Nathaniel Frazier, Jr. AKA Nathaniel J. Frazier v. State

Opinion

ACCEPTED

03-14-00655-CR

4606511

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/23/2015 3:44:31 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00655-CR

FILED IN

3rd COURT OF APPEALS

NATHANIEL J. FRAZIER, JR. § IN THE COURT OF APPEALS AUSTIN, TEXAS

§ 3/23/2015 3:44:31 PM VS. § THIRD DISTRICT JEFFREY D. KYLE

§ Clerk STATE OF TEXAS § OF TEXAS

APPELLANT’S SECOND MOTION TO EXTEND TIME TO FILE APPELLANT'S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes NATHANIEL J. FRAZIER, JR. AKA NATHANIEL J.

FRAZIER, Appellant in the above styled and numbered cause, and moves this Court to grant an extension of time 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 391ST Judicial District Court of TOM GREEN County, Texas.

3. The case below was styled the STATE OF TEXAS vs. NATHANIEL J.

FRAZIER, JR. AKA NATHANIEL J. FRAZIER, and numbered D-13-0958-SA.

4. Appellant was convicted of Assault family/house member impede breath/circulation, enhanced to a second degree felony.

5. Appellant was assessed a sentence of Eighteen (18) years confinement in the Institutional Division of the Texas Department of Criminal Justice on July 15, 2014.

6. Notice of appeal was given on October 14, 2014.

7. The clerk's record was filed on November 21, 2014; the reporter's record was filed on November 5, 2014. Counsel for the Appellant initially requested the entire clerk’s record. On January 12, 2015, this Honorable Court sent a letter to the clerk notifying them that the supplemental clerk’s record was late. The original clerk’s record that was filed with this Honorable Court was missing numerous motions, pretrial hearing documents, as well as trial documents, such as the jury charge. Counsel for Appellant again requested the entire clerk’s record, specifically marking items that were not included. The supplemental clerk’s record was filed March 17, 2015.

8. The appellant’s brief is presently due on March 23, 2015.

9. Appellant requests an extension of time of 30 days from the present due date, i.e. April 22, 2015.

10. This will be the second extension to file the brief under this cause.

11. Defendant is currently incarcerated.

12. Appellant relies on the following facts as good cause for the requested extension:

Counsel has been working on two other appeals that have been filed with this Honorable Court within the last two months. One of the appeals was an accelerated appeal that required a tremendous amount of time to adequately research and write.

Further, the reporter’s record for this case is twelve volumes. Counsel has been working through the reporter’s record and has identified several key materials maintained in the District Court Clerk’s file that were not included in the Clerk’s Record, such as motions by the defendant and the jury charge. There is no way that Counsel can proceed with the appeal without these documents. These documents were originally requested with the clerk’s record. Counsel has requested that the clerk’s record be supplemented. Counsel requires additional time to obtain those materials and complete Appellant’s brief, and submits that a thirty (30) day extension would provide sufficient time to obtain the materials and complete the brief in this matter.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court grant this Second Motion To Extend Time to File Appellant's Brief, and for such other and further relief as the Court may deem appropriate.

Respectfully submitted,

Ellis & Mock, PLLC

125 South Irving Street

San Angelo, Texas 76903

Tel: (325) 486-9800

Fax: (325) 482-0565

By: /s/ Justin S. Mock

JUSTIN S. MOCK

State Bar No. 24064155

Justin@ellisandmock.com

Attorney for NATHANIEL J. FRAZIER, JR., AKA NATHANIEL J. FRAZIER

CERTIFICATE OF CONFERENCE This is to certify that on March 20, 2015, I conferred with Mr. Jason Ferguson, Assistant District Attorney, District Attorney's Office, Tom Green County, and he was not opposed to this request.

/s/Justin S. Mock

JUSTIN S. MOCK

CERTIFICATE OF SERVICE

This is to certify that on March 23, 2015, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, Tom Green County, Mr. Jason Ferguson, by facsimile transmission to 325-658-6813.

/s/ Justin S. Mock

JUSTIN S. MOCK

STATE OF TEXAS § §

COUNTY OF TOM GREEN §

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared JUSTIN S. MOCK, 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 Appellant’s Second Motion To Extend Time to File Appellant's Brief and swear that all of the allegations of fact contained therein are true and correct."

/s/ Justin S. Mock

JUSTIN S. MOCK

Affiant

SUBSCRIBED AND SWORN TO BEFORE ME on March_23, 2014, to certify which witness my hand and seal of office.

/s/ Linda Robles

Notary Public, State of Texas