                                                                                             ACCEPTED
                                                                                         03-17-00322-CR
                                                                                               21309851
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                     12/14/2017 10:31 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK

                    CAUSE NO. 03-17-00322-CR
   IN THE COURT OF APPEALS, THIRD-SUPREME JUDICIAL
                             DISTRICT                        FILED IN
                                                      3rd COURT OF APPEALS
                       _____________________              AUSTIN, TEXAS
                        RODERICK PAYTON               1/4/2018 8:00:00 AM
                              Appellant                 JEFFREY D. KYLE
                                                              Clerk
                                 v.
                      THE STATE OF TEXAS
                        ____________________
  Cause No. D-1-DC-16-301681, Travis County, Texas, 147th Judicial
       District Court, Honorable Clifford A. Brown, presiding
                       ____________________
       APPELLANT'S MOTION TO SET ASIDE ORDER OF
  ABATEMENT, SUSPENDE THE RULES, IF NECESSARY, AND
FOR EXTENSION OF TIME TO FILE BRIEF (FILED WITH BRIEF)

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, RODERICK PAYTON, appellant, pursuant to U.S. Const.,

Amends. 5 & 14, Tex.Const., Art. I, Secs. 13 & 19, and T.R.A.P., not limit-

ed to Rules 4.1, 10.5, and 26.3, and moves the Court to set aside its order

abating this appeal, suspend the rules, if necessary and extend the time for

filing appellant’s brief EIGHTEEN (18) days to December 15, 2017, and

shows:

                    I. PROCEDURAL HISTORY.
      On or about May 8, 2017, appellant, on plea of not guilty, was con-

victed by jury of Aggravated Robbery, a 1st degree felony. The jury sen-

tenced him to 10 years Texas Department Criminal Justice- Institutional

Division and no fine, recommending it be probated for 10 years. The trial

court purported to add a condition of 180 days ‘shock probation’. On May


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26, 2017, the Court re-sentenced appellant, removing the ‘shock probation’

condition and releasing Defendant onto probation.

      Defendant’s original Notice of Appeal was filed May 8, 2017. An

Amended Notice of Appeal and Motion of time to file Notice of Appeal was

filed on June 29, 2017. That motion was granted on July 19, 2017. The

Clerk’s record was filed July 7, and the reporter’s record on July 12, 2017.

      By order dated December 13, 2017, the Court abated this appeal and

remanded to the trial court for a hearing to determine if appellant desires to

prosecute this appeal and, if so, counsel has abandoned this appeal.

                 II. TWO PREVIOUS EXTENSIONS.
      Appellant has had two prior extensions to file his brief.

                        III. TIME OF MOTION.
      The brief was due November 27, 2017. This motion is filed

December 15, 2017.

             IV. REASONS FOR EXTENSION OF TIME.
      Appellant requests an extension based on the following:

1. Counsel filed the brief on December 15, 2017 (electronic transmittal on
December 14).

2. Counsel in good faith thought he could complete it by December 12, as he
said in his Third Motion for Extension. Counsel did not abandoned this
appeal, but it took 2 more days to complete than he estimated.

3. Counsel was diligently working to complete the brief and on track for
December 12, when on that date he learned for the first time that the prose-
cutor in the case that was supposed to be tried to jury today (December 14)
had directed a state agent to interview his client and all witnesses who

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worked for the City of Austin (defendant and at least 4 witnesses do) about
the incident underlying this criminal case, take affidavits and forward them
to the prosecutor. After spending some time talking to that person (and
getting her to agree not to interview counsel’s client), he learned that she
already had provided a statement from the client/defendant to the prosecutor
that had not been produced in discovery, as well as numerous emails and
other documents related to this incident, investigation thereof, and a civil
claim arising from it, which had also not been produced in discovery.
Counsel then tried unsuccessfully to call the prosecutor. He also spent time
to speaking to some of the witnesses to see what, if anything, might be new
or different, because trial was set to begin the morning of 14th.

       Meanwhile, he was also tried to secure copies of the juror question-
naires for the trial, which the judge previously ordered be provided then.

       He emailed the prosecutor about it on December 13, and finally got an
email reply in the afternoon, which included 3 new affidavits and a
previously undisclosed statement from the client/defendant. The prosecutor
also asked for agreement to continue the trial setting. Counsel then spent
time calling his client and critical witnesses to find out if they would be
available at a subsequent trial if the State’s continuance was granted. Be-
cause it was then 4:00 pm, he called the prosecutor repeatedly but unsuc-
cessfully to try and get some questions answered before he decided on the
State’s request. He also emailed the prosecutor with those.

       He did not get a voice or email response, so spent the night preparing
for the trial that was set to begin at 8:30 a.m. on December 14, including
reviewing the juror questionnaires that finally arrived.

       This morning at about 7:15 a.m., he finally received a call from the
prosecutor, who answered his questions but refused to provide discovery on
the remaining documents and proposed continuing to a pretrial to deal with
all the discovery issues (and then setting a priority trial setting). Counsel
informed him that he would not oppose in light of developments.

4. Counsel then spent the remainder of the day working to complete and file
the brief in this case.




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5. Today was counsel’s 60th birthday. He spent all day and some of the
evening working on this, though he did take a little time to speak to his
mother and siblings who called to wish him well.

6. Counsel’s also relies the facts in support of his last motion (Third Motion
for Extension) for extension to December 12, filed November 28, including
the following:

      “3. My 83 year old mother had a heart attack three weeks ago. She
      lives in rural east Texas. Her husband has been dead about 15 years.
      The closest family is some hour and a-half drive away in Dallas. I am
      the oldest son. We have tried to get her to move closer, but she
      refuses to until her house is sold. She won’t even use a ‘first-alert’
      device. Needless to say, I worry about her a lot.

             I had to take a few days to attend to some things for her right
      after. I also was with her (and the rest of the family) in Dallas from
      November 22, to 26, 2017.

            I was not able to work on the brief for those 2 days. I was able
      to work on it a limited time only during the Thanksgiving time.

      4. In order to free up as much time as possible to work on the appeal,
      counsel also ‘opted-out’ of all new appointments under his local
      (Travis County) fair defense act and took no new clients from earlier
      November through now.

      6. This included discovery, investigation, interviews, research and
      preparation of a motion for new trial in State v. Travis Marpoe,
      D1DC-17-203375, which was filed on November 17 (the 30th days
      after sentencing), and pre-sented to the trial judge on November 21,
      2017. I did not represent this person prior to being appointed on
      appeal on October 27, 2017.”

7. Counsel opted-out of appointment on some new cases, and turned back
an appointment on a new appeal, so that he would not take time from
working on this appeal. This and his prior opt-out is going to catch up with
him financially at some point.

8. Since the last motion for extension (Third) and in the few days before

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opted out again), counsel gained 5 new clients and disposed of 5 with 7
cases. In the 30 days before his last motion, he had disposed of some 24
cases for some 12 clients, and represented a total of some 56 clients, with
some 91 cases (approximately 52/88 appointed or jail), including 21 feloni-
es.

9. Though, as noted in the December 13 Order, the brief was originally due
August 11, 2017, as counsel explained in his first motion for extension, he
did not know the record had been completed until he received the Septem-
ber 14 Notice of Late Brief, and still couldn’t get it from the court report or
clerk (where it was apparently never filed) and finally just downloaded it
from this Court’s website (despite requesting the court reporter notify him
and checking at the District Clerk’s office, see that motion for more details).
In addition to his other cases and obligations, he was also working on a brief
in State v. William Phillips, Cause No. 13-17-00220-CR, which was
completed and filed about October 23.

10. Counsel is a solo practitioner without support staff, except for someone
who takes phone messages, mail, etc. Needless to say, he has not engaged in
holiday diversions, shopping, etc. since he returned from Thanksgiving.

11. Thus, he asks this Honorable Court to extend the time for filing his brief
to December 15, 2017 so the brief will be filed, and timely, and appellant
will be given a full and meaningful appeal and accorded due process and due
course of law, his right to appeal and effective assistance of counsel.

WHEREFORE, appellant prays this Court grant this motion and set aside its

order abating this appeal, suspend the rules, if necessary and extend the time

for filing appellant’s brief EIGHTEEN (18) days to December 15, 2017.

                                       RESPECTFULLY SUBMITTED,
                                             /s/ Christopher P. Morgan
                                       Christopher P. Morgan
                                       State Bar No. 14435325
                                       3009 N. IH 35
                                       Austin, Texas 78722
                                       (512) 472-9717 // FAX: 472-9798
                                       ATTORNEY FOR APPELLANT

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CERTIFICATE OF SERVICE: I, Christopher P. Morgan, hereby certify a
true copy of the foregoing Motion has been served on the Office of the
District Attorney for Travis County, Texas on December 15, 2017, by hand.

                                          /s/ Christopher P. Morgan
                                    Christopher P. Morgan




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