Opinion
05-23-00063-CR
05-15-2024
DAVID GENE PETERSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-00349
Before Justices Reichek, Carlyle, and Miskel
ORDER
EMILY MISKEL, PRESIDING JUSTICE
Before the Court is the State's February 12, 2024, second motion requesting an extension of time to file its brief. The State's brief was tendered with its motion and received by the Court on February 12, 2024.
The trial court signed its judgment in this case on October 13, 2022. Appellant David Gene Peterson filed his notice of appeal in the trial court on January 18, 2023, and in this Court on January 19, 2023, which was considered timely filed when this Court granted his motion for an extension of time to file his notice of appeal. After the clerk's and reporter's records were filed in this case, Peterson filed his brief on May 10, 2023. TEX. R. APP. P. 38.6(a). The State's brief was due on June 9, 2023. Id. 38.6(b). However, on June 6, 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 July 9, 2023, but the State failed to file a brief by that deadline. On December 14, 2023, this Court set the case for submission on February 13, 2024. Id. 39.8.
The day before submission of the case and 218 days (approximately 7 months) after the July 9, 2023 extended deadline, the State filed a second motion to extend the deadline to file its brief and tendered a brief with that motion. In its motion, the State asserted:
Good cause exists for this extension. During the time in which Counsel has been preparing the instant brief, Counsel has been assigned to numerous time sensitive projects. Due to this attorney's existing docket, the State requests an extension of time from July 9, 2023 to February 12, 2024, in which to file its brief.
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 Peterson 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 Peterson 20 days to file his reply brief. See id. 38.6(c).
Also, as a criminal appeal, this case involves 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 this case, Peterson's punishment was assessed at 25 years of imprisonment and approximately 16 months had already passed by the time of submission. To postpone the submission date to further accommodate the State would be unfair to Peterson.
The Court DENIES the State's February 12, 2024, second motion for extension of time to file its brief.