Mark Gordon McMurphy v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 2015
• Docket: 03-15-00246-CR
• Status: Published

Opinion

ACCEPTED 03-15-00246-CR 5979568 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/8/2015 1:10:57 PM JEFFREY D. KYLE CLERK

NO. 03-15-00246-CR FILED IN 3rd COURT OF APPEALS STATE OF TEXAS § IN THE AUSTIN, TEXAS § 7/8/2015 1:10:57 PM vs. § THIRD COURT JEFFREY D. KYLE Clerk § MARK MCMURPHY § OF APPEALS

APPELLANT'S RESPONSE TO OVERDUE BRIEF AND MOTION TO EXTEND TIME TO FILE APPELLANT'S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes Mark McMurphy, Appellant in the above styled and numbered

cause, and moves this Court to grant an extension oftime to file appellant's brief,

pursuant to Rule 38.6 of the Texas Rules of Appellate Procedure, and for good

cause shows the following:

1. This case is on appeal from the District Court of Coma! County,

Texas.

2. The case below was styled the State of Texas vs. Mark McMurphy,

and numbered CR2014-106.

3. Appellant was convicted ofDWI 3rd or more Habitual.

4. Appellant was assessed a sentence of 60 years on January 15, 2015.

5. Notice of appeal was given on April23, 2015.

6. The clerk's record was filed on May 13, 2015. On May 7, 2015 Counsel for Appellate received notification that the

Reporters record was file with the court. On May 12, 2015 Counsel for Appellate

requested a copy of the reporter's record from the District Clerk and was advised

that the clerk did not have it. Counsel for appellate contacted Mary Scopas Court

reporter and was advised that she would send a copy to the District Clerk. On

June 1, 2015 Counsel for Appellate received a notification from this Court that the

Reporters record was overdue and gave a deadline of June 11, 2015 for filing. On

June 4, 2015 Counsel for Appellate received notification from the District Clerk

that the Reporter record had been filed. Counsel for Appellate obtained a copy on

that date. Based upon the above Counsel for Appellate calculated that the due

date for the brief was July 6, 2015 with consideration of the July 4th holiday

weekend. It was and still is the intent of Counsel for Appellate to file for an

extension. On July 1, 2015 Counsel for Appellate received notification from this

court requesting a response to why Appellate's brief was not timely filed on June

12, 2015. I can only respond to the court by stating that the reporters record was

not made available to Counsel until June 4, 2015 and that is the date that was used

by appellate counsel to calculate the briefs due date.

The failure to timely file the Appellate Brief was not the result of conscience

indifference but the result of the inability to obtain the reporters record until June

4, 2015. REQUEST FOR EXTENSION

Appellant requests an extension of time of 45 days from the present date, i.e.

July 8, 2015 to file the Appellate Brief. Counsel has been unable to finish the

brief due to his trial schedule. In addition Counsel for appellate received on June

26, 2015 from the District Clerk additional reporters record exhibits in the form of

a video. Counsel is scheduled to be on vacation from July 9, 2015 through August

3, 2015.

9. No extension to file the brief has been received in this cause.

10. Defendant is currently incarcerated.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court consider his Response to the Late Filing of Brief and further grant this

Motion To Extend Time to File Appellant's Brief, and for such other and further

relief as the Court may deem appropriate.

Respectfully submitted,

Law Offices of Gary F. Churak P.C. 14310 Northbrook Ste. 210 San Antonio, Texas 78232 Tel: (210) 491-4443 Fax: (210~/6

By:. __~~~--------------------­ Gary F. Churak State Bar No. 04245500 churaklaw@msn.com Attorney for Mark McMurphy CERTIFICATE OF SERVICE

This is to certify that on July 8, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Coma!

County.

Gary F. Churak STATE OF TEXAS § § COUNTY OF BEXAR §

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared

Gary F. Churak, who after being duly sworn stated:

"I am the attorney for the appellant in the above numbered and

entitled cause. I have read the foregoing Motion To Extend Time to

File Appellant's Brief and swear that all of the allegations of fact

contained therein are true and correct."

Gary F. Churak Affiant

SUBSCRIBEDANDSWORNTOBEFOREMEon ~-~'1 8 2015, to certify which witness my hand and seal of office.

N~ic, ~