Intoxication Assault case: pretrial NO motions (except an application for probation - Concerned about an ineffective assistance claim State points out Not Eligible for Probation; Defense Counsel Claims Maybe Eligible; Court States "if Deadly Weapon Found True, not Eligible for Probation"), NO plea agreement, at trial Defendant pleads GUILTY, TRUE to the deadly weapon, and TRUE to a prior felony conviction, full PSI, victim testimony, defendant's family testimony. Found GUILTY, Deadly Weapon - TRUE, prior felony - TRUE, sentenced to seven (7) years. Notice of Appeal given and appeal bond posted. Sorry about the full history, but I think it is relevant to show the complete lack of an Appellate Issue and notice was only given to delay punishment. (I would agree to a new trial if the State had the right to elect a jury for punishment!)
Appellant's brief was due a week ago, this morning I stopped by the office and found Appellant's motion for extension of time faxed in at 5:05 p.m. on July 3rd, claimed basis being counsel is too busy. I am going to reply, but was looking for insight on just how argumentative I can be in my reply.

[This message was edited by John Greenwood on 07-05-08 at .]

I don’t think you have much chance of achieving anything useful. I would expect the court of appeals to either ignore you or to abate the appeal. See TEX. R. APP. P. 38.8(b). If they abate the appeal you could end up with new counsel being appointed.

If you’re determined to object I would be as restrained as possible.

I have learned that most courts grant a first motion for extension as a matter of course, often within a day or so of the filing (so that you have no time to respond). So, be quick about it. Personally, I see no particular reason to be muted if you are going to try to get a shorter extension. To me, the rule excludes a busy schedule as a basis for avoiding the deadline. And particularly where the appellant is out on bond and the appeal seems frivolous something should be done more often. The problem is, nothing works. I will try to send you my example of a "strong" motion, which relies primarily on civil cases. The 11th Court has recently sent out warnings that it is not going to consider mere conflicting business as a good excuse, but it will be interesting to see how they enforce that policy.

Four months ago I watched the Appellant walkout of jail while the victim was wheeled out of the Courthouse. Appellant�s motion got the better of my emotions. My blood pressure has finally dropped a bit. I think I am going to file a reply describing the procedural history and, based on the simple and brief record, ask that no further extensions be granted. Better to be on the high side of reasonable than the low side of ridiculous. Thanks for the input and the reality check.

I recommend you work on amending the statute that takes away the right to bail pending appeal. A couple of sessions ago it was amended to include offenses listed in article 42.12, sec. 3g, CCP. But, we slipped up and forgot to include a reference to the subsection that covered any felony in which there was a deadly weapon finding.

I bet you could get victim groups and other to support such an amendment. Talk to your Senator and State Rep.

I would say that courts have a tendency to grant a motion no matter how late it is filed. The 11th CoA granted one that was filed 11 weeks after the brief was due. I have the same problem with this attorney on five more briefs. No extension filed and briefs were due 6/13, 6/16 and per show cause letter from CoA 7/7 (no mailbox rule). I called the Court about this continuing problem but it seems they are inclined to let it continue - in fact they did not even send out letters on some of the briefs that are late (only 3 of the 5)