Kenneth Allen Goetz v. State

Opinion

ACCEPTED 04-15-00284-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/24/2015 3:34:18 PM KEITH HOTTLE CLERK

IN THE TEXAS COURT OF APPEALS FOR THE FOURTH APPELLATE DISTRICT FILED IN 4th COURT OF APPEALS KENNETH ALLEN GOETZ, § SAN ANTONIO, TEXAS Appellant § 08/24/15 3:34:18 PM § KEITH E. HOTTLE v. § No. 04-15-00284-CR Clerk § THE STATE OF TEXAS, § Appellee. §

SECOND AMENDED UNOPPOSED THIRD MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S (ANDERS1) BRIEF

TO THE HONORABLE FOURTH COURT OF APPEALS:

Counsel for Appellant Kenneth Allen Goetz, herein files this Second

Amended Unopposed Third Motion for Extension to File Appellant’s

(Anders) Brief, for the following good cause:

1. Counsel filed a recent First Amended Second Motion to Extend

Time to file Appellant’s Anders Brief, (“First Amended Motion”). This

Court has yet to rule on Appellant’s First Amended Motion.

2. Prior to expiration of the filing due date as requested in the First

Amended Motion and while conducting a final review of the record in

relation to the Brief, counsel noticed for the first time and became concerned

with a previously unnoticed defect in the record potentially creating a

question of whether this Court of Appeals has jurisdiction in this cause.

1 Anders v. California, 386 U.S. 738 (1967).

1 Specifically, on May 7, 2015, the Bexar County District Clerk filed

with this Court of Appeals, its “Certificate of Notice of Appeal to the Fourth

Court of Appeals” (“Clerk’s Certificate”) where the clerk checks the

underlying basis of a defendant’s appeal in item #7 which sets forth several

categories concerning how the “trial” was held. See 1 CR 60 In Mr. Goetz’s

case, rather than the clerk putting an “X” next to category, “Motion to

Revoke Community Supervision,” the clerk put an “X” next to “Plea of

Guilt/Nolo Contendere to the court – negotiated plea agreement followed by

the court.” 1 CR 60 As applied, assessment of the basis of Goetz’s appeal

(the notice of appeal was general in nature) determines the jurisdictional

viability of such appeal. See Tex. C. Crim. Proc. arts. 42.12 §5, 44.02, &

Tex. R. App. Proc. 25.2(a)(2). Under the Clerk’s Certificate, the basis

appears to be a plea bargained case in which appeal would be permitted only

if the trial court gave permission or if motions had been filed and ruled upon.

See Tex. R. App. Proc. 25.2(a)(2). Since the record does not reflect either

permission by the trial court to appeal or that any motion were filed,

acceptance of the basis of the appeal as certified by the district clerk would

create confusion and potentially result in dismissal of Goetz’s appeal.

3. By contrast, the “Trial Court’s Certification of Defendant’s

Rights of Appeal” dated April 2, 2015, (“Trial Court’s Certification”) does

2 reflect that the proceeding from which Goetz seeks to appeal “is an

adjudication of guilt following a deferred adjudication, and defendant has a

limited right of appeal.” 1 CR 55

6. Counsel’s intention was to file a motion asking for abatement

of the due date for Appellant’s Brief until the defect in the record could be

corrected under Tex. R. App. Proc. 37.1-2, however after due consideration,

counsel elected to file Appellant’s Brief and Motion to Withdraw and by this

document call attention t the defect for this Court’s consideration rather than

delay the proceedings further.

The day before noticing the referenced defect, counsel was still

experiencing problems with his computer and conferred with opposing

counsel who did not oppose a brief extension.

Given the foregoing basis shown above, that this Court has yet to rule

on counsel’s prior First Amended Third Unopposed Motion for Extension of

Time to File Appellant’s brief, and that Appellant’s (Anders) Brief as well as

counsel’s Motion to Withdraw have been filed on August 21, 2015, counsel

respectfully requests this Court grant an Extension of Time to file

Appellant’s Brief until August 21, 2015.

This motion is not filed for purposes of delay but that justice be done.

3 Respectfully submitted,

LAW OFFICES OF ANTHONY M. SMITH

By:__/s/Anthony Martin Smith Anthony Martin Smith SBN#18649425 3401 Broadway, No. 90391 San Antonio, TX 78209 210-281-9000: T 210-247-6176: F Counsel for Appellant

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties which are listed below on August 24, 2015 as follows: Appellee’ counsel, Rico Valdez, Assistant Criminal District Attorney, 300 Dolorosa, Ste. 5030 by FAX: 210- 335-0784.

_/s/ Anthony Martin Smith_