Opinion
05-23-00239-CR 05-23-00240-CR
06-25-2024
DAVID STEVEN LEAKEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2223831-S and F-2223866-S
Before Justices Smith, Miskel, and Breedlove
ORDER
EMILY A. MISKEL, JUSTICE
Before the Court are (1) the State's April 1, 2024 second motion for extension of time to file its brief in appellate cause no. 05-23-00240-CR (trial court cause no. F-2223866-S), and the State's brief which was tendered with the motion and received by the Court on the same date, and (2) the State's May 2, 2024 motion to reconsider this Court's April 26, 2024 order denying the State's second motion for extension of time to file its brief in appellate cause no. 05-23-00239-CR (trial court cause no. F-2223831-S).
The trial judge signed the judgments in these cases on March 8, 2023. Appellant David Steven Leakey filed his notices of appeal in the trial court on March 9, 2023 and in this Court on March 15, 2023. After the clerk's and reporter's records were filed in these cases and after this Court granted him an extension of time, Leakey filed his brief on October 16, 2023. Tex.R.App.P. 38.6(a). The State's brief was due on November 15, 2023. Id. 38.6(b). However, on November 15, 2023, the State filed its first motion for an extension of time to file its brief. Id. 38.6(d). This Court granted the motion and ordered the State's brief to be filed by December 15, 2023, but the State failed to file a brief by that deadline. On March 25, 2024, this Court set the case for submission on April 24, 2024. Id. 39.8.
On April 1, 2024, twenty-three days before the submission of these cases and 107 days (approximately 3.5 months) after the December 15, 2023 extended deadline, the State filed a second motion to extend the deadline to file its brief and tendered a brief with its motion. This Court denied the State's motion with respect to cause no. 05-23-00239-CR on April 26, 2024.
The State argues that, although this Court denied its second motion for extension of time to file its brief as to cause no. 05-23-00239-CR on the basis that it was "untimely" pursuant to Rule 38.6 of the Texas Rules of Appellate Procedure, there is no rule that sets a deadline by which parties may file a motion to extend the time to file a brief. The State concedes that the Court may deny a motion for an extension on the merits but maintains there is nothing that permits it to deny the motion as untimely. The State argues that our sister courts of appeal have the following procedures and local rules relating to extensions for the filing of briefs in criminal appeals:
• the Fourth District Court of Appeals issues orders containing a warning that the case will be set for submission without the State's brief;
• the Second District Court of Appeals sends letters notifying the State that a case will be set for submission without the State's brief if the State does not file its brief by a certain date;
• the Tenth District Court of Appeals provides the State with a warning order notifying it that the case may be decided without the State's brief and warning that the failure to file a brief may result in a concession of error under its jurisprudence; and
• the Fourteenth District Court of Appeals grants extensions to file briefs beyond the submission date.
The State also points out that this Court previously had the following local rules:
• In 1999, it adopted local rule 6, which stated that it would not accept an appellee's brief in a criminal case tendered more than 10 days after the date of the letter notifying the parties that the case was set for submission.
• In 2002, local rule 6 was amended to change the deadline from 10 days to 28 days after it issued a submission-notice letter.
• In 2012, it adopted a new set of local rules that eliminated the local rule governing the filing of appellee's brief.
The deadlines under the appellate rules are clear. The State is not required to file a brief but, if it should choose to do so, the application of the briefing rules should encourage fairness to the parties. If the motion is granted, this late filing would in effect either (1) preclude Leakey from having the ability to file a reply brief before submission of the case, or (2) necessitate the postponement of submission in order to allow Leakey 20 days to file his reply brief. See id. 38.6(c)-(d).
Rule 1.01(b) of the Texas Rules of Professional Conduct provides that a lawyer shall not neglect a legal matter entrusted to the lawyer. Tex. R. Prof. Conduct 1.01(b)(1). "Neglect" signifies an inattentiveness involving a conscious disregard for the responsibilities owed to a client. Id. 1.01(c). As comment 7 states, "Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests can be adversely affected by the passage of time or the change of conditions." Id. 1.01 cmt. 7.
Also, as a criminal appeal, these cases involve the restriction of a person's liberty which is not a trivial matter. See generally, Shumate v. State, 649 S.W.3d 240, 244 (Tex. App.-Dallas 2021, no pet.). In these cases, Leakey's punishment was assessed at 15 years of imprisonment for the aggravated-assault offence (appellate cause no. 05-23-00239-CR) and 10 years of imprisonment for the harassment-of-a-public-servant offense (appellate cause no. 05-23-00240-CR) and approximately 14 months had already passed from the time the judgments were signed to the time the appeals were submitted. To postpone the submission date to further accommodate the State would be unfair to Leakey.
The Court DENIES the State's April 1, 2024 second motion for extension of time to file its brief in appellate cause no. 05-23-00240-CR.
The Court also DENIES the State's May 2, 2024 motion to reconsider this Court's April 26, 2024 order denying the State's second motion for extension of time to file its brief in appellate cause no. 05-23-00239-CR.