                                                                                      WR-84,065-01
                                                                        COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
October 26, 2015                                                     Transmitted 10/26/2015 12:06:35 PM
                                                                        Accepted 10/26/2015 1:02:29 PM
                                                                                         ABEL ACOSTA
                                  WR-_______________                                             CLERK
                         (Trial Court Cause No. W12-12630-Y(A))

   Ex parte Franklin Davis                 §          Court of Criminal Appeals
                                           §          Austin, Texas

       State’s Objection to Applicant’s Motion For “Preemptive
              Extension” Under Article 11.071, Section 4A
                                  and
       State’s Motion to Unseal Applicant’s Motion and Affidavit

          The State, by and through its Criminal District Attorney of Dallas County,

   Texas, files this objection and motion in response to applicant’s sealed motion to

   further extend the deadline for filing his original habeas application. The State

   opposes the extension request and asks this Court to unseal applicant’s motion

   and the supporting affidavit. In support of this objection and motion, the State

   presents the following:

                                  Procedural History

          The applicant, Franklin Davis, murdered sixteen-year-old Shania Gray on

   September 6, 2012. Davis was convicted of her capital murder, and, on November

   16, 2013, he received the death penalty. Two days later, the trial court appointed

   the Office of Capital and Forensic Writs (OCFW) to represent Davis in his original

   state habeas writ proceeding. (State’s Ex. A – “Order and Notice”).

          OCFW’s initial deadline for filing Davis’s writ application was September 18,


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2015. OCFW requested and received, with the State’s assent, its one, statutorily

authorized ninety-day extension, moving its deadline to December 17, 2015.1 See

Tex. Code Crim. Proc. art. 11.071, § 4(b) (West 2015). Thus, as of today, OCFW has

been handling Davis’s writ proceedings for nearly two years and still has almost

two more months to complete his application.

                  Extension Not Authorized by Section 4A

      OCFW asks this Court to act outside of its authority under article 11.071.

Tex. Code Crim. Proc. Ann. art. 11.071 (West 2015). OCFW seeks a “preemptive

extension motion” under section 4A of article 11.071. Tex. Code Crim. Proc. Ann.

art. 11.071, § 4A. Section 4A does not authorize this Court to grant additional

time to an applicant unless and until his writ application is late or untimely filed.

Tex. Code Crim. Proc. Ann. art. 11.071, § 4A(a). Davis’s application is not due for

almost two more months and, consequently, is not yet late or untimely.

      Furthermore, section 4A does not vest this Court with jurisdiction over

Davis’s habeas proceedings until the trial court notifies it that an untimely

application has been filed or that the deadline has passed without an application

being filed. Tex. Code Crim. Proc. Ann. art. 11.071, § 4. Until that time, the trial


1
  The Dallas County District Attorney’s Office customarily agrees to the statutorily
authorized 90-day extension.

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court retains jurisdiction over the writ proceedings, and, thus, this Court is

without authority to grant any additional time under section 4A.

      Applicant cites this Court to Ex parte Smith in which this Court granted a

preemptive extension to habeas counsel under section 4A. See Ex parte Smith,

No. WR-70,593-01, 2008 Tex. Crim. App. Unpub. LEXIS 990, at *2-3 (Tex. Crim.

App. Oct. 1, 2008) (not designated for publication). The State disagrees that the

extension in Smith was authorized under section 4A. As noted above, it is in direct

conflict with the clear and unambiguous language of the statute. But more

importantly,   Smith   is    limited   by       its   “extraordinary   and   unfortunate

circumstances.” Id. at *2.

      At the time he requested the preemptive extension, Smith’s habeas counsel

had recently replaced another attorney who became seriously ill. Id. Even with

the statutorily authorized 90-day extension, Smith’s new habeas counsel had only

seven months to complete an investigation and prepare an application. Id. And

notably, the State did not oppose the request for additional time. Id.

      In contrast, OCFW has been representing Davis for almost two years and

over that period of time has (as set out in greater detail below) conducted a

substantial investigation. In addition, OCFW is asking this Court to extend its

deadline in not one but several cases. And by granting OCFW’s request, this Court

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would effectively be exempting OCFW from the waiver provision of section 4(e) of

article 11.071 in all of those cases. Tex. Code Crim. Proc. Ann. art. 11.071, § 4(e)

(providing that failure to file application before the deadline constitutes a waiver

of all grounds for relief that were available to the applicant before the last date

on which the application could have been timely filed).

      Additionally, the instant request for more time is unlikely to be OCFW’s

last. As noted in the extension motion, OCFW represents a large number of death

penalty habeas applicants. Granting additional time in these cases with deadlines

in the coming two months will almost surely have the domino effect of delaying

work on cases with applications currently due just after the first of the year. If the

Court grants the instant request, how will it be able to justify denying additional

requests in the coming months?

                          An Extension is Unjustified

      Even assuming section 4A authorized a preemptive extension, the provision

requires a showing of “good cause” for the lateness of the application. Id. at §

4A(b). OCFW fails to establish good cause for the delay in Davis’s case.

      As noted above, OCFW was appointed to Davis’s case almost two years ago.

By OCFW’s own assertions, the office has been actively working on Davis’s writ

application for, at least, several months, if not longer. In OCFW’s August 2015

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motion for extension, Ms. Erin Eckhoff2 attested that OCFW had accomplished the

following:

              collected and reviewed files created during Davis’s trial, including
               those held by his trial counsel, defense team investigators, and
               various experts hired for either consultation or testimony by the
               defense team;

              reviewed the clerk’s and reporter’s records, both of which are
               substantial;

              independently identified and collected various records from Davis’s
               life history;

              completed a substantial independent investigation into Davis’s
               background and into the circumstances surrounding his conviction;

              identified multiple witnesses who have knowledge potentially
               pertinent to claims Davis intends to present in his application;

              identified several areas in which expert assistance is necessary; and

              had begun identifying additional witnesses who will need to be
               interviewed.

(State’s Ex. B – Davis’s “Unopposed Motion for Ninety-Day Extension of Time to

File Initial State Habeas Application,” pp. 4-5). Furthermore, according to Ms.

Eckhoff, OCFW needed only to finish reviewing “voluminous institutional records”

and obtain affidavits from its experts. Id. at pp. 5-6.



2
 Although Ms. Eckhoff handled the extension motion, Mr. Derek Verhagen has handled
all other pleadings and communications with the State.
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      In addition to the work noted in their prior extension request, OCFW has (1)

obtained access to sealed items (i.e., juror information) in the district clerk’s

custody, (2) viewed in person the exhibits offered into evidence at trial, and (3)

moved for access to the State’s trial files.3 Moreover, several members of OCFW,

including Mr. Derek Verhagen, attended oral argument on Davis’s direct appeal.

      In the affidavit accompanying his sealed extension motion, the new director

of OCFW, Mr. Benjamin Wolff, does not acknowledge the work that his staff has

already completed in Davis’s case. Nor does he allege or explain how his staff’s

work is deficient or inadequate. Mr. Wolff asserts only generally that a backlog

exists due to the replacement of the previous director and staff turnover. Given

that the request Mr. Wolff makes of this Court is highly unusual, if not

unprecedented, his motion should at least specifically address what the additional

ninety days is needed for. Absent some showing of a specific need in Davis’s case

particularly, his request for additional time should be denied.

                   Motion and Affidavit Should Be Unsealed

      Whether or not the Court grants OCFW’s request in this case, the State asks

the Court to unseal the motion and the supporting affidavit of Mr. Wolff. In

support of its request to seal the motion and affidavit, OCFW cites Texas Civil

3
 In the past, the Dallas County District Attorney’s Office has provided state writ counsel
access to its trial files after the filing of the writ application.
                                            6
Procedure Rule 76a. Tex. R. Civ. Proc. 76a. But this rule does not govern in

criminal proceedings. It provides for the sealing of court documents in only civil

cases. OCFW effectively acknowledges as much, citing the rule by way of

comparison only. (Motion, p. 5).

      OCFW also cites this Court to article 1.27 of the criminal procedure code.

Tex. Code Crim. Proc. Ann. art. 1.27 (West 2005). This article provides that, where

the code does not provide a rule of procedure, the common law applies. Id. Yet

OCFW fails to identify, and the State is not aware of, any case law authorizing the

sealing of criminal court documents under these circumstances.

      Furthermore, the motion and affidavit need to be public.

      OCFW’s appointment in death penalty habeas proceedings is mandated by

statute. Tex. Code Crim. Proc. Ann. art. 11.071, § 2. There are exceptions to

OCFW’s appointment, however. In particular, the office may not accept an

appointment if: (1) a conflict of interest exists; (2) the office has insufficient

resources to provide adequate representation for the defendant; (3) the office is

incapable of providing representation for the defendant in accordance with the

rules of professional conduct; or (4) other good cause is shown for not accepting

the appointment. Tex. Gov’t. Code Ann. § 78.054 (West 2013).



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      A trial court could reasonably conclude that OCFW’s current docket and

manpower issues directly relate to the office’s ability to provide adequate

representation at this time. A court could also conclude that those same issues

constitute “other good cause” not to appoint OCFW in the immediate future.

Indeed, until these issues are resolved, appointment of other counsel may be the

most prudent action. If the situation is as serious as alluded to in OCFW’s motion

and affidavit, then trial court judges should be made aware of it so that they may

make an informed decision and ensure that counsel with adequate time,

resources, and experience are appointed. As Mr. Wolff acknowledges in his

affidavit, “the rushed and impaired representation of the OCFW in these cases

could at some point be subject to attack under Martinez v. Ryan, 132 S.Ct. 1309

(2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013).” (Wolff Affidavit, p. 10).

                                       Prayer

      For the foregoing reasons, the State asks the Court to dismiss or deny

Davis’s extension request and to unseal his motion and the supporting affidavit.




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                                          Respectfully submitted,


                                          ______________________________
Susan Hawk                                Lisa Smith (SBN 00787131)
Criminal District Attorney                Assistant District Attorney
Dallas County, Texas                      Frank Crowley Courts Bldg.
                                          133 N. Riverfront Blvd., LB-19
                                          Dallas, Texas 75207-4399
                                          lbsmith@dallascounty.org
                                          (214) 653-3630

                           Certificate Of Service
     The State mailed a true copy of the foregoing response to applicant’s
counsel, Benjamin B. Wolff, Office of Capital and Forensic Writs, at
Benjamin.Wolff@ocfw.txas.gov), on October 26, 2015.

                                          ______________________________
                                          Lisa Smith


                               Certificate of Compliance
       According to Microsoft Word 2010, this response is 1783 words long. See
Tex. R. App. P. 73.1(f); Tex. R. App. P. 73.3.

                                          ______________________________
                                          Lisa Smith




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