                                                                                                   ACCEPTED
                                                                                               05-17-00257-CR
                                                                                     FIFTH COURT OF APPEALS
                                                                                              DALLAS, TEXAS
                                                                                              6/1/2018 5:08 PM
                                                                                                    LISA MATZ
                                                                                                        CLERK

                           In the Court of Appeals for the
                           Fifth District of Texas at Dallas
                                                                          FILED IN
                                                                   5th COURT OF APPEALS
Ali L. Ghanbari,                           §                           DALLAS, TEXAS
      Appellant                            §                       6/1/2018 5:08:40 PM
                                           §                             LISA MATZ
         v.                                §         No.   05-17-00257-CRClerk
                                           §
The State of Texas,                        §
     Appellee


                    State’s Motion to Strike Appellant’s Brief

      Comes Now, the State of Texas, and requests that the Court strike

Appellant’s brief; or, in the alternative, strike the first of his two appendices:

                                               I.

      Appellant was convicted of aggravated robbery after a jury trial. The jury

assessed punishment at 27 years’ confinement. Appellant timely filed notice of

appeal.

                                               II.

      On April 26, 2018, Appellant filed his brief. The certificate of compliance

states that the brief contains 14,961 words. Attached to the 84-page brief is an

appendix consisting of a brief in another, unrelated case.           The certificate of

compliance in the attached 69-page brief states that the brief contains 12,819

words.




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      The Fourth Issue in Appellant’s brief asserts that it “involves detailed

briefing and cannot be presented in full in this Brief due to the word-limitation.”

Brief at 68-69 (emphasis in original). Appellant’s brief further states:

      For a better understanding of the issues, undersigned counsel attaches
      the Appellant’s brief in Sims in the Appendix. The arguments for
      Appellant would be substantially similar as those undersigned
      counsel made for Mr. Sims. Sims is pending before the TCCA, and
      the opinion of the TCCA will likely control the resolution of this
      Issue.

Brief at 70. Appellant also states: “A full analysis of Harrison and how it applies

to Sims and to Appellant is provided in Appendix pages 58-62.” Brief at 71.

                                            III.

      The word limit for an opening brief in a non-death-penalty case is 15,000

words. See id. 9.4(i)(2)(B). The Court may allow a longer brief on motion of a

party. Id. 9.4(i)(4). Notably, the Rules of Appellate Procedure do not contemplate

a brief in a criminal appeal to contain an appendix. See id. 38.1(k) (providing for

“Appendix in Civil Cases”); see generally Moore v. State, 110 S.W.3d 31 n. 1

(Tex. App.—Waco 2002, no pet.) (mem. op.) (“Actually, Rule 38 does not

expressly provide for the inclusion of an appendix in a criminal brief.”). To the

extent a party in a criminal case is allowed to use an appendix, the Rules

specifically prohibit using it to avoid the word limits on briefs. See id. 38.1(k)(2);

Moore, 110 S.W.3d at 31 (“[A] party who chooses to provide an appendix in a

criminal brief must not use the appendix in an effort to avoid the page limits of
                                                                                    2
Rule 38.4.”). This Court has stated: “We do not look outside appellant’s brief for

his arguments and ignore devices such as appellant has used to circumvent the

briefing rules.” Coleman v. Prospere, 510 S.W.3d 516, 519 n.4 (Tex. App.—

Dallas 2014, no pet.) (discussing appellant’s references in his brief to nearly 60

pages of additional argument and authorities in the appendices). This Court has

also stated that an appellate court cannot consider documents cited in a brief and

attached as an appendix if they are not formally included in the record on appeal.

See Bertrand v. Bertrand, 449 S.W.3d 856, 863 & n.8 (Tex. App.—Dallas 2014,

no pet.) (holding that documents contained in an appendix but outside the appellate

record cannot be considered).

                                            IV.

      Appellant’s brief violates the briefing rules by attaching as an appendix a

brief in another case and incorporating its arguments by reference rather than

making a “clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record,” as required. Tex. R. App. P. 38.1(i).

Consequently, it is unclear how the law argued in this other brief applies to the

facts of the instant case. This puts the State in the untenable position of having to

read and comprehend a 69-page brief in a completely different case to determine if

and how it applies in the instant case. In short, Appellant leaves it to the State to




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make his arguments for him in order to refute them. This is contrary to the letter

and the spirit of the Rules.

      Moreover, Appellant does not indicate that the “Appendix” associated with

this Fourth Issue is otherwise included in the appellate record. Accordingly, it is

not a proper item for inclusion as an appendix to an appellate brief. See Bertrand,

449 S.W.3d at 863 & n.8.

                                           V.

      WHEREFORE, the State prays that this Court strike Appellant’s entire brief;

or, in the alternative, strike the first of the brief’s two appendices.



                                                Respectfully submitted,

                                                GREG WILLIS
                                                Criminal District Attorney
                                                Collin County, Texas

                                                JOHN R. ROLATER, JR.
                                                Assistant District Attorney
                                                Chief of the Appellate Division

                                                /s/ Libby Lange
                                                LIBBY LANGE
                                                Assistant Criminal District Attorney
                                                2100 Bloomdale Rd., Ste. 200
                                                McKinney, Texas 75071
                                                Bar No. 11910100
                                                (972) 548-4373
                                                llange@co.collin.tx.us



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                            CERTIFICATE OF SERVICE

       The State has e-served counsel for Appellant, Michael Mowla, through the

eFileTexas.gov filing system at michael@mowlalaw.com on this the 1st day of

June, 2018.


                                                    /s/ Libby Lange
                                                    Libby Lange


                         CERTIFICATE OF CONFERENCE

      On May 16, 2018, Assistant District Attorney John Rolater spoke with

Appellant’s counsel, Michael Mowla, about this motion. Mr. Mowla disagreed

that his brief violates the word limit and would oppose this motion.



                                                    /s/ Libby Lange
                                                    Libby Lange




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