Burks, Gene Allen

• Court: Court of Appeals of Texas
• Decided: February 11, 2015
• Docket: PD-0157-15
• Status: Published

Opinion

PD-0157-15 PD-0157-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS February 11, 2015 Transmitted 2/9/2015 11:40:32 AM Accepted 2/11/2015 2:56:28 PM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK

GENE ALLEN BURKS, § Appellant § v. § NO. PD-____ 15 § THE STATE OF TEXAS, § Appellee §

FIRST MOTION FOR EXTENSION OF TIME FOR FILING OF STATE’S PETITION FOR REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State requests that the Court grant an extension of time for the

filing of the State’s petition for review in this case. TEX.R.APP.P. 10.5(b) &

68.2(c). The following allegations are made in support of this motion:

-I-

The court below is the Court of Appeals for the Second Court of

Appeals District of Texas. The style and number of the case in the court of

appeals is Gene Allen Burks v. The State of Texas, cause number

02-13-00560-CR. On January 8, 2015, the Second Court of Appeals

reversed the trial court’s conviction in a published opinion authored by

Justice Sue Walker. No motion for rehearing was filed.

- II -

Charged with felony driving while intoxicated, Appellant relied on the

Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013) during a pretrial suppression hearing. The trial court, Hon.

Scott Wisch, rejected Appellant’s motion to suppress, and the Fort Worth

Court of Appeals reversed that decision. Burks v. State, ___ S.W.3d ___,

2015 WL 115964 (Tex. App.—Fort Worth Jan. 08, 2015).

- III -

The appeal was perfected on November 18, 2013, the date notice of

appeal was filed.

- IV -

The current deadline for filing the State’s petition for discretionary

review is February 9, 2015. No extension has previously been granted

regarding the State’s petition.

-V-

The extension is not requested for purposes of delay but rather to

adequately brief the legal issues warranted by the decision of the court of

appeals.

- VI -

Counsel has had the following other obligations which have prevented

her from completing the State’s brief. Counsel filed her State’s reply brief in

Charles Jerome McClenty v. State of Texas, cause number

02-12-00347-CR. Before the Eleventh Court of Appeals, counsel presented oral argument in Laura Denise Moore v. State, cause number

11-13-00347-CR. In that case, counsel also filed a lengthy post-submission

letter brief of additional authorities. For all of these reasons, counsel

requests an additional thirty days in which to file the State’s petition.

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court grant this First Motion for Extension of Time for Filing the

State’s Petition for Discretionary Review and extend the time for filing of the

State’s brief for thirty days to March 11, 2015.

Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR, Assistant Criminal District Attorney Chief of the Appellate Section

/s/ TANYA S. DOHONEY TANYA S. DOHONEY, Assistant Criminal District Attorney State Bar No. 02760900 Tim Curry Criminal Justice Center 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 COAappellatealerts@tarrantcounty.com CERTIFICATE OF SERVICE

A true copy of the State’s motion has been e-served to opposing

counsel, Hon. Abe Factor, lawfactor@yahoo.com, Factor & Campbell, LLP,

5719 Airport Frwy, Fort Worth, Texas 76117, and to the State Prosecuting

Attorney, the Hon. Lisa McMinn, information@spa.texas.gov, P.O. Box

13046, Austin, Texas 78711 this 9th day of February, 2015.

/s/ TANYA S. DOHONEY TANYA S. DOHONEY

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