Jolly Dee Neely v. State

Opinion

ACCEPTED

12-14-00309-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

6/26/2015 4:00:43 PM

CATHY LUSK

CLERK

12-14-00309-CR

JOLLY NEELY § IN THE COURT OF APPEALS § FILED IN vs. § 12th COURT OF APPEALS 12th JUDICIAL DISTRICT

§ TYLER, TEXAS STATE OF TEXAS § TYLER, TEXAS 6/26/2015 4:00:43 PM CATHY S. LUSK

Clerk

MOTION TO RECOPNSIDER

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes James Huggler, Counsel for the Appellant, in the above styled and numbered causes, and would show the Court as follows:

I. Factual and Procedural Background Counsel was appointed to serve as appellate counsel in these matters on October 27, 2014. Counsel filed an Anders brief on April 10, 2105. Anders v. California, 386 U.S. 738 (1967). On May 13, 2015, the Court granted Appellant’s Motion for access to the appellate record. On June 5, 2015, this Court received a letter from the trial court regarding access to the record. Appellant’s pro se Brief is due on July 1, 2015.

II. Grounds for Reconsideration On June 22, 2015, Counsel received a letter from Appellant regarding access to the record. As this Court knows, even though Counsel filed a Brief, he still is counsel of record for Mr. Neely and has continuing obligations to represent him. Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).

On June 5, 2015, a letter was filed by the trial court judge in this case with the Clerk for the Twelfth Court of Appeals. The letter appears to be mailed, not filed electronically, and was not made part of a supplemental record prepared by the Smith County Clerk’s Office. See Brandon Simmons v. State, No. 12-14-00159-CR,

Supplemental Clerk’s Record filed on October 28, 2014.

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On or after June 23, 2015, counsel contacted the Clerk’s Office for the Twelfth Court of Appeals to obtain a copy of the letter filed by the trial court on June 5, 2015. The deputy clerk was unsure as to whether she could provide a copy or not and advised she would contact counsel after she checked, presumably with a justice. The clerk called back that same afternoon and stated that because the trial court judge had not included counsel on the letter, that the Clerk;’s Office would not be able to release a copy of the letter to counsel, and that he could obtain the same from the trial court.

The problem with that thinking is that there is a document, filed in this Court, upon which the justices of this Court relied in setting a briefing date, to which counsel has been denied access.

III. Prayer for Relief

Counsel requests that this Court reconsider the decision made June 23, 2015 denying access to a document relied on by this Court and that he receive a copy of the letter filed by the trial court on June 5, 2015 with the Clerk’s Office for the Twelfth Court of Appeals, and for other such relief as the Court may deem appropriate.

Respectfully submitted,

Law Office of James W. Huggler, Jr.

100 E. Ferguson, Suite 805 Tyler, Texas 75702

Tel: (903) 593-2400

Fax: (903) 593-3830

By: /S/ James W. Huggler, Jr.

James Huggler

State Bar No. 00795437

Attorney for Appellant

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Motion has been delivered to

Michael West, Counsel for the State, and the Appellant, Jolly Neely, at the addresses listed below on this the 26th day of June, 2015 by hand delivery or regular mail or the State of Texas electronic filing system.

/S/ James W. Huggler, Jr.

James Huggler

Michael West Jolly Neely Smith County District Attorney’s Office TDCJ #01967101 100 North Broadway, 4th Floor c/o Smith County Jail Tyler, Texas 75702 206 East Elm Street Tyler, Texas 75702

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