PD-1016-15 PD-1016-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/6/2015 10:32:15 PM Accepted 8/11/2015 1:16:53 PM ABEL ACOSTA CLERK
COURT OF CRIMINAL APPEALS
PD- -15
Ex Parte Julie Ann VonTungeln On Discretionary Review from No.10-14-00329-CR Tenth Court of Appeals, Waco On Appeal From No. F43117-A 18th District Court, Johnson County
Motion to Extend Time to File Petition for Discretionary Review Kristin R. Brown 18208 Preston Road Dallas, Texas 75252 Phone: 214-446-3909 Fax: 214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458
Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone: 972-795-2401 Fax: 972-692-6636 michael@_mowlalaw.com Texas Bar No. 24048680
Attorneys for Appellant
August 11, 2015 To the Honorable Justices of the Court of Criminal Appeals:
Appellant Julie VonTungeln moves for an extension of time of 30 days to
file a petition for discretionary review:
l. On August 6, 2015, in Ex Parle Julie Von Tungeln, 10-14-00329-CR,
2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (memorandum
opinion) the Court of Appeals affirmed the 18th District Court's denial of
Appellant's Application for Writ of Habeas Corpus under 11.072. See attached.
2. The petition for discretionary review is due September 5, 2015.
3. For good cause, Appellant asks for an extension of 30 days, until
October S, 2015, to file the petition for discretionary review.
4. No previous extension to file the petition for discretionary review has
been filed.
5. Appellant relies on the following facts as good cause for the requested
extension: undersigned counsel Kristin R. Brown just completed an Appellant's
Brief in Ryder v. State, 07-15-00003-CR, Seventh Court of Appeals.
6. Further, Ms. Brown has the following briefs, petitions for
discretionary review, or other pleadings due soon:
• Appellant's Brief in Jessica Boyett v. State of Texas, 6th Court of Appeals, due September 8, 2015.
2 • Appellant's Brief in James Kirvin v. State of Texas, 5th Court of Appeals, due August 16, 2015
• Appellant's Brief in Cathy Lea Bates v. State of Texas, 5th Court of Appeals, due August 29, 2015.
• Appellant's Brief in David Fothergill v. State of Texas, 5th Court of Appeals, due August 28, 2015.
• Appellant's Brief in David Wayne Cahill v. State of Texas, 5th Court of Appeals, due September 13, 2015.
• Ex Parte Michael Ca"oll, 3-15-cv- , a federal writ under 28 USC 2255, Northern District of Texas, due on October 29, 2015.
7. In addition, Ms. Brown is preparing for oral arguments in Robert
James Gray v. State of Texas (murder) and Jeffery Lynn Aday v. State of Texas,
both in front of the Fifth District Court of Appeals on September 23, 2015, and
October 14, 2015, respectively.
8. Finally, Ms. Brown will also be out-of-state at continuing legal
education in Wyoming from August 21, 2015 to September 3, 2015.
9. Mowla has the following briefs, petitions for discretionary review, or
other pleadings due soon:
• Collins v. State, 08-15-00103 (murder case), appellant's brief due on August 10, 2015 in the Eighth Court of Appeals
• Jackson v. State, 05-15-00414-CR, appellant's brief due on August 10, 2015 in the Fifth Court of Appeals
3 • Hernandez v. State, I 0-14-00302-CR, reply brief due on August I 0, 2015 in the Tenth Court of Appeals
• Zimmerman v. Harris, 15-50424, appellant's brief due on August 20, 2015 in the Fifth Circuit
• Burks v. Price, 15-40799, appellant's brief due on August 25, 2015 in the Fifth Circuit
• Munoz v. State, 05-15-00158-CR, appellant's brief due on September 12, 2015 in the Fifth Court of Appeals
IO.In addition, Mow la continues work on a federal habeas corpus death
penalty case, Jones v. Stephens, 4:05-CV-638-Y.
I I .And, Mowla was recently appointed on a federal death penalty habeas
case in Green v. Director, 3: I 5-cv-02197-M-BH.
12.Further, Mowla also continues work on a state habeas corpus death
penalty case, Ex parte Thomas, F86-85539, in the 194•h Judicial District Court.
This case is in its investigation stage and requires considerable amount of time.
13.Finally, Mowla continues work on several habeas cases involving the
underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).
14.This Motion is not filed for purposes of delay, but so that justice may
be served.
4 Prayer
Appellant prays that this motion for extension of time to file the PDR be
granted.
Respectfully submitted,
The Law Office of Kristin R. Brown, PLLC 18208 Preston Road Dallas, Texas 75252 Phone:214-446-3909 Fax:214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458 Attorney for Appellant
/s/ Kristin R. Brown By: Kristm R. Brown
Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone:972-795-2401 Fax:972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant
/s/ Michael Mowla By: Michael Mowla
5 Certificate of Service
I certify that on August 6, 2015, a true and correct copy of this document was served on David Vernon of the Johnson County District Attorney's Office, Appellate Division, by email to davidv@johnsoncountv.tx.org. and on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11 (2015).
6 No Shepard's Signal™ As of: August 6, 2015 I 0:42 PM EDT
Ex oarte Tungeln Court of Appeals of Texas, Tenth District August 6, 2015, Opinion Filed No. 10-14-00329-CR
Reporter 2015 Tex. App. LEXIS 8247
EX PARTE JULIE ANN VON TUNGELN Registration of Informal Marriage, seeTEX. FAM. CODEANN. §§ 2.../01, 2.-102 (West 2006), but they had it Notice: Decision text below is the first available text from immediately annulled when they learned that Alsobrook's the court: it has not been editorially reviewed by LexisNexis. divorce was not final. Alsobrook, like Appellant, was also Publisher's editorial review, including Headnotes, Case on felony community supervision.Ion June 19, 2013, [*2] Summary, Shepard's analysis or any amendments will be the State filed its First Amended Motion to Proceed with an added in accordance with LexisNexis editorial guidelines. Adjudication of Guilt; it alleged in part that Appellant violated Core Terms Condition 3, "to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook, who has an extensive community supervision, probation, pet, trial court, parte, criminal history and is currently on felony probation for Probationers, terms and conditions, conditions, rights Family
Violence in Dallas County, Texas."2After Appellant agreed Opinion to two weeks in jail as a condition of probation for the alleged violations, the State withdrew its motion to [*l] From the 18th District Court Johnson County, Texas adjudicate. Trial Court No. F43117-A On August 27, 2013, and again without the trial court's MEMORANDUM OPINION approval,3Appellant and Alsobrook filed a second Formal In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to Declaration and Registration of Informal Marriage.
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PD-1016-15 PD-1016-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/6/2015 10:32:15 PM Accepted 8/11/2015 1:16:53 PM ABEL ACOSTA CLERK
COURT OF CRIMINAL APPEALS
PD- -15
Ex Parte Julie Ann VonTungeln On Discretionary Review from No.10-14-00329-CR Tenth Court of Appeals, Waco On Appeal From No. F43117-A 18th District Court, Johnson County
Motion to Extend Time to File Petition for Discretionary Review Kristin R. Brown 18208 Preston Road Dallas, Texas 75252 Phone: 214-446-3909 Fax: 214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458
Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone: 972-795-2401 Fax: 972-692-6636 michael@_mowlalaw.com Texas Bar No. 24048680
Attorneys for Appellant
August 11, 2015 To the Honorable Justices of the Court of Criminal Appeals:
Appellant Julie VonTungeln moves for an extension of time of 30 days to
file a petition for discretionary review:
l. On August 6, 2015, in Ex Parle Julie Von Tungeln, 10-14-00329-CR,
2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (memorandum
opinion) the Court of Appeals affirmed the 18th District Court's denial of
Appellant's Application for Writ of Habeas Corpus under 11.072. See attached.
2. The petition for discretionary review is due September 5, 2015.
3. For good cause, Appellant asks for an extension of 30 days, until
October S, 2015, to file the petition for discretionary review.
4. No previous extension to file the petition for discretionary review has
been filed.
5. Appellant relies on the following facts as good cause for the requested
extension: undersigned counsel Kristin R. Brown just completed an Appellant's
Brief in Ryder v. State, 07-15-00003-CR, Seventh Court of Appeals.
6. Further, Ms. Brown has the following briefs, petitions for
discretionary review, or other pleadings due soon:
• Appellant's Brief in Jessica Boyett v. State of Texas, 6th Court of Appeals, due September 8, 2015.
2 • Appellant's Brief in James Kirvin v. State of Texas, 5th Court of Appeals, due August 16, 2015
• Appellant's Brief in Cathy Lea Bates v. State of Texas, 5th Court of Appeals, due August 29, 2015.
• Appellant's Brief in David Fothergill v. State of Texas, 5th Court of Appeals, due August 28, 2015.
• Appellant's Brief in David Wayne Cahill v. State of Texas, 5th Court of Appeals, due September 13, 2015.
• Ex Parte Michael Ca"oll, 3-15-cv- , a federal writ under 28 USC 2255, Northern District of Texas, due on October 29, 2015.
7. In addition, Ms. Brown is preparing for oral arguments in Robert
James Gray v. State of Texas (murder) and Jeffery Lynn Aday v. State of Texas,
both in front of the Fifth District Court of Appeals on September 23, 2015, and
October 14, 2015, respectively.
8. Finally, Ms. Brown will also be out-of-state at continuing legal
education in Wyoming from August 21, 2015 to September 3, 2015.
9. Mowla has the following briefs, petitions for discretionary review, or
other pleadings due soon:
• Collins v. State, 08-15-00103 (murder case), appellant's brief due on August 10, 2015 in the Eighth Court of Appeals
• Jackson v. State, 05-15-00414-CR, appellant's brief due on August 10, 2015 in the Fifth Court of Appeals
3 • Hernandez v. State, I 0-14-00302-CR, reply brief due on August I 0, 2015 in the Tenth Court of Appeals
• Zimmerman v. Harris, 15-50424, appellant's brief due on August 20, 2015 in the Fifth Circuit
• Burks v. Price, 15-40799, appellant's brief due on August 25, 2015 in the Fifth Circuit
• Munoz v. State, 05-15-00158-CR, appellant's brief due on September 12, 2015 in the Fifth Court of Appeals
IO.In addition, Mow la continues work on a federal habeas corpus death
penalty case, Jones v. Stephens, 4:05-CV-638-Y.
I I .And, Mowla was recently appointed on a federal death penalty habeas
case in Green v. Director, 3: I 5-cv-02197-M-BH.
12.Further, Mowla also continues work on a state habeas corpus death
penalty case, Ex parte Thomas, F86-85539, in the 194•h Judicial District Court.
This case is in its investigation stage and requires considerable amount of time.
13.Finally, Mowla continues work on several habeas cases involving the
underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).
14.This Motion is not filed for purposes of delay, but so that justice may
be served.
4 Prayer
Appellant prays that this motion for extension of time to file the PDR be
granted.
Respectfully submitted,
The Law Office of Kristin R. Brown, PLLC 18208 Preston Road Dallas, Texas 75252 Phone:214-446-3909 Fax:214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458 Attorney for Appellant
/s/ Kristin R. Brown By: Kristm R. Brown
Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone:972-795-2401 Fax:972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant
/s/ Michael Mowla By: Michael Mowla
5 Certificate of Service
I certify that on August 6, 2015, a true and correct copy of this document was served on David Vernon of the Johnson County District Attorney's Office, Appellate Division, by email to davidv@johnsoncountv.tx.org. and on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11 (2015).
6 No Shepard's Signal™ As of: August 6, 2015 I 0:42 PM EDT
Ex oarte Tungeln Court of Appeals of Texas, Tenth District August 6, 2015, Opinion Filed No. 10-14-00329-CR
Reporter 2015 Tex. App. LEXIS 8247
EX PARTE JULIE ANN VON TUNGELN Registration of Informal Marriage, seeTEX. FAM. CODEANN. §§ 2.../01, 2.-102 (West 2006), but they had it Notice: Decision text below is the first available text from immediately annulled when they learned that Alsobrook's the court: it has not been editorially reviewed by LexisNexis. divorce was not final. Alsobrook, like Appellant, was also Publisher's editorial review, including Headnotes, Case on felony community supervision.Ion June 19, 2013, [*2] Summary, Shepard's analysis or any amendments will be the State filed its First Amended Motion to Proceed with an added in accordance with LexisNexis editorial guidelines. Adjudication of Guilt; it alleged in part that Appellant violated Core Terms Condition 3, "to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook, who has an extensive community supervision, probation, pet, trial court, parte, criminal history and is currently on felony probation for Probationers, terms and conditions, conditions, rights Family
Violence in Dallas County, Texas."2After Appellant agreed Opinion to two weeks in jail as a condition of probation for the alleged violations, the State withdrew its motion to [*l] From the 18th District Court Johnson County, Texas adjudicate. Trial Court No. F43117-A On August 27, 2013, and again without the trial court's MEMORANDUM OPINION approval,3Appellant and Alsobrook filed a second Formal In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to Declaration and Registration of Informal Marriage. After filing several unsuccessful motions to modify her community two counts of sexual assault of a child under a plea bargain supervision terms and conditions so that she could associate that included the following terms: ten years' deferred with Alsobrook, Appellant filed the instant habeas application adjudication community supervision, 180 days in county and raised constitutional complaints about Condition 3' s jail with work release, a $2,000 fine, sex-offender terms and application to her spouse. SeeTEX. CODECRIM. PROC. conditions, and standard community supervision terms and ANN. arr. 11.072. § 3
In May of2013, Appellant (without the trial court's approval) I 00 miles without permission; and twice having and Steven Alsobrook filed a Formal Declaration and unsupervised contact with children. Page 2 of 3 2015 Tex. App. LEXIS 8247, *3
3 Appellant filed a motion to modify after the filing of the (3) it forbids or requires conduct that is not reasonably second Declaration. related to the future criminality of the defendant or does not serve the statutory ends of probation. Ex parte Von Tungeln Page 2 Lacv '" State. 875 S. W2d 3. 5
An award of community supervision is not a right, but a parte Alakavi. 102 S. it'.3d 426. 432 .t. A.rm.-Fnrr judge may impose any reasonablecondition that is designed \forth 2003. no pet.) (citing to protect or restore the community, protect or restore the victim, or punish, rehabilitate. or reform the defendant." Griffi11 1·. Wisconsin. 483 U.S. 868. 875. 107 S.Ct. 3164. TEX. CODECRIM. PROC. ANN. art. 42. I 2. § ]](a) (West 3169. 97 L.Ed.2d 709 <1987)). Supp. 2014). One of the statutory conditions that a trial court may include is that the defendant shall: "Avoid [R]ehabilitation is [not] the sole goal of probation. A second persons or places of disreputable or harmful character." primary goal of probation is protecting society. Knights, 534 Id.art. 42.12. § 1](a)(3). This condition is presumptively U.S. at 119, 122 S.Ct. 587; see TEX. CODECRIM. PROC. ANN. art. 42.12 sec. IJ(a) (Vernon Supp. 2008) (stating reasonable. SeeMitclzell '" State. 420 S. W3d 448. 450
(I) it has no relationship to the crime; U.S. at 880, 107 S.Ct. 3164.... Probationers therefore "do not enjoy 'the absolute liberty to which every citizen is (2) it relates to conduct that is not in itself criminal; and entitled, but only ... conditional liberty properly dependent Page 3 of 3 2015 Tex. App. LEXIS 8247, *5
on observation of special [probation] restrictions.' " we cannot say that the trial court erred or abused its Griffin.483 U.S. ar 874. 107 S.Ct. 3164 (quoting Morrissev discretion in denying Appellant's l:Bmm: 408 U.S. 471. 480. 92 S.Ct. 2593. 33 L.Ed.2d 484 f 1972 n"Theserestrictions are meant to assure that the habeas application. See id.at 432-33 (upholding probation serves as a period of genuine rehabilitation and community-supervision conditions that that the community is not harmed by the probationer's being restricted defendant's access to his son and also prevented at large." [*6] Griffin. 483 U.S. at 875. 107 S.Ct. 3164. defendant from living with Townes \: State, 293 S. iV.3d 227. 231
Appellant had the burden of proving facts entitling her to REX D. DAVIS the requested relief. Justice Alakayi. 102 S. lV.3d at 432. The record shows that Appellant twice began relationships Before Chief Justice Gray, Justice Davis, and Justice Scoggins with men with criminal records, that Appellant twice (Chief Justice Gray dissents with a note)* Affirmed "married" Alsobrook without court Opinion delivered and filed August 6, 2015 Do not publish approval (including once while a motion to adjudicate was pending and after having [CR25]
been arrested and released on bond), and that Appellant *(Chief Justice Gray dissents from the opinion and judgment allegedly violated other terms of the Court. A separate opinion will not be issued.)
and conditions. Based on the record, we cannot say that Ex parte Von Tungeln Page 6 Appellant met her burden, and