COURT OF CRIMINAL APPEALS                                                                  PD-1406-14
                                                                         COURT OF CRIMINAL APPEALS
       March 25, 2015                                                                     AUSTIN, TEXAS
                                                                       Transmitted 3/26/2015 2:57:51 PM
   abelacosta, clerk                                                     Accepted 3/26/2015 2:59:56 PM
                  IN THE COURT OF CRIMINAL APPEALS OF TEXAS                               ABELACLERK
     JOSE RAMIRO DELAROSA,                    §          CCA NO. PD-1406-14
         APPELLANT                            §
                                              §
     V.                                       §          COA NO. 05-14-01020-CR
                                              §
     THE STATE OF TEXAS,                      §
              APPELLEE                        8          TC NO. F14-52888-T




                            STATE'S MOTION FOR LEAVE TO FILE
                        REPLY BRIEF AS PER TEX. R. APP. P. 70.4


     STATE'S        PLEADING     IN   REPLY   TO   APPELLANT'S      MERIT       BRIEF   ON
     STATE'S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
     OF THE COURT OF APPEALS FOR THE COURT OF APPEALS, FIFTH
     DISTRICT OF TEXAS IN CAUSE NUMBER 05-14-01020-CR, THAT HAD
     BEEN APPEALED FROM CAUSE NUMBER F14-52888-T IN THE 283rd
     JUDICIAL DISTRICT COURT OF DALLAS COUNTY,                            TEXAS,        THE
     HONORABLE RICK MAGNIS, JUDGE PRESIDING.



                                                   SUSAN HAWK
                                                   Criminal District Attorney
                                                   Dallas County, Texas

                                                   MICHAEL R. CASILLAS
                                                   Assistant Criminal District Attorney
                                                   Appellate Division



                        *&      \&
                                                   State Bar No. 03967500
                                                   133 N. Riverfront Blvd., LB 19
                                                   Dallas, Texas 75207-4399
                                                   (214) 653-3600/FAX (214) 653-3643
                                                   Mcasillas@dallascounty.org
                                                   michael.casillas@dallascounty.org;
                 IN THE COURT OF CRIMINAL APPEALS
                                    OF TEXAS


JOSE RAMIRO DELAROSA,                   §            CCA NO. PD-1406-14
     APPELLANT                          §
                                        §
V.                                      §            COA NO. 05-14-01020-CR
                                        §
THE STATE OF TEXAS,                     §
      APPELLEE                          8            TC NO. F14-52888-T



                  STATE'S MOTION FOR LEAVE TO FILE
                 REPLY BRIEF AS PER TEX. R. APP. P. 70.4


TO THE HONORABLE COURT OF CRIMINAL APPEALS:


      The State hereby respectfully moves this Court for leave to permit the State

to file the State's Reply Brief On The Merits that is being tendered to the Court

contemporaneously with the instant motion.     While the appealing party before an

intermediate appellate court has a right file a reply brief under the Texas Rules of

Appellate Procedure, the filing of a reply brief before this Court may only be

accomplished with this Court's leave according to the terms of Tex. R. App. P.

70.4. For the following reasons, the State requests leave of this Court to file the

State's Reply Brief On The Merits that accompanies the instant motion. In support

of this motion, the State would show this Court the following:
      The State's petition for discretionary review was previously granted on

January 28, 2015.     That petition for discretionary review initially presented an

issue of a fairly-limited nature, i.e., whether the Fifth Court erred by failing to

follow Tavlor v. State, 247 S.W.3d 223 (Tex. Crim. App. 2008) and make use of

the abatement process to determine whether the trial court had in fact granted a

motion for new trial, which would determine whether the Fifth Court did or did not

have jurisdiction over Delarosa's case.

      However, the nature of the issues presented by this case became more

complex when Delarosa filed a motion to dismiss the State's previously-granted

petition for discretionary review based on a "judgment" that had been issued by the

trial court while the State's timely-filed petition for discretionary review was

pending before this Court.     The State's response to Delarosa's dismissal motion

informed this Court that Delarosa's dismissal motion had squarely raised the issue

of whether this Court had sole and exclusive jurisdiction at the time the

"judgment" of December 17, 2014 was entered. Accordingly, this Court directed

the parties to brief not only the substantive issue that arose directly from the State's

petition for discretionary review, but also the issue of whether the invocation of
this Court's jurisdiction had deprived the trial court of any jurisdiction to attempt

to dispose of the case.

      The State submitted its opening merit brief and Delarosa also submitted a

separate jurisdictional brief and a reply brief on the merits. Based on issues raised

in Delarosa's Reply Brief, the State has drafted the State's Reply Brief On The

Merits to address certain issues raised by Delarosa's Reply Brief.      In short, the

State's Reply Brief On The Merits discusses how the arguments in Delarosa's

Reply Brief are based on multiple unproven assumptions, assumptions that the use

of the abatement process would have the clear potential to clarify.       Moreover,

Delarosa's Reply Brief raises certain issues regarding what the trial court would

have been required to do had the trial court actually granted Delarosa's motion for

new trial based on the sole claim it contained, which was a claim of insufficiency

of the evidence.


                                      II.


       The relevant language of the Texas Rules of Appellate Procedure permit the

appealing party before the intermediate appellate court to file a reply brief that

addresses "any matter in the appellee's brief as a matter of right. Tex. R. App. P.

38.3. While Tex. R. App. P. 70.4 conditions the filing of a reply brief before this

Court by the appealing party on this Court's granting leave to file such a reply
brief, the State submits that the State's Reply Brief On The Merits addresses

matters in Delarosa's Reply Brief that this Court would want to consider in

deciding how     to resolve the issues presented by the         State's petition for

discretionary review and the State's response to Delarosa's dismissal motion.

Accordingly, the State respectfully seeks leave from this Court to file the State's

Reply Brief On The Merits so that the relevant considerations identified therein

will undoubtedly be placed before this Court.

                                     PRAYER


      WHEREFORE, PREMISES CONSIDERED, the State prays that this Court

will grant the State leave to file the State's Reply Brief On The Merits that

accompanies the instant motion and will order the State's Reply Brief On The

Merits filed as of date of this Court's choosing.




                                  Respectfully submitted,

                                  SUSAN HAWK,
                                  Criminal District Attorney
                                  Dallas County, Texas


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                                  MICHAEL R. CASILLAS,
                                  Assistant Criminal District Attorney
                                  Appellate Division
                                  133 N. Riverfront Blvd., LB 19
                               Dallas, Texas 75207-4399
                               (214) 653-3600; FAX (214) 653-3642
                               State Bar No. 03967500




                        CERTIFICATE OF SERVICE


      I hereby certify that - no later than April 1, 2015 - a true, electronically-

formatted copy of the instant State's Motion For Leave has been served on

opposing counsel, the Hon. Leslie McFarlane and has been served on the State's

Prosecuting Attorney, the Hon. Lisa McMinn by use of the electronic service

function that accompanies the filing of the instant State's Motion For Leave with

this Court through the electronic filing service provider known as eFileTexas.gov

(which was formerly known as TexFile).



                              ^yvbxhJi fl. Ca^M*^
                               MICHAEL R. CASILLAS,
                               Assistant Criminal District Attorney
                               Appellate Division
                               133 N. Riverfront Blvd., LB 19
                               Dallas, Texas 75207-4399
                               (214) 653-3600; FAX (214) 653-3643
                               State Bar No. 03967500
