Sherill Ann Small v. State

Opinion

ACCEPTED 14-15-00039-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/13/2015 8:11:37 PM CHRISTOPHER PRINE CLERK

CAUSE NO. 14-15-00039-CR

_________________________________________________ FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 7/13/2015 8:11:37 PM FOR THE FOURTEENTH DISTRICT OF TEXAS CHRISTOPHER A. PRINE HOUSTON DIVISION Clerk _________________________________________________

SHERILL ANN SMALL § § v. § § STATE OF TEXAS §

_______________________________________________

APPELLANT’S MOTION TO SUSPEND RULE REGARDING WORD LIMITS _______________________________________________

Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

Appellant’s Motion to Suspend Rule Regarding Word Limits Page 1 Small v. State; Cause No. 14-15-00039-CR TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant, SHERILL ANN SMALL, who files this Motion

to Suspend Rule Regarding Word Limits, and shows unto the Court as follows:

I.

1. This is a capital murder appeal in which the death penalty was not

imposed.

2. For such an appeal, Texas Rule of Appellate Procedure 9.4(i)(2)(B)

provides a limit of 15,000 words for a computer-generated brief and response in an

appellate court.

3. Appellant’s brief after editing contains 16,908 words, of those that

count under the rule.

4. One of the errors Appellant alleges pertains to the exclusion/limitation

of evidence. In such a case, the reviewing court is required to examine the record

as a whole to assess harm. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.

2011).

5. The reporter’s record in this case is itself twenty-three volumes long,

necessitating an unusually lengthy statement of facts, which nonetheless may still

be lacking.

6. Under Texas Rule of Appellate Procedure 2, the Court may suspend

Appellant’s Motion to Suspend Rule Regarding Word Limits Page 2 Small v. State; Cause No. 14-15-00039-CR the operation of a rule in a particular case and order a different procedure.

7. Therefore, in light of the lengthy record and the mandate from the

Court of Criminal Appeals to consider the entire record in assessing harm,

Appellant asks this Court to suspend the operation of Rule 9.2(i)(2)(B) in this case

and accept Appellant’s brief as is. Tex. R. App. P. 9.2.

8. In the alternative, Appellant asks this Court to allow Appellant leave

to edit her brief further to bring it into compliance with Rule 9.4(i)(2)(B).

II.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

accept Appellant’s brief as is, or to allow Appellant a reasonably time to bring her

brief in compliance with Rule 9.4(i)(2)(B).

Appellant’s Motion to Suspend Rule Regarding Word Limits Page 3 Small v. State; Cause No. 14-15-00039-CR Respectfully submitted:

/s/ Justin Bradford Smith Justin Bradford Smith Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com

Appellant’s Motion to Suspend Rule Regarding Word Limits Page 4 Small v. State; Cause No. 14-15-00039-CR CERTIFICATE OF SERVICE

I hereby certify that, on July 13, 2015, a true and correct copy of the

Appellant’s Motion to Suspend Rule Regarding Word Limits was provided to

counsel below:

W.W. Torrey Milam County District Attorney’s Office 204 N. Central Cameron, Texas 76520 Email: daoffice@milamcounty.net Attorneys for the State

Craig W. Cosper Assistant Attorney General and Assistant District Attorney P.O. Box 12548 Austin, Texas 78711-2548 Telephone: 512-936-1400; Facsimile: 512-936-1280 craig.cosper@texasattorneygeneral.gov

/s/ Justin Bradford Smith Justin Bradford Smith

Appellant’s Motion to Suspend Rule Regarding Word Limits Page 5 Small v. State; Cause No. 14-15-00039-CR