Willie Davis Spencer v. State

• Court: Court of Appeals of Texas
• Decided: January 17, 2019
• Docket: 05-18-01197-CR
• Status: Published

Opinion

Order entered January 17, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01197-CR

WILLIE DAVIS SPENCER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F90-35572-H

ORDER

Appellant’s counsel has moved this court to extend the time to file the opening brief in

this case, counsel’s second such motion in these cases. That same day, January 14, 2019, counsel

filed substantially similar motions in four other appeals.

Specifically, the motion includes a paragraph discussing counsel’s recent completion of a

paper for a continuing legal education presentation. Counsel has given insufficient basis for this

to be the primary reason for his failure to complete the appellant’s brief. Preparing for a

continuing legal education presentation, while laudable, should not preempt a lawyer’s

preparation of work due to the court. See Tex. Disciplinary Rules Prof’l Cond. R. 3.02, cmt. 3.

And the rest of the motion gives scant basis for granting the extension. In this, and in

each of the four other motions for extension of time filed January 14, 2019, counsel cites the other four cases as part of the basis for his extension requests. This provides no basis on which to

grant the extension in this case.

Counsel cites two cases outside of the five with pending motions for extension to justify

the extension request. In the first, counsel represents he is preparing a motion for panel rehearing

due on first extension January 18, 2019. But two of the three panel members who decided that

case have departed this court, and counsel’s motion for panel rehearing “must be denied.” See

Tex. R. App. P. 49.3. This provides insufficient basis for extending the time in this case.

In the second, counsel represents he is “co-counsel” in a capital murder appeal, number

05-18-00865-CR. The case is a “mini-cap,” a death-penalty-eligible case in which the State did

not seek the death penalty. The entire trial and sentencing record in that case, at 120 pages, is

shorter than the voir dire, which is 139 pages long. Counsel provides no explanation why his

work as co-counsel on that appeal justifies the extension here and thus this provides insufficient

basis for granting counsel’s requested extension in this case.

Finally, in his prayer, counsel cites rule 68.2(a), which sets forth the considerations in

determining the due date for a petition for discretionary review to the Court of Criminal Appeals.

This rule is inapplicable here.

The court GRANTS the motion in this case based on counsel’s representation that he has

spent significant time preparing briefing in Cortney Woods v. State, No. 05-18-00444-CR, that

he has identified and articulated specific issues in that case, that the brief in that case “should be”

completed and filed on January 19, 2019, and that this is counsel’s second request for extension

in this case. Work on a single appeal alone will not ordinarily satisfy rule 10.5(b)(1)(C)’s

reasonableness inquiry. The Court ORDERS Appellant’s brief in this case due March 1, 2019.1

/s/ CORY L. CARLYLE JUSTICE

1 Counsel initially misstated the current due date of the brief in this case, which is February 1, 2019.