The opinion
ACCEPTED
03-14-00381-CR
5824472
THIRD COURT OF APPEALS
AUSTIN, TEXAS
Kristen Jernigan 6/25/2015 1:57:09 PM
JEFFREY D. KYLE
Attorney at Law CLERK
207 S. Austin Ave., Georgetown, Texas 78626
(512) 904-0123 (AUSTIN AREA) (832) 642-3081 (HOUSTON
FILEDAREA)
IN
3rd COURT OF APPEALS
KRISTEN@TXCRIMAPP.COM AUSTIN, TEXAS
6/25/2015 1:57:09 PM
B BOARD
CERTIFIED' JEFFREY D. KYLE
CRIMINAL APPELLATE LAW
Clerk
June 25,2015
VIA CERTIFIED MAIL, RRR # 7014 2120 0004 1503
Eric Alan Moore, Jr.
TDCJ No. 01936595
Ferguson Unit
12120 Savage Drive
Midway, Texas 75852-3654
Re: Eric Alan Moore, Jr. v. The State of Texas, No. 03-14-00381-CR
Dear Eric:
I have enclosed a copy of the Court of Appeals' opinion in your case.
Unfortunately, your conviction and sentence were affirmed by the Court. The
Court's opinion was issued on June 24,2015. You now have the right to file a pro
se Petition for Discretionary Review. That Petition is due within thirty days of the
date of the Court's opinion, making it due on or before July 24, 2015. As a
courtesy, I have filed an extension of that filing deadline with the Court of
Criminal Appeals, which I have enclosed. If that motion is granted, your petition
will be due on or before September 22, 2015. I have enclosed a copy of the
relevant Rules of Appellate Procedure that apply to petitions for discretionary
review so that you will know the deadlines and requirements for filing the petition.
When you file the petition, be sure to attach a copy of the Court of Appeals'
opinion. I urge you to contact the Bell County District Clerk to obtain the records
you may need to draft your petition. In addition I have attached a motion you can
file with the Court of Appeals to obtain a copy of your appellate record.
The Bell County District Clerk's address is:
Bell County District Clerk
1200 Huey Road
Belton, Texas 76513
The Court of Appeals address is:
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711
The Texas Court of Criminal Appeals address is:
Texas Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
I wish you the best of luck.
Sincerely,
/s/ Kristen Jernigan
Kristen Jernigan
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00381-CR
Eric Alan Moore, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 67109, HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Eric Alan Moore, Jr. appeals the district court's judgment adjudicating guilt, revoking
his probation, and sentencing him to six years in prison. He contends the revocation of his probation
was an abuse of the court's discretion because the victim denied the assault occurred and another
witness's testimony about the assault was not credible. We will affirm the district court's judgment.
BACKGROUND
Moore was indicted in 2010 for aggravated assault with a deadly weapon. See
Tex. Penal Code § 22.02. He entered into a plea agreement placing him on deferred-adjudication
probation for ten years. The first condition of his probation was that he "neither commit nor be
convicted of any offense against the laws of the State of Texas."
On an early morning in 2014, Moore and his girlfriend Jaquilla Scott got into an
argument. Moore kicked in the door of her apartment, and then the altercation moved outside. The
noise from the quarrel and the cries of the couple's child woke the neighbors. A few of them went
outside and attempted to stop the altercation. One of the neighbors, Peatreia Spells, testified that
she heard another neighbor, Shanta Britton, yelling "Stop hitting her!" Spells grabbed her gun and
placed it in her jacket pocket before stepping outside her apartment. When she saw that Moore had
Scott by the hair and was punching her, Spells threatened to shoot Moore if he hit Scott again. She
then called the police at Scott's request. After the police arrived, they took pictures of Scott and the
scene of the argument and spoke with Moore, Scott, and neighbors who witnessed the argument.
The neighbors reported that Moore struck Scott, consistent with Scott's injuries, including
her "busted lip" that officers saw and photographed. Based on the witnesses' statements and the
officers' observations, the officers concluded there was probable cause to believe the assault took
place and arrested Moore.
The State subsequently filed a motion to adjudicate Moore's guilt and revoke
his probation, alleging that he violated it by committing the offense of assault family violence. See
Tex. Code Crim. Proc. art. 42.12, § 5(b) (providing adjudication procedure for violation of
condition of community supervision); Tex. Penal Code § 22.01 (defining offense of assault). At the
subsequent hearing on the motion, Moore pled "not true" to the allegations, and in her testimony
Scott denied that Moore hit her. Three neighbors testified otherwise. At the conclusion of the
hearing, the court found the State's allegations to be true, revoked Moore's probation, and sentenced
him. Moore then filed this appeal.
DISCUSSION
In one issue on appeal, Moore challenges the sufficiency of the evidence supporting
the district court's judgment, emphasizing Scott's testimony that he did not assault her and
challenging the credibility of Spells's testimony.
We review an appeal from a revocation of probation under an abuse of discretion
standard, taking into account the sufficiency of the evidence supporting the basis for revocation.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Abuse of discretion occurs "only
when the trial judge's decision was so clearly wrong as to lie outside the zone within which
reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667,682 (Tex. Crim. App. 1992).
A trial court abuses its discretion in revoking probation if the State fails to prove by a preponderance
of the evidence that a violation of probation occurred. Cobb v. State, 851 S.W.2d 871, 874
(Tex. Crim. App. 1993). In this context, "a preponderance of the evidence" means "the greater
weight of the credible evidence which would create a reasonable belief that the defendant violated
a condition of his probation." Rickets v. State, 202 S.W.3d 759, 764 (Tex. Crim App. 2006);
see Moore v. State, No. 03-08-00097-CR, 2008 Tex. App. LEXIS 8138, at *3 (Tex. App.—Austin
Oct. 24,2008, pet. refd) (mem. op., not designated for publication).
The degree of proof required to establish the truth of the allegation in a motion to
revoke probation is not the same as a criminal prosecution. Hacker, 389 S.W.3d at 865. This means
that a defendant may be acquitted of a crime and still have his probation revoked based on the
same act because a preponderance-of-the-evidence standard—rather than beyond-a-reasonable-
doubt standard—applies to revocation proceedings. See Barrett v. State, 630 S.W.2d 335, 336-37
(Tex. App.—Houston [14th Dist.] 1982, no writ). We do not engage in a "divide and conquer"
3
strategy to evaluate the sufficiency of evidence but consider the combined and cumulative force of
all the evidence before the trial court, id. at 873, viewed in the light most favorable to its ruling,
Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). The trial judge is the
sole judge of the credibility of the witnesses and the weight to be given to their testimony. Mauney,
107S.W.3dat695.
Sufficiency of evidence supporting violation
Moore contends that there is insufficient evidence supporting the district court's
judgment because Scott testified that Moore did not hit her. Because Scott denied the assault, Moore
asserts the court abused its discretion in finding that the assault occurred. We disagree.
The court heard Scott testify that she did not wish to be at the hearing. She stated that
she lived with Moore, who was her boyfriend and the father of one of her children, and that
Moore cared for her children while she worked. She admitted that she continued to live with
Moore even after their altercation.1 The court also heard an investigating officer2 testify that Moore's
mother came to the scene and told Scott to tell the police that Moore did not hit her.3 Scott testified
that Moore did not hit her.
1 When the first half of the hearing recessed and before Scott testified, the district court
ordered Moore not to have any contact with Scott until the hearing concluded.
2 Officer Kyle Moore of the Killeen Police Department testified about the investigation. We
refer to him by his title because he has the same last name as appellant.
3 The officer also testified that he showed Scott's injury to Moore's mother, "And, then,
that's when she looked at her lip and she was kind of like, okay, well, maybe he messed up."
But other evidence at the hearing conflicted with Scott's testimony, including police
photographs of her taken at the scene and the testimony of her neighbors. Police photographs show
Scott's facial injury, a "busted" lip. When the prosecutor told Scott, "We have seen your busted lip,"
Scott began to cry. She offered no explanation for her injury. Spells testified that she saw Moore
hold Scott by the hair and repeatedly hit her "in her face and in her head" and that he did not stop
until Spells, without drawing her gun, threatened to shoot him. Britton, another of Scott's neighbors,
similarly testified that Moore hit Scott in "the face area." And another of Scott's neighbors, Gina
Erwin, who did not know Moore or Scott, testified that she heard sounds, opened her apartment door,
and saw "the guy get on top of her and start hitting on her," "just wailing on her head." When asked
about this testimony, Scott said she did not know why her neighbors would go to court and tell the
judge that they saw Moore hitting her if it had not happened.
Moore does not challenge the testimony from Britton or Erwin, but he contends that
Spells "embellished" her testimony to justify bringing a gun with her and threatening to shoot him.
However, the district court was entrusted with determining whether the testimony from Scott and
her neighbors was credible and reconciling any conflicts in their testimony. See Hacker, 389 S. W.3d
at 865. After considering the combined and cumulative force of all the evidence, the district court
could have rejected Scott's denial of the assault as not credible and found that the neighbors'
testimony that Moore hit Scott was credible. See id. at 873. Testimony from Scott's neighbors also
aligns with the depiction of Scott's injuries in police photographs.
Viewing the evidence and reasonable inferences therefrom in the light most favorable
to the district court's ruling, we conclude that the greater weight of credible evidence in this
record supports the court's reasonable belief that Moore violated a condition of his probation by
5
assaulting Scott. As such, the court did not abuse its discretion by revoking Moore's probation and
adjudicating his guilt. We overrule Moore's sole issue on appeal.
CONCLUSION
We affirm the district court's judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
Affirmed
Filed: June 24,2015
Do Not Publish
TEXAS RULES OF APPELLATE PROCEDURE
_Pagc71
opinion wtthoutmodifyingits judgment, the Court will ordinarily 663. Reasons for Granting Review
deny a second motion for rehearing unless the new opinion is
substantially different from the original opinion. While neither controlling nor fully measuring the Court of
Criminal Appeals'discretion, the following will be considered by
the Court in deciding whether to grant discretionary review:
Rule 65. Enforcement of Judgment
after Mandate (a) whether a court of appeals' decision conflicts with
another court of appeals' decision on the same issue;
65.1. Statement of Costs
(b) whether a court of appeals has decided an important
The Supreme Court clerk will prepare, and send to the question of state or federal law that has not been, but
clerk to whom the mandate is directed, a statement of costs should be, settled by the Court of Criminal Appeals;
showing:
(c) whether a court of appeals has decided an important
(a) the costs that were incurred in the Supreme Court, question of state or federal law in a way that
with a notation of those items that have been paid conflicts with the applicable decisions of the Court
and those that are owing; and of Criminal Appeals or the Supreme Court of the
United States;
(b) the party or parties against whom costs have been
adjudged. (d) whether a court of appeals has declared a statute,
rule, regulation, or ordinance unconstitutional, or
65.2. Enforcement of Judgment appears to have misconstrued a statute, rule,
regulation, or ordinance;
If the Supreme Court renders judgment, the trial court need
not make any further order. Upon receiving the Supreme Court's (e) whether the justices of a court of appeals have
mandate, the trial court clerk must proceed to enforce the disagreed on a material question of law necessary to
the court's decision; and
judgment of the Supreme Court's as in any other case. Appellate
court costs must be included with the trial court costs in any
process to enforce the judgment If all or part of the costs are (f) whether a court of appeals has so far departed from
collected, the trial court clerk must immediately remit to the the accepted and usual course of judicial
appellate court clerk any amount due to that clerk. proceedings, or so far sanctioned such a departure by
a lower court, as to call for an exercise of the Court
Notes and Comments of Criminal Appeals' power of supervision.
Comment to 1997 change: Subdivision 65.1 is new. 66 A Documents to Aid Decision
Subdivision 65.2 is from former Rule 183.
(a) Acquiring Documents. The Court of Criminal
Appeals—or any judge of the Court—may order
SECTION FIVE: the court of appeals clerk to promptly send the
PROCEEDINGS IN THE following items to the Court in order to aid it in
deciding whether to grant discretionary review:
COURT OF CRIMINAL APPEALS
(1) the appellate record;
Rule 66. Discretionary Review
in General (2) a copy of the opinions of the court of appeals;
66.1. With or Without Petition (3) a copy of the motions filed in the court of
appeals; and
The Court of Criminal Appeals may review a court of
appeals" decision in a criminal case on its own initiative under (4) certitledcopiesofanyjudgrnentororderofthe
Rule 67 or on the petition of a party under Rule 68. court of appeals.
6&2. Not a Matter of Right (b) Return of Documents. If discretionary review is not
granted, the clerk of the Court of Criminal Appeals
Discretionary review by the Court of Criminal Appeals is will return the appellate record to the court of
not a matter of right, but of the Court's discretion. appeals clerk.
71
Page 72 TEXAS RULES OF APPELLATE PROCEDURE
Notes and Comments
68.1. Generally
Comment to 1997 change: This is former Rule 200. The
former rule's reference to motions for rehearing now appears in On petition by any party, the Court of Criminal Appeals
Rule 49.9. The rule is otherwise amended without substantive may review a court of appeals' decision in a criminal case.
change.
68.2. Time to File Petition
Rule 67. Discretionary Review (a) First Petition. The petition must be filed within 30
Without Petition days after either the day the court of appeals'
judgment was rendered or the day the last timely
67.1. Four Judges'Vote motion for rehearing or timely motion for en banc
reconsideration was overruled by the court of
By a vote of at least four judges, the Court of Criminal
Appeals may grant review of a court of appeals' decision in a
criminal case at any time before the mandate of the court of (b) Subsequent Petition. Even if the time specified in (a)
appeals issues. An order granting review will be filed with the has expired, a party who otherwise may file a
clerk of the Court of Criminal Appeals, who must send a copy to petition may do so within 10 days after the timely
the court of appeals clerk. filing of another party's petition.
67.2. Order Staying Mandate (c) Extension of Time. The Court of Criminal Appeals
may extend the time to file a petition for
To provide enough time for the Court of Criminal Appeals discretionary review if a party files a motion
to decide whether to grant discretionary review under 67.1, the complying with Rule 10.5(b) no later than 15 days
Court—or any judge of the Court—may file with the clerk of after the last day for filing die petition. The Court of
the court of appeals an order staying the court of appeals' Criminal Appeals may extend the time to file a
mandate. The order must be signed by a judge of the Court of response or reply if a party files a motion complying
Criminal Appeals. The clerk of the Court of Criminal Appeals wi w Rule 10.5(b) either before or after the response
must immediately send a copy of the order to the court of appeals or reply is due.
clerk.
Notes and Comments
673. Time to Issue Mandate Extended
Comment to 2011 change: Theamendment to Rule 682(a)
Unless otherwise limited in the order itself, an order resolves timely filing questions concerning motions for en banc
reconsideration by including those motions in calculating time to
staying the court of appeals' mandate under 67.2 will extend for
an additional 45 days the time before issuance of the court of file.
appeals' mandate. An order granting review prevents the
issuance of the court of appeals' mandate pending the further 683. Where to File Petition
order of me Court of Criminal Appeals. If four judges do not
agree to grant review within that time the court of appeals clerk (a) The petition and all copies of the petition must be filed
must issue the mandate. with the clerk of the Court of Criminal Appeals.
Notes and Comments (b) Petition Filed in Court of Appeals. If a petition is
mistakenly filed in the court of appeals, the petition is deemed to
Comment to 1997 change: This is former Rule 201. The have been filed the same day with the clerk of the Court of
rule is amended without substantive change. Criminal Appeals, and the court of appeals clerk must
immediately send the petition to the clerk of the Court of
Comment to 2000 change: Language which was in the Criminal Appeals.
catchline of former Rule 201 has been deleted from Rule 67.1, to
restore the substance of the rule, and to remove any implication Notes and Comments
that the court may not grant review on its own motion when a
Comment to 2011 change: Rule 683 is changed to require
petition for discretionary review has been filed.
petitions for discretionary review to be filed in the Court of
Criminal Appeals rather than in the court of appeals. With the
deletion of Rule 50, there is no reason to file petitions in the
Rule 68. Discretionary Review
court of appeals. Rule 683(b) is added to address and prevent
With Petition the untimely filing of petitions for discretionary review mat are
72
TEXAS RULES OF APPELLATE PROCEDURE
Page 73
incorrectly filed in the court of appeals rather than in the Court If the petitioner has access to the record, the
of Criminal Appeals.
petitioner must (after each ground) refer to the page
of the record where the matter complained of is
68.4. Contents of Petition
found. Instead of listing grounds for review, the
A petition for discretionary review must be as brief as petition may contain the questions presented for
review, expressed in the terms and circumstances of
possible. It must be addressed to the "Court of Criminal Appeals the case but without unnecessary detail. The
of Texas'* and must state the name of the party or parties statement of questions should be short and concise,
applying for review. The petition must contain the following not argumentative or repetitious.
items:
(h) Argument. The petition must contain a direct and
(a) Identity of Judge, Parties, and Counsel. The petition concise argument, with supporting authorities,
must list the trial court judge, all parties to the
amplifying the reasons for granting review. See Rule
judgment or Older appealed from, and the names and 663. The court of appeals' opinions will be
addresses of all trial and appellate counsel. considered with the petition, and statements in those
opinions need not be repeated if counsel accepts
(b) Table of Contents. The petition must include a table them as correct
of contents with references to the pages of the
petition. The table of contents must indicate the (i) Prayer for Relief. The petition must state clearly the
subject matter of each ground or question presented nature of the relief sought
for review.
0) Appendix. The petition must contain a copy of any
(c) Index of Authorities. The petition must include an opinion of the court of appeals.
index of authorities arranged alphabetically and
indicating the pages of the petition where the 683. Deleted
authorities are cited.
6&6. Nonconforming Petition
(d) Statement Regarding Oral Argument. The petition
must include a short statement of why oral argument The Court may strike, order redrawn, or summarily refuse
would be helpful, or a statement that oral argument a petition for discretionary review that is unnecessarily lengthy
is waived. If a reply or cross-petition is filed, it or that does not conform to these rules.
likewise must include a statement of why oral
argument should or should not be heard. 68.7. Court of Appeals Clerk's Duties
(e) Statement oftkeGise.ThepeLilionmuslstalizbriefly Within 15 days of receiving notice of die filing of a
the nature of the case. This statement should seldom petition for discretionary review from the clerk of the Court of
exceed half a page. The details of the case should be Criminal Appeals, the clerk of the court of appeals must send to
reserved and stated with the pertinent grounds or the clerk of the Court of Criminal Appeals the record, any
questions. motions filed in the case, and copies of any judgments, opinions,
and orders of the court of appeals. The clerk need not forward
(f) Statement of Procedural History. The petition must any nondocumentary exhibits unless ordered to do so by the
state: Court of Criminal Appeals.
(1) the date any opinion of the court of appeals Notes and Comments
was handed down, or the date of any order of
the court of appeals disposing of the case Comment to 2011 change: Rule 68.7(a) and (b) are deleted
without an opinion; and (c) is amended to reflect changes consistent with filing the
petition and reply in the Court of Criminal Appeals rather than
(2) the date any motion for rehearing was filed (or in the court of appeals, and to order the record to be sent to the
a statement that none was filed); and Court of Criminal Appeals. Additionally, Rule 68.7(c) is
amended to delete reference to Rule 50, which is abolished..
(3) thedatethemotionforiehearmgwasoverruled
or otherwise disposed of. 68.8. Court of Criminal Appeals Clerk's Duties
(g) Grounds for Review. The petition must state briefly, Upon receipt of the record from the court of appeals, the
without argument, the grounds on which the petition clerk of the Court of Criminal Appeals will file the record and
is based The grounds must be separately numbered. enter the filing on the docket
73
Page 74 TEXAS RULES OF APPELLATE PROCEDURE
Notes and Comments Comment to 2011 change: The address for the
State Prosecuting Attorney is deleted because it has changed
Comment to 2011 change: Rule 68.8 is amended to reflect and may change again.
changes consistent with filing the petition in the Court of
Criminal Appeals. Rule 69. Action of Court on Petition
for Discretionary Review and After
68.9 Reply. Granting Review
69.1. Granting or Refusal
The opposing party has 15 days after the timely filing of
die petition in the Court of Criminal Appeals to file a reply to If four judges do not vote to grant a petition for
the petition with the clerk of the Court of Criminal Appeals.
discretionary review, the Court will enter a docket notation that
the petition is refused. If four judges vote to grant a petition, the
Court will enter a docket notation that discretionary review is
Notes and Comments
granted.
Comment to 2011 change. This Rule is added so that any 693. Setting Case for Submission
reply will be filed in the Court of Criminal Appeals since the
petition is also filed in the Court of Criminal Appeals. If discretionary review is granted, either on the petition of
a party or by the Court on its own initiative, the case will be set
for submission.
68.10. Amendment
693. Improvident Grant of Review
Upon motion the petition or a reply may be amended or
supplemented at any time justice requires. If, after granting discretionary review, five judges are of
the opinion that discretionary review should not have been
Notes and Comments
granted, the case will be dismissed.
Comment to 2011 change: This Rule is changed to reflect 69.4. Clerk's Duties
the filing of the petition and any reply in the Court of Criminal
Appeals. Thus, the rule is also changed to require a motion and (a) On Refusal or Dismissal. When the Court refuses or
to delete a time frame because the petition will be filed in the dismisses a petition, the clerk will send to the parties
Court of Criminal Appeals. and the State Prosecuting Attorney a notice
informing them that the petition was refused or
68.11. Service on State Prosecuting Attorney dismissed. The clerk will retain the petition and all
other items filed in the case for at least 15 days from
In addition to the service required by Rule 93, the date of the refusal or dismissal. At the end of that
service of the petition, the reply, and any amendment or time, if no motion for rehearing has been timely
supplementation of a petition or reply must be made on the filed, or upon the overruling or dismissal of such a
State Prosecuting Attorney. motion, the clerk will send to the court of appeals
clerk a certified copy of the order refusing or
Notes and Comments dismissing the petition (as well as any order
overruling a motion for rehearing). The clerk of the
Comment to 1997 change: This is former Rule 202. Court of Criminal Appeals will return the appellate
Subdivisions (k) and (1) of the former rule have been relocated to record to the court of appeals clerk but will retain the
Rule 69. The new rule limits the length of a petition and reply. petition, and other documents filed in the Court of
The time for amendment of a petition or reply is increased to Criminal Appeals.
conform with the amendment in Rule 50. The rule is otherwise
amended without substantive change. (b) On Granting Review. If the Court grants
discretionary review, the clerk will send to the
Comment to 2002 change: The original catchline of parties and the State Prosecuting Attorney a notice
subdivision 68.4(g) was "Reasons for Review," which caused informing them that discretionary review was
confusion because of its similarity to the catchline in subdivision granted
663 ("Reasons for Granting Review"). It is changed to
"Argument" Notes and Comments
74
TEXAS RULES OF APPELLATE PROCEDURE Page7S
Comment to 1997 change: This is former subdivisions (k) 713. Briefs
and (1) of Rule 202. Internal procedures of the Court are
deleted. Provisions are added in 69.4(a) and (b) for the clerk to Briefs in a direct appeal should be prepared and filed in
send notice of the granting, refusal, or dismissal of a petition for accordance with Rule 38, except that the brief need not contain
discretionary review. Other nonsubstantive changes are made. an appendix (Rule 38. l(k)). All briefs must be filed in the Court
of Criminal Appeals. The brief must include a short statement of
why oral argument would be helpful, or a statement mat oral
Role 70. Brief on the Merits argument is waived.
70.1. Initial Brief 71.4. Additional Briefs
If review is granted, the petitioner—or, if there was no Upon motion by a party the Court may permit the filing
petition, the party who lost in the court of appeals—must file a of additional briefs other than those provided for in Rule 38.
brief within 30 days after review is granted.
Notes and Comments
703. Respondent's Brief
Comment to 1997 change: This is former Rule 210. The
The opposing party must file a brief within 30 days after rule is extended to all direct appeals. A page limit is added for
the petitioners brief is filed. death penalty cases. Other nonsubstantive changes are made.
703. Brief Contents and Form Comment to 2002 change: A requirement that briefs
include a statement regarding oral argument is added.
Briefs must comply with the requirements of Rules 9 and
38, except that they need not contain -the appendix (Rule
38. l(k)). Copies must be served as required by Rule 68.11. Rule 72. Extraordinary Matters
70.4. Other Briefs 72.1. Leave to Hie
The Court of Criminal Appeals may direct that a party file A motion for leave to file must accompany an original
a brief, or an additional brief, in a particular case. Additionally, petition for writ of habeas corpus, mandamus, procedendo,
upon motion by a party the Court may permit the filing of prohibition, certiorari, or other extraordinary writ, or any other
additional briefs. motion not otherwise provided for in these rules.
Notes and Comments 723. Disposition
Comment to 1997 change: This is former Rule 203. The If five judges tentatively believe that the case should be
rule is amended without substantive change. filed and set for submission, the motion for leave will be granted
and the case will then be handled and disposed of in accordance
with Rule 52.7. If the motion for leave is denied, no motions for
Rule 71. Direct Appeals rehearing or reconsideration will be entertained. But die Court
may, on its own initiative, reconsider a denial of a motion for
71.1. Direct Appeal leave.
Cases in which the death penalty has been assessed under Notes and Comments
Code of Criminal Procedure article 37.071, and cases in which
bail has been denied in non-capital cases under Article I, Section Comment to 1997 change: This is former Rule 211. The
1 la of the Constitution, are appealed directly to the Court of rule is amended to include all the Court's jurisdiction of
Criminal Appeals. extraordinary matters. Internal procedures of the Court are
deleted. Other nonsubstantive changes are made.
71.2. Record
The appellate record should be prepared and filed in Rule 73. Postconviction Applications for
accordance with Rules 31,32, 34, 35 and 37, except that the Writs of Habeas Corpus
record must be filed in the Court of Criminal Appeals. After
disposition of the appeal, the Court may discard copies of juror 73.1. Form for Application Filed Under Article 11.07 of the
information cards or other portions of the clerk's record that are Code of Criminal Procedure
not relevant to an issue on appeal.
75
No.
In the
COURT OF CRIMINAL APPEALS
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 67109; and the Opinion of the Third Court of Appeals
in Cause Number 03-14-00381-CR, Delivered June 24,2015
ERIC ALAN MOORE, JR.
v.
THE STATE OF TEXAS
MOTION FOR EXTENSION OF TIME TO FILE
PRO SE PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
COMES NOW, Kristen Jernigan, the undersigned attorney of record for Eric
Alan Moore, Jr., the Appellant, herein, and files this Motion for Extension of Time
to File Pro Se Petition for Discretionary Review. As set out below, the undersigned
respectfully requests a sixty-day extension so that Appellant can file his Pro Se
Petition for Discretionary Review. In support of said motion, the undersigned
would show the Court the following:
1. Appellant's Petition for Discretionary Review is currently due in this
case on July 24,2015.
2. Appellant seeks an extension of sixty days in which to file his Petition
for Discretionary Review, making his Petition due on or before September 22,
2015.
3. The undersigned counsel will not be representing Appellant after the
filing of this motion. Appellant will now have to obtain and review the record in
order to prepare and file a Pro Se Petition for Discretionary Review. The
undersigned believes that there is insufficient time between now and July 24,2015,
to accomplish those goals. Consequently, the undersigned respectfully requests
that the Court grant Appellant the additional time.
4. The undersigned has not filed any previous motions for extension of
time in this case.
5. For the reasons set forth above, the undersigned respectfully requests
that Appellant be granted an extension of sixty days so that his brief in this case
will now be due on September 22,2015.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the undersigned
respectfully requests that this Court grant this Motion for Extension of Time to File
Pro Se Petition for Discretionary Review.
Respectfully submitted,
/s/ Kristen Jernigan
KRISTEN JERNIGAN
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512)904-0123
(512) 931-3650 (fax)
Kristen@txcrimapp.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Appellant's Motion for Extension of Time has been mailed to the Bell
County District Attorney's Office, 1200 Huey Road, Belton, Texas 76513, on May
15,2015.
/s/ Kristen Jernigan
Kristen Jernigan