Eric Alan Moore, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 03-14-00381-CR
• Status: Published

Opinion

ACCEPTED 03-14-00381-CR 5824472 THIRD COURT OF APPEALS AUSTIN, TEXAS Kristen Jernigan 6/25/2015 1:57:09 PM JEFFREY D. KYLE Attorney at Law CLERK

207 S. Austin Ave., Georgetown, Texas 78626 (512) 904-0123 (AUSTIN AREA) (832) 642-3081 (HOUSTON FILEDAREA) IN 3rd COURT OF APPEALS KRISTEN@TXCRIMAPP.COM AUSTIN, TEXAS 6/25/2015 1:57:09 PM B BOARD CERTIFIED' JEFFREY D. KYLE CRIMINAL APPELLATE LAW Clerk

June 25,2015

VIA CERTIFIED MAIL, RRR # 7014 2120 0004 1503

Eric Alan Moore, Jr. TDCJ No. 01936595 Ferguson Unit 12120 Savage Drive Midway, Texas 75852-3654 Re: Eric Alan Moore, Jr. v. The State of Texas, No. 03-14-00381-CR

Dear Eric:

I have enclosed a copy of the Court of Appeals' opinion in your case. Unfortunately, your conviction and sentence were affirmed by the Court. The Court's opinion was issued on June 24,2015. You now have the right to file a pro se Petition for Discretionary Review. That Petition is due within thirty days of the date of the Court's opinion, making it due on or before July 24, 2015. As a courtesy, I have filed an extension of that filing deadline with the Court of Criminal Appeals, which I have enclosed. If that motion is granted, your petition will be due on or before September 22, 2015. I have enclosed a copy of the relevant Rules of Appellate Procedure that apply to petitions for discretionary review so that you will know the deadlines and requirements for filing the petition. When you file the petition, be sure to attach a copy of the Court of Appeals' opinion. I urge you to contact the Bell County District Clerk to obtain the records you may need to draft your petition. In addition I have attached a motion you can file with the Court of Appeals to obtain a copy of your appellate record. The Bell County District Clerk's address is:

Bell County District Clerk 1200 Huey Road Belton, Texas 76513

The Court of Appeals address is:

Third Court of Appeals P.O. Box 12547 Austin, Texas 78711

The Texas Court of Criminal Appeals address is:

Texas Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711

I wish you the best of luck.

Sincerely, /s/ Kristen Jernigan

Kristen Jernigan TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00381-CR

Eric Alan Moore, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 67109, HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

Eric Alan Moore, Jr. appeals the district court's judgment adjudicating guilt, revoking

his probation, and sentencing him to six years in prison. He contends the revocation of his probation

was an abuse of the court's discretion because the victim denied the assault occurred and another

witness's testimony about the assault was not credible. We will affirm the district court's judgment.

BACKGROUND Moore was indicted in 2010 for aggravated assault with a deadly weapon. See

Tex. Penal Code § 22.02. He entered into a plea agreement placing him on deferred-adjudication

probation for ten years. The first condition of his probation was that he "neither commit nor be

convicted of any offense against the laws of the State of Texas."

On an early morning in 2014, Moore and his girlfriend Jaquilla Scott got into an

argument. Moore kicked in the door of her apartment, and then the altercation moved outside. The noise from the quarrel and the cries of the couple's child woke the neighbors. A few of them went

outside and attempted to stop the altercation. One of the neighbors, Peatreia Spells, testified that

she heard another neighbor, Shanta Britton, yelling "Stop hitting her!" Spells grabbed her gun and

placed it in her jacket pocket before stepping outside her apartment. When she saw that Moore had

Scott by the hair and was punching her, Spells threatened to shoot Moore if he hit Scott again. She

then called the police at Scott's request. After the police arrived, they took pictures of Scott and the

scene of the argument and spoke with Moore, Scott, and neighbors who witnessed the argument.

The neighbors reported that Moore struck Scott, consistent with Scott's injuries, including

her "busted lip" that officers saw and photographed. Based on the witnesses' statements and the

officers' observations, the officers concluded there was probable cause to believe the assault took

place and arrested Moore.

The State subsequently filed a motion to adjudicate Moore's guilt and revoke

his probation, alleging that he violated it by committing the offense of assault family violence. See

Tex. Code Crim. Proc. art. 42.12, § 5(b) (providing adjudication procedure for violation of

condition of community supervision); Tex. Penal Code § 22.01 (defining offense of assault). At the

subsequent hearing on the motion, Moore pled "not true" to the allegations, and in her testimony

Scott denied that Moore hit her. Three neighbors testified otherwise. At the conclusion of the

hearing, the court found the State's allegations to be true, revoked Moore's probation, and sentenced

him. Moore then filed this appeal. DISCUSSION

In one issue on appeal, Moore challenges the sufficiency of the evidence supporting

the district court's judgment, emphasizing Scott's testimony that he did not assault her and

challenging the credibility of Spells's testimony.

We review an appeal from a revocation of probation under an abuse of discretion

standard, taking into account the sufficiency of the evidence supporting the basis for revocation.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Abuse of discretion occurs "only

when the trial judge's decision was so clearly wrong as to lie outside the zone within which

reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667,682 (Tex. Crim. App. 1992).

A trial court abuses its discretion in revoking probation if the State fails to prove by a preponderance

of the evidence that a violation of probation occurred. Cobb v. State, 851 S.W.2d 871, 874

(Tex. Crim. App. 1993). In this context, "a preponderance of the evidence" means "the greater

weight of the credible evidence which would create a reasonable belief that the defendant violated

a condition of his probation." Rickets v. State, 202 S.W.3d 759, 764 (Tex. Crim App. 2006);

see Moore v. State, No. 03-08-00097-CR, 2008 Tex. App. LEXIS 8138, at *3 (Tex. App.—Austin

Oct. 24,2008, pet. refd) (mem. op., not designated for publication).

The degree of proof required to establish the truth of the allegation in a motion to

revoke probation is not the same as a criminal prosecution. Hacker, 389 S.W.3d at 865. This means

that a defendant may be acquitted of a crime and still have his probation revoked based on the

same act because a preponderance-of-the-evidence standard—rather than beyond-a-reasonable-

doubt standard—applies to revocation proceedings. See Barrett v. State, 630 S.W.2d 335, 336-37

(Tex. App.—Houston [14th Dist.] 1982, no writ). We do not engage in a "divide and conquer" 3 strategy to evaluate the sufficiency of evidence but consider the combined and cumulative force of

all the evidence before the trial court, id. at 873, viewed in the light most favorable to its ruling,

Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). The trial judge is the

sole judge of the credibility of the witnesses and the weight to be given to their testimony. Mauney,

107S.W.3dat695.

Sufficiency of evidence supporting violation

Moore contends that there is insufficient evidence supporting the district court's

judgment because Scott testified that Moore did not hit her. Because Scott denied the assault, Moore

asserts the court abused its discretion in finding that the assault occurred. We disagree.

The court heard Scott testify that she did not wish to be at the hearing. She stated that

she lived with Moore, who was her boyfriend and the father of one of her children, and that

Moore cared for her children while she worked. She admitted that she continued to live with

Moore even after their altercation.1 The court also heard an investigating officer2 testify that Moore's

mother came to the scene and told Scott to tell the police that Moore did not hit her.3 Scott testified

that Moore did not hit her.

1 When the first half of the hearing recessed and before Scott testified, the district court ordered Moore not to have any contact with Scott until the hearing concluded. 2 Officer Kyle Moore of the Killeen Police Department testified about the investigation. We refer to him by his title because he has the same last name as appellant. 3 The officer also testified that he showed Scott's injury to Moore's mother, "And, then, that's when she looked at her lip and she was kind of like, okay, well, maybe he messed up." But other evidence at the hearing conflicted with Scott's testimony, including police

photographs of her taken at the scene and the testimony of her neighbors. Police photographs show

Scott's facial injury, a "busted" lip. When the prosecutor told Scott, "We have seen your busted lip,"

Scott began to cry. She offered no explanation for her injury. Spells testified that she saw Moore

hold Scott by the hair and repeatedly hit her "in her face and in her head" and that he did not stop

until Spells, without drawing her gun, threatened to shoot him. Britton, another of Scott's neighbors,

similarly testified that Moore hit Scott in "the face area." And another of Scott's neighbors, Gina

Erwin, who did not know Moore or Scott, testified that she heard sounds, opened her apartment door,

and saw "the guy get on top of her and start hitting on her," "just wailing on her head." When asked

about this testimony, Scott said she did not know why her neighbors would go to court and tell the

judge that they saw Moore hitting her if it had not happened.

Moore does not challenge the testimony from Britton or Erwin, but he contends that

Spells "embellished" her testimony to justify bringing a gun with her and threatening to shoot him.

However, the district court was entrusted with determining whether the testimony from Scott and

her neighbors was credible and reconciling any conflicts in their testimony. See Hacker, 389 S. W.3d

at 865. After considering the combined and cumulative force of all the evidence, the district court

could have rejected Scott's denial of the assault as not credible and found that the neighbors'

testimony that Moore hit Scott was credible. See id. at 873. Testimony from Scott's neighbors also

aligns with the depiction of Scott's injuries in police photographs.

Viewing the evidence and reasonable inferences therefrom in the light most favorable

to the district court's ruling, we conclude that the greater weight of credible evidence in this

record supports the court's reasonable belief that Moore violated a condition of his probation by

5 assaulting Scott. As such, the court did not abuse its discretion by revoking Moore's probation and

adjudicating his guilt. We overrule Moore's sole issue on appeal.

CONCLUSION

We affirm the district court's judgment.

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: June 24,2015

Do Not Publish TEXAS RULES OF APPELLATE PROCEDURE _Pagc71

opinion wtthoutmodifyingits judgment, the Court will ordinarily 663. Reasons for Granting Review deny a second motion for rehearing unless the new opinion is substantially different from the original opinion. While neither controlling nor fully measuring the Court of Criminal Appeals'discretion, the following will be considered by the Court in deciding whether to grant discretionary review: Rule 65. Enforcement of Judgment after Mandate (a) whether a court of appeals' decision conflicts with another court of appeals' decision on the same issue; 65.1. Statement of Costs (b) whether a court of appeals has decided an important The Supreme Court clerk will prepare, and send to the question of state or federal law that has not been, but clerk to whom the mandate is directed, a statement of costs should be, settled by the Court of Criminal Appeals; showing: (c) whether a court of appeals has decided an important (a) the costs that were incurred in the Supreme Court, question of state or federal law in a way that with a notation of those items that have been paid conflicts with the applicable decisions of the Court and those that are owing; and of Criminal Appeals or the Supreme Court of the United States; (b) the party or parties against whom costs have been adjudged. (d) whether a court of appeals has declared a statute, rule, regulation, or ordinance unconstitutional, or 65.2. Enforcement of Judgment appears to have misconstrued a statute, rule, regulation, or ordinance; If the Supreme Court renders judgment, the trial court need not make any further order. Upon receiving the Supreme Court's (e) whether the justices of a court of appeals have mandate, the trial court clerk must proceed to enforce the disagreed on a material question of law necessary to the court's decision; and judgment of the Supreme Court's as in any other case. Appellate court costs must be included with the trial court costs in any process to enforce the judgment If all or part of the costs are (f) whether a court of appeals has so far departed from collected, the trial court clerk must immediately remit to the the accepted and usual course of judicial appellate court clerk any amount due to that clerk. proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court Notes and Comments of Criminal Appeals' power of supervision.

Comment to 1997 change: Subdivision 65.1 is new. 66 A Documents to Aid Decision Subdivision 65.2 is from former Rule 183. (a) Acquiring Documents. The Court of Criminal Appeals—or any judge of the Court—may order SECTION FIVE: the court of appeals clerk to promptly send the PROCEEDINGS IN THE following items to the Court in order to aid it in deciding whether to grant discretionary review: COURT OF CRIMINAL APPEALS (1) the appellate record; Rule 66. Discretionary Review in General (2) a copy of the opinions of the court of appeals;

66.1. With or Without Petition (3) a copy of the motions filed in the court of appeals; and The Court of Criminal Appeals may review a court of appeals" decision in a criminal case on its own initiative under (4) certitledcopiesofanyjudgrnentororderofthe Rule 67 or on the petition of a party under Rule 68. court of appeals.

6&2. Not a Matter of Right (b) Return of Documents. If discretionary review is not granted, the clerk of the Court of Criminal Appeals Discretionary review by the Court of Criminal Appeals is will return the appellate record to the court of not a matter of right, but of the Court's discretion. appeals clerk.

71 Page 72 TEXAS RULES OF APPELLATE PROCEDURE

Notes and Comments 68.1. Generally Comment to 1997 change: This is former Rule 200. The former rule's reference to motions for rehearing now appears in On petition by any party, the Court of Criminal Appeals Rule 49.9. The rule is otherwise amended without substantive may review a court of appeals' decision in a criminal case. change. 68.2. Time to File Petition

Rule 67. Discretionary Review (a) First Petition. The petition must be filed within 30 Without Petition days after either the day the court of appeals' judgment was rendered or the day the last timely 67.1. Four Judges'Vote motion for rehearing or timely motion for en banc reconsideration was overruled by the court of By a vote of at least four judges, the Court of Criminal Appeals may grant review of a court of appeals' decision in a criminal case at any time before the mandate of the court of (b) Subsequent Petition. Even if the time specified in (a) appeals issues. An order granting review will be filed with the has expired, a party who otherwise may file a clerk of the Court of Criminal Appeals, who must send a copy to petition may do so within 10 days after the timely the court of appeals clerk. filing of another party's petition.

67.2. Order Staying Mandate (c) Extension of Time. The Court of Criminal Appeals may extend the time to file a petition for To provide enough time for the Court of Criminal Appeals discretionary review if a party files a motion to decide whether to grant discretionary review under 67.1, the complying with Rule 10.5(b) no later than 15 days Court—or any judge of the Court—may file with the clerk of after the last day for filing die petition. The Court of the court of appeals an order staying the court of appeals' Criminal Appeals may extend the time to file a mandate. The order must be signed by a judge of the Court of response or reply if a party files a motion complying Criminal Appeals. The clerk of the Court of Criminal Appeals wi w Rule 10.5(b) either before or after the response must immediately send a copy of the order to the court of appeals or reply is due. clerk. Notes and Comments 673. Time to Issue Mandate Extended Comment to 2011 change: Theamendment to Rule 682(a) Unless otherwise limited in the order itself, an order resolves timely filing questions concerning motions for en banc reconsideration by including those motions in calculating time to staying the court of appeals' mandate under 67.2 will extend for an additional 45 days the time before issuance of the court of file. appeals' mandate. An order granting review prevents the issuance of the court of appeals' mandate pending the further 683. Where to File Petition order of me Court of Criminal Appeals. If four judges do not agree to grant review within that time the court of appeals clerk (a) The petition and all copies of the petition must be filed must issue the mandate. with the clerk of the Court of Criminal Appeals.

Notes and Comments (b) Petition Filed in Court of Appeals. If a petition is mistakenly filed in the court of appeals, the petition is deemed to Comment to 1997 change: This is former Rule 201. The have been filed the same day with the clerk of the Court of rule is amended without substantive change. Criminal Appeals, and the court of appeals clerk must immediately send the petition to the clerk of the Court of Comment to 2000 change: Language which was in the Criminal Appeals. catchline of former Rule 201 has been deleted from Rule 67.1, to restore the substance of the rule, and to remove any implication Notes and Comments that the court may not grant review on its own motion when a Comment to 2011 change: Rule 683 is changed to require petition for discretionary review has been filed. petitions for discretionary review to be filed in the Court of Criminal Appeals rather than in the court of appeals. With the deletion of Rule 50, there is no reason to file petitions in the Rule 68. Discretionary Review court of appeals. Rule 683(b) is added to address and prevent With Petition the untimely filing of petitions for discretionary review mat are

72 TEXAS RULES OF APPELLATE PROCEDURE Page 73

incorrectly filed in the court of appeals rather than in the Court If the petitioner has access to the record, the of Criminal Appeals. petitioner must (after each ground) refer to the page of the record where the matter complained of is 68.4. Contents of Petition found. Instead of listing grounds for review, the A petition for discretionary review must be as brief as petition may contain the questions presented for review, expressed in the terms and circumstances of possible. It must be addressed to the "Court of Criminal Appeals the case but without unnecessary detail. The of Texas'* and must state the name of the party or parties statement of questions should be short and concise, applying for review. The petition must contain the following not argumentative or repetitious. items: (h) Argument. The petition must contain a direct and (a) Identity of Judge, Parties, and Counsel. The petition concise argument, with supporting authorities, must list the trial court judge, all parties to the amplifying the reasons for granting review. See Rule judgment or Older appealed from, and the names and 663. The court of appeals' opinions will be addresses of all trial and appellate counsel. considered with the petition, and statements in those opinions need not be repeated if counsel accepts (b) Table of Contents. The petition must include a table them as correct of contents with references to the pages of the petition. The table of contents must indicate the (i) Prayer for Relief. The petition must state clearly the subject matter of each ground or question presented nature of the relief sought for review. 0) Appendix. The petition must contain a copy of any (c) Index of Authorities. The petition must include an opinion of the court of appeals. index of authorities arranged alphabetically and indicating the pages of the petition where the 683. Deleted authorities are cited. 6&6. Nonconforming Petition (d) Statement Regarding Oral Argument. The petition must include a short statement of why oral argument The Court may strike, order redrawn, or summarily refuse would be helpful, or a statement that oral argument a petition for discretionary review that is unnecessarily lengthy is waived. If a reply or cross-petition is filed, it or that does not conform to these rules. likewise must include a statement of why oral argument should or should not be heard. 68.7. Court of Appeals Clerk's Duties

(e) Statement oftkeGise.ThepeLilionmuslstalizbriefly Within 15 days of receiving notice of die filing of a the nature of the case. This statement should seldom petition for discretionary review from the clerk of the Court of exceed half a page. The details of the case should be Criminal Appeals, the clerk of the court of appeals must send to reserved and stated with the pertinent grounds or the clerk of the Court of Criminal Appeals the record, any questions. motions filed in the case, and copies of any judgments, opinions, and orders of the court of appeals. The clerk need not forward (f) Statement of Procedural History. The petition must any nondocumentary exhibits unless ordered to do so by the state: Court of Criminal Appeals.

(1) the date any opinion of the court of appeals Notes and Comments was handed down, or the date of any order of the court of appeals disposing of the case Comment to 2011 change: Rule 68.7(a) and (b) are deleted without an opinion; and (c) is amended to reflect changes consistent with filing the petition and reply in the Court of Criminal Appeals rather than (2) the date any motion for rehearing was filed (or in the court of appeals, and to order the record to be sent to the a statement that none was filed); and Court of Criminal Appeals. Additionally, Rule 68.7(c) is amended to delete reference to Rule 50, which is abolished.. (3) thedatethemotionforiehearmgwasoverruled or otherwise disposed of. 68.8. Court of Criminal Appeals Clerk's Duties

(g) Grounds for Review. The petition must state briefly, Upon receipt of the record from the court of appeals, the without argument, the grounds on which the petition clerk of the Court of Criminal Appeals will file the record and is based The grounds must be separately numbered. enter the filing on the docket

73 Page 74 TEXAS RULES OF APPELLATE PROCEDURE

Notes and Comments Comment to 2011 change: The address for the State Prosecuting Attorney is deleted because it has changed Comment to 2011 change: Rule 68.8 is amended to reflect and may change again. changes consistent with filing the petition in the Court of Criminal Appeals. Rule 69. Action of Court on Petition for Discretionary Review and After 68.9 Reply. Granting Review 69.1. Granting or Refusal The opposing party has 15 days after the timely filing of die petition in the Court of Criminal Appeals to file a reply to If four judges do not vote to grant a petition for the petition with the clerk of the Court of Criminal Appeals. discretionary review, the Court will enter a docket notation that the petition is refused. If four judges vote to grant a petition, the Court will enter a docket notation that discretionary review is Notes and Comments granted. Comment to 2011 change. This Rule is added so that any 693. Setting Case for Submission reply will be filed in the Court of Criminal Appeals since the petition is also filed in the Court of Criminal Appeals. If discretionary review is granted, either on the petition of a party or by the Court on its own initiative, the case will be set for submission. 68.10. Amendment 693. Improvident Grant of Review Upon motion the petition or a reply may be amended or supplemented at any time justice requires. If, after granting discretionary review, five judges are of the opinion that discretionary review should not have been Notes and Comments granted, the case will be dismissed. Comment to 2011 change: This Rule is changed to reflect 69.4. Clerk's Duties the filing of the petition and any reply in the Court of Criminal Appeals. Thus, the rule is also changed to require a motion and (a) On Refusal or Dismissal. When the Court refuses or to delete a time frame because the petition will be filed in the dismisses a petition, the clerk will send to the parties Court of Criminal Appeals. and the State Prosecuting Attorney a notice informing them that the petition was refused or 68.11. Service on State Prosecuting Attorney dismissed. The clerk will retain the petition and all other items filed in the case for at least 15 days from In addition to the service required by Rule 93, the date of the refusal or dismissal. At the end of that service of the petition, the reply, and any amendment or time, if no motion for rehearing has been timely supplementation of a petition or reply must be made on the filed, or upon the overruling or dismissal of such a State Prosecuting Attorney. motion, the clerk will send to the court of appeals clerk a certified copy of the order refusing or Notes and Comments dismissing the petition (as well as any order overruling a motion for rehearing). The clerk of the Comment to 1997 change: This is former Rule 202. Court of Criminal Appeals will return the appellate Subdivisions (k) and (1) of the former rule have been relocated to record to the court of appeals clerk but will retain the Rule 69. The new rule limits the length of a petition and reply. petition, and other documents filed in the Court of The time for amendment of a petition or reply is increased to Criminal Appeals. conform with the amendment in Rule 50. The rule is otherwise amended without substantive change. (b) On Granting Review. If the Court grants discretionary review, the clerk will send to the Comment to 2002 change: The original catchline of parties and the State Prosecuting Attorney a notice subdivision 68.4(g) was "Reasons for Review," which caused informing them that discretionary review was confusion because of its similarity to the catchline in subdivision granted 663 ("Reasons for Granting Review"). It is changed to "Argument" Notes and Comments

74 TEXAS RULES OF APPELLATE PROCEDURE Page7S

Comment to 1997 change: This is former subdivisions (k) 713. Briefs and (1) of Rule 202. Internal procedures of the Court are deleted. Provisions are added in 69.4(a) and (b) for the clerk to Briefs in a direct appeal should be prepared and filed in send notice of the granting, refusal, or dismissal of a petition for accordance with Rule 38, except that the brief need not contain discretionary review. Other nonsubstantive changes are made. an appendix (Rule 38. l(k)). All briefs must be filed in the Court of Criminal Appeals. The brief must include a short statement of why oral argument would be helpful, or a statement mat oral Role 70. Brief on the Merits argument is waived.

70.1. Initial Brief 71.4. Additional Briefs

If review is granted, the petitioner—or, if there was no Upon motion by a party the Court may permit the filing petition, the party who lost in the court of appeals—must file a of additional briefs other than those provided for in Rule 38. brief within 30 days after review is granted. Notes and Comments 703. Respondent's Brief Comment to 1997 change: This is former Rule 210. The The opposing party must file a brief within 30 days after rule is extended to all direct appeals. A page limit is added for the petitioners brief is filed. death penalty cases. Other nonsubstantive changes are made.

703. Brief Contents and Form Comment to 2002 change: A requirement that briefs include a statement regarding oral argument is added. Briefs must comply with the requirements of Rules 9 and 38, except that they need not contain -the appendix (Rule 38. l(k)). Copies must be served as required by Rule 68.11. Rule 72. Extraordinary Matters

70.4. Other Briefs 72.1. Leave to Hie

The Court of Criminal Appeals may direct that a party file A motion for leave to file must accompany an original a brief, or an additional brief, in a particular case. Additionally, petition for writ of habeas corpus, mandamus, procedendo, upon motion by a party the Court may permit the filing of prohibition, certiorari, or other extraordinary writ, or any other additional briefs. motion not otherwise provided for in these rules.

Notes and Comments 723. Disposition

Comment to 1997 change: This is former Rule 203. The If five judges tentatively believe that the case should be rule is amended without substantive change. filed and set for submission, the motion for leave will be granted and the case will then be handled and disposed of in accordance with Rule 52.7. If the motion for leave is denied, no motions for Rule 71. Direct Appeals rehearing or reconsideration will be entertained. But die Court may, on its own initiative, reconsider a denial of a motion for 71.1. Direct Appeal leave.

Cases in which the death penalty has been assessed under Notes and Comments Code of Criminal Procedure article 37.071, and cases in which bail has been denied in non-capital cases under Article I, Section Comment to 1997 change: This is former Rule 211. The 1 la of the Constitution, are appealed directly to the Court of rule is amended to include all the Court's jurisdiction of Criminal Appeals. extraordinary matters. Internal procedures of the Court are deleted. Other nonsubstantive changes are made. 71.2. Record

The appellate record should be prepared and filed in Rule 73. Postconviction Applications for accordance with Rules 31,32, 34, 35 and 37, except that the Writs of Habeas Corpus record must be filed in the Court of Criminal Appeals. After disposition of the appeal, the Court may discard copies of juror 73.1. Form for Application Filed Under Article 11.07 of the information cards or other portions of the clerk's record that are Code of Criminal Procedure not relevant to an issue on appeal.

75 No.

In the COURT OF CRIMINAL APPEALS

On Appeal from the 264th Judicial District Court of Bell County, Texas Cause Number 67109; and the Opinion of the Third Court of Appeals in Cause Number 03-14-00381-CR, Delivered June 24,2015

ERIC ALAN MOORE, JR. v. THE STATE OF TEXAS

MOTION FOR EXTENSION OF TIME TO FILE PRO SE PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

COMES NOW, Kristen Jernigan, the undersigned attorney of record for Eric

Alan Moore, Jr., the Appellant, herein, and files this Motion for Extension of Time

to File Pro Se Petition for Discretionary Review. As set out below, the undersigned

respectfully requests a sixty-day extension so that Appellant can file his Pro Se

Petition for Discretionary Review. In support of said motion, the undersigned

would show the Court the following:

1. Appellant's Petition for Discretionary Review is currently due in this case on July 24,2015. 2. Appellant seeks an extension of sixty days in which to file his Petition for Discretionary Review, making his Petition due on or before September 22, 2015.

3. The undersigned counsel will not be representing Appellant after the filing of this motion. Appellant will now have to obtain and review the record in order to prepare and file a Pro Se Petition for Discretionary Review. The undersigned believes that there is insufficient time between now and July 24,2015, to accomplish those goals. Consequently, the undersigned respectfully requests that the Court grant Appellant the additional time.

4. The undersigned has not filed any previous motions for extension of time in this case.

5. For the reasons set forth above, the undersigned respectfully requests that Appellant be granted an extension of sixty days so that his brief in this case will now be due on September 22,2015.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the undersigned

respectfully requests that this Court grant this Motion for Extension of Time to File

Pro Se Petition for Discretionary Review.

Respectfully submitted,

/s/ Kristen Jernigan KRISTEN JERNIGAN State Bar Number 90001898 207 S. Austin Ave. Georgetown, Texas 78626 (512)904-0123 (512) 931-3650 (fax) Kristen@txcrimapp.com CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant's Motion for Extension of Time has been mailed to the Bell

County District Attorney's Office, 1200 Huey Road, Belton, Texas 76513, on May

15,2015.

/s/ Kristen Jernigan Kristen Jernigan