Moore v. State

110 S.W.3d 31, 2002 Tex. App. LEXIS 8333, 2002 WL 31628507

• Court: Court of Appeals of Texas
• Decided: November 21, 2002
• Docket: No. 10-02-076-CR
• Status: Published

Opinion

ORDER

PER CURIAM.

This Court has twice denied motions by the State to file a brief in the above cause exceeding the 50 page limit established by Rule of Appellate Procedure 38.4. Tex. R.App. P. 38.4. Thereafter, the State filed a brief on October 29, 2002 purporting to comply with Rule 38.4. On further review, the Court has determined that the State’s brief does not comply with Rule 38.4.

The State’s brief provides “a more complete statement of facts” in an appendix, which contains twelve pages of “facts relevant to [the issues presented].” Rule 38.1(j)(2) expressly provides, “Items should not be included in the appendix to attempt to avoid the page limits for the brief.” Id 38.1(j)(2).¹

The appellant’s brief presents nine issues in thirty-three pages, excluding the pages containing the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, the issues presented, the signature, and the certificate of service. Id. 38.4. The State is directed to prepare and file an amended brief no longer than fifty pages, excluding the pages containing the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, the issues presented, the signature, the certificate of service, and the appendix, if any. Id 38.4, 38.9(a). The State shall not include items in an appendix to avoid the 50-page limit of Rule 38.4. The State’s brief shall be filed within ten days after the date of this order. No further extensions will be granted. If the State fails to comply, the Court will strike the State’s October 29 brief and submit this cause on the appellant’s brief alone. Id. 38.9(a).

1 . Actually, Rule 38 does not expressly provide for the inclusion of an appendix in a criminal brief. See Tex.R.App. P. 38.1 Q) (providing for "Appendix in Civil Cases”). Such an appendix is often helpful however. Nevertheless, a party who chooses to provide an appendix in a criminal brief must not use the appendix in an effort to avoid the page limits of Rule 38.4.