and file the brief to a sufficient standard by the

current due date of October 20, 2015. Undersigned counsel, therefore respectfully

requests an additional 30 days in order to do so, resulting in a revised due date of

November 19, 2015.

                                         IX.

      Undersigned counsel spoke with Jeffrey Ford, Assistant Criminal District

Attorney for Lubbock County, who is appellate counsel for the State of Texas in

this matter, by telephone on October 15, 2015. Mr. Ford stated that he has no

objection to Appellant’s request for this extension of time.

                         CONCLUSION AND PRAYER.

      For the above stated reasons, counsel respectfully requests an extension of

30 days to Thursday, November 19, 2015 for the completion of Appellant’s

Opening Brief.




                                           6
                             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 .



                         CERTIFICATE OF SERVICE

I certify that on October 16, 2015, 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.

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