Michael W. Carpenter v. Wesley Mau

• Court: Court of Appeals of Texas
• Decided: March 27, 2015
• Docket: 03-13-00075-CV
• Status: Published

Opinion

ACCEPTED 03-13-00075-CV 4671417 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/27/2015 12:00:15 PM JEFFREY D. KYLE CLERK NO. 03-13-00075-CV

FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 3/27/2015 12:00:15 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk

MICHAEL W. CARPENTER, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from the 274th District Court of Hays County, Texas Trial Court Cause No. 11-1960 The Honorable Bert Richardson, Judge Presiding

MOTION TO SUBSTITUTE COUNSEL AND MOTION FOR LEAVE TO FILE UNTIMELY APPELLEE’S BRIEF

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Now comes Appellee, the State of Texas, and files this Motion for Leave to

File an Untimely Appellee’s Brief, and in support states the following:

1. Appellee’s Brief was due on April 12, 2013. Attorney for Appellee,

Mark Zuniga, was sent a Notice of Late Brief on or about April 24, 2013.

1 2. Attorney for Appellee, Mark Zuniga, is no longer employed by Hays

County. Although he was still employed by Hays County at the time Appellee’s

Brief was due, and at the time the Notice of Late Brief was sent, it appears that Mr.

Zuniga did not file a Brief.

3. During the pendency of this appeal, Appellee, Wes Mau, sued in his

capacity as an Assistant District Attorney for Hays County, Texas - representing

the State of Texas, was employed at the Attorney General’s Office for the State of

Texas. However, at or about the time Mr. Zuniga failed to file Appellee’s Brief,

Mr. Mau had announced his candidacy for the office of Criminal District Attorney

for Hays County. It appears that, despite direction to proceed from the then-

incumbent Criminal District Attorney, Sherri Tibbe, Mr. Zuniga questioned

whether he should continue to represent Appellee, Mau. Regardless, no Brief was

timely filed for Appellee. Appellee, Mau, has since been elected the Criminal

District Attorney for Hays County, Texas, and currently serves in that post. He

recently discovered that no Brief was filed in the present case and phoned the

undersigned counsel, requesting an untimely filing.

4. This Motion is not sought for delay, but so justice may be served.

2 5. For the foregoing reasons, the undersigned hereby requests leave to

serve as substitute counsel for Appellee and requests leave to untimely file this

Appellee’s Brief pursuant to Texas Rules of Appellate Procedure, Rule 38.6, which

provides for modifications of filing time.

/s/ Mark Kennedy Mark D. Kennedy SBN 24032498 / mark.kennedy@co.hays.tx.us OFFICE OF GENERAL COUNSEL HAYS COUNTY, TEXAS 111 E. San Antonio, Suite 202 San Marcos, Texas 78666 512.393.2219 (telephone) 512.392.6500 (telecopier)

Attorney for Appellee

CERTIFICATE OF CONFERENCE

I certify that I sent a letter by certified U.S. Mail (#7013 1090 0000 1397 5717) on March 27, 2015 to Michael Carpenter, at TDCJ# 1201045, 8 O.B. Ellis Unit, 1697 FM 980, Huntsville, Texas, 77343, to ask about the extension. No response has been received thus far.

/s/ Mark Kennedy Mark D. Kennedy

3 CERTIFICATE OF SERVICE

I hereby certify that, on the 23rd day of March, 2015, I electronically filed (the filing was rejected that day due to having no Certificate of Conference) the foregoing with the Clerk of the Court using the Texas Online eFiling for courts system and sent a true and correct copy of the foregoing to the following individual by certified U.S. Mail (#7011 3500 0000 2472 6604):

Michael Carpenter Appellant - Pro Se TDCJ# 1201045 8 O.B. Ellis Unit 1697 FM 980 Huntsville, Texas 77343