Von Tungeln, Ex Parte Julie Ann

PD-1016-15 PD-1016-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/6/2015 10:32:15 PM Accepted 8/11/2015 1:16:53 PM ABEL ACOSTA CLERK

COURT OF CRIMINAL APPEALS

PD- -15

Ex Parte Julie Ann VonTungeln On Discretionary Review from No.10-14-00329-CR Tenth Court of Appeals, Waco On Appeal From No. F43117-A 18th District Court, Johnson County

Motion to Extend Time to File Petition for Discretionary Review Kristin R. Brown 18208 Preston Road Dallas, Texas 75252 Phone: 214-446-3909 Fax: 214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458

Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone: 972-795-2401 Fax: 972-692-6636 michael@_mowlalaw.com Texas Bar No. 24048680

Attorneys for Appellant

August 11, 2015 *2 To the Honorable Justices of the Court of Criminal Appeals:

Appellant Julie VonTungeln moves for an extension of time of 30 days to file a petition for discretionary review:

l. On August 6, 2015, in Ex Parle Julie Von Tungeln, 10-14-00329-CR, 2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (memorandum opinion) the Court of Appeals affirmed the 18th District Court's denial of Appellant's Application for Writ of Habeas Corpus under 11.072. See attached.

2. The petition for discretionary review is due September 5, 2015.

3. For good cause, Appellant asks for an extension of 30 days, until

October S, 2015, to file the petition for discretionary review.

4. No previous extension to file the petition for discretionary review has been filed.

5. Appellant relies on the following facts as good cause for the requested extension: undersigned counsel Kristin R. Brown just completed an Appellant's Brief in Ryder v. State, 07-15-00003-CR, Seventh Court of Appeals.

6. Further, Ms. Brown has the following briefs, petitions for

discretionary review, or other pleadings due soon:

• • Appellant's Brief in Jessica Boyett v. State of Texas, 6th Court of Appeals, due September 8, 2015.

• • Appellant's Brief in James Kirvin v. State of Texas, 5th Court of Appeals, due August 16, 2015
• • Appellant's Brief in Cathy Lea Bates v. State of Texas, 5th Court of Appeals, due August 29, 2015.
• • Appellant's Brief in David Fothergill v. State of Texas, 5th Court of Appeals, due August 28, 2015.
• • Appellant's Brief in David Wayne Cahill v. State of Texas, 5th Court of Appeals, due September 13, 2015.
• • Ex Parte Michael Ca"oll, 3-15-cv- , a federal writ under 28 USC 2255, Northern District of Texas, due on October 29, 2015.

7. In addition, Ms. Brown is preparing for oral arguments in Robert

James Gray v. State of Texas (murder) and Jeffery Lynn Aday v. State of Texas, both in front of the Fifth District Court of Appeals on September 23, 2015, and October 14, 2015, respectively.

8. Finally, Ms. Brown will also be out-of-state at continuing legal

education in Wyoming from August 21, 2015 to September 3, 2015.

9. Mowla has the following briefs, petitions for discretionary review, or other pleadings due soon:

• • Collins v. State, 08-15-00103 (murder case), appellant's brief due on August 10, 2015 in the Eighth Court of Appeals
• • Jackson v. State, 05-15-00414-CR, appellant's brief due on August 10, 2015 in the Fifth Court of Appeals

• • Hernandez v. State, I 0-14-00302-CR, reply brief due on August I 0, 2015 in the Tenth Court of Appeals
• • Zimmerman v. Harris, 15-50424, appellant's brief due on August 20, 2015 in the Fifth Circuit
• • Burks v. Price, 15-40799, appellant's brief due on August 25, 2015 in the Fifth Circuit
• • Munoz v. State, 05-15-00158-CR, appellant's brief due on September 12, 2015 in the Fifth Court of Appeals

IO.In addition, Mow la continues work on a federal habeas corpus death penalty case, Jones v. Stephens, 4:05-CV-638-Y.

I I .And, Mowla was recently appointed on a federal death penalty habeas case in Green v. Director, 3: I 5-cv-02197-M-BH.

12.Further, Mowla also continues work on a state habeas corpus death penalty case, Ex parte Thomas, F86-85539, in the 194•h Judicial District Court. This case is in its investigation stage and requires considerable amount of time.

13.Finally, Mowla continues work on several habeas cases involving the underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).

14.This Motion is not filed for purposes of delay, but so that justice may be served.

Prayer

Appellant prays that this motion for extension of time to file the PDR be granted.

Respectfully submitted,

The Law Office of Kristin R. Brown, PLLC 18208 Preston Road Dallas, Texas 75252 Phone:214-446-3909 Fax:214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458 Attorney for Appellant

/s/ Kristin R. Brown By: Kristm R. Brown

Michael Mowla 445 E. FM 1382 No. 3-718 Cedar Hill, Texas 75104 Phone:972-795-2401 Fax:972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant

/s/ Michael Mowla By: Michael Mowla

Certificate of Service

I certify that on August 6, 2015, a true and correct copy of this document was served on David Vernon of the Johnson County District Attorney's Office, Appellate Division, by email to davidv@johnsoncountv.tx.org. and on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11 (2015).

/s/ Kristin R. Brown By: Kristm R. Brown

No Shepard's Signal™ As of: August 6, 2015 I 0:42 PM EDT

Ex oarte Tungeln Court of Appeals of Texas, Tenth District August 6, 2015, Opinion Filed No. 10-14-00329-CR

Reporter 2015 Tex. App. LEXIS 8247

EX PARTE JULIE ANN VON TUNGELN Registration of Informal Marriage, seeTEX. FAM. CODEANN. §§ 2.../01, 2.-102 (West 2006), but they had it Notice: Decision text below is the first available text from immediately annulled when they learned that Alsobrook's the court: it has not been editorially reviewed by LexisNexis. divorce was not final. Alsobrook, like Appellant, was also Publisher's editorial review, including Headnotes, Case on felony community supervision.Ion June 19, 2013, [*2] Summary, Shepard's analysis or any amendments will be the State filed its First Amended Motion to Proceed with an added in accordance with LexisNexis editorial guidelines. Adjudication of Guilt; it alleged in part that Appellant violated Core Terms Condition 3, "to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook, who has an extensive community supervision, probation, pet, trial court, parte, criminal history and is currently on felony probation for Probationers, terms and conditions, conditions, rights Family

Violence in Dallas County, Texas."2After Appellant agreed Opinion to two weeks in jail as a condition of probation for the alleged violations, the State withdrew its motion to [*l] From the 18th District Court Johnson County, Texas adjudicate. Trial Court No. F43117-A On August 27, 2013, and again without the trial court's MEMORANDUM OPINION approval,3Appellant and Alsobrook filed a second Formal In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to Declaration and Registration of Informal Marriage. After filing several unsuccessful motions to modify her community two counts of sexual assault of a child under a plea bargain supervision terms and conditions so that she could associate that included the following terms: ten years' deferred with Alsobrook, Appellant filed the instant habeas application adjudication community supervision, 180 days in county and raised constitutional complaints about Condition 3' s jail with work release, a $2,000 fine, sex-offender terms and application to her spouse. SeeTEX. CODECRIM. PROC. conditions, and standard community supervision terms and ANN. arr. 11.072. § 3<cl (West 2015). The trial conditions. One of the standard terms and conditions of community supervision that Appellant agreed to be subject 1 Upon learning that Alsobrook had a criminal record, to is Condition 3: "Avoid association with persons who have Appellant would have been in violation of Condition criminal records and those of disreputable or harmful character." 3 by associating with him. See Gill v. State.593 S. W2d 697. 698 (fex. Crim. App. /Pa11e/ Op. I 1980). Appellant initialed and signed the felony community supervision order, along with signing the "Order of Deferred 2The State also alleged that Appellant had associated with Adjudication: Community Supervision" and the plea another man with a criminal background over a two-year period. Other [*3] alleged violations were: drinking alcohol agreement. on two occasions; travelling more than

In May of2013, Appellant (without the trial court's approval) I 00 miles without permission; and twice having and Steven Alsobrook filed a Formal Declaration and unsupervised contact with children.

Page 2 of 3 2015 Tex. App. LEXIS 8247, *3

3 Appellant filed a motion to modify after the filing of the (3) it forbids or requires conduct that is not reasonably second Declaration. related to the future criminality of the defendant or does not serve the statutory ends of probation. Ex parte Von Tungeln Page 2 Lacv '" State. 875 S. W2d 3. 5 <Tex. App.-Tvler 1994. pet. court entered an order finding that Appellant was manifestly ref"d) (citationsomitted); accord Marcum I'. State. 983 not entitled to relief and denied the habeas application as S. \V.2d 762. 768 <Tex. App.-Housto11 fl-Ith Dist. I 1998. per. frivolous. This appeal followed. ref'd ). A community supervision "condition is not necessarily invalid simply because it affects [the defendant's] ability to Appellant asserts two issues: ( 1) the trial court abused its exercise constitutionally protected rights." Lee 1·. State. 952 discretion and violated S. W2d 894. 900 <Tex. A.pp.-Dallas 1997. 110 pet.) (en bane). A condition that is "reasonably related to the purposes of Appellant's constitutional rights because Condition 3 is probation" is permissible. [*5] Id. ''Reasonably related" unconstitutional as applied to Appellant because it violates hinges on three factors: "(l) the purposes sought to be Appellant's rights to privacy, due process, and equal served by probation; (2) the extent to which constitutional protection; and (2) the trial court violated Appellant's rights enjoyed by law-abiding citizens should be accorded constitutional rights because Condition 3 is unconstitutional to probationers; and (3) the legitimate needs of law as applied to Appellant because it violates Appellant's enforcement." Macias i: State.649 S. W2d 150. I 52 <Tex. App.-£/ Paso 1983. 110 pet.) (quoting United States 1: Tonn·. First Amendment right of association. Because the habeas 605 F.2d 144. 150 (5th Ch: 1979), abrogation on other court determined that grounds recognized by United States v.Tex. Tech Unil'.. 171 Appellant's application was frivolous and that Appellant F.3d 279. 287 (5th Cil: /999»;accord Lee. 952 S. \Y.2d was manifestly not entitled to relief, we review de novo the at900. habeas court's order. Ex parte Skelto11.-13-I S. W'.Jd 709. 717 Briselio 1·. State. 293 S. W3d 644. 647--18 <Tt.·x. App.-San <Tex. App.-Sa11 A111n11io 20J.I. oet. ref'd). Antonio 2009. no pet. J;see also Ex

An award of community supervision is not a right, but a parte Alakavi. 102 S. it'.3d 426. 432 <Tex. App.-Housto11 contractual privilege, and its conditions are terms of the !I-Ith Dist. I 2003. pet. ref"d). contract entered into between [*4] the trial court and the defendant. Speth v. State. 6 S. W3d 530. 534 <Tex. Crim. A probationer has diminished constitutional rights, including Ann. 1999 ). A trial court has broad discretion in determining a diminished right the conditions to be imposed. Id. m 533; see also Butler 1: Stare. 189 S. W3d 299. 303 <Tex. Crim. App. 2006)."'The to privacy. ill re D.L.C.. I 2-1 S. \Y.3d 35-1 3t55 fTt.>.t. A.rm.-Fnrr judge may impose any reasonablecondition that is designed \forth 2003. no pet.) (citing to protect or restore the community, protect or restore the victim, or punish, rehabilitate. or reform the defendant." Griffi11 1·. Wisconsin. 483 U.S. 868. 875. 107 S.Ct. 3164. TEX. CODECRIM. PROC. ANN. art. 42. I 2. § ]](a) (West 3169. 97 L.Ed.2d 709 <1987)). Supp. 2014). One of the statutory conditions that a trial court may include is that the defendant shall: "Avoid [R]ehabilitation is [not] the sole goal of probation. A second persons or places of disreputable or harmful character." primary goal of probation is protecting society. Knights, 534 Id.art. 42.12. § 1](a)(3). This condition is presumptively U.S. at 119, 122 S.Ct. 587; see TEX. CODECRIM. PROC. ANN. art. 42.12 sec. IJ(a) (Vernon Supp. 2008) (stating reasonable. SeeMitclzell '" State. 420 S. W3d 448. 450 <Tex. App. -Houston I 14th Dist. I 20 I 4. 110 pet.). judge may impose any reasonable condition of probation designed to protect the community). Probationers are "more Ex parte Von Tungeln Page 3 likely than the ordinary citizen to violate the law." Knights,534 U.S. at 120, 122 S.Ct. 587; Griffin,483 A condition of probation is invalid if it has all three of the following characteristics: Ex parte Von Tungeln Page 4

(I) it has no relationship to the crime; U.S. at 880, 107 S.Ct. 3164.... Probationers therefore "do not enjoy 'the absolute liberty to which every citizen is (2) it relates to conduct that is not in itself criminal; and entitled, but only ... conditional liberty properly dependent

Page 3 of 3 2015 Tex. App. LEXIS 8247, *5

on observation of special [probation] restrictions.' " we cannot say that the trial court erred or abused its Griffin.483 U.S. ar 874. 107 S.Ct. 3164 (quoting Morrissev discretion in denying Appellant's l:Bmm: 408 U.S. 471. 480. 92 S.Ct. 2593. 33 L.Ed.2d 484 f 1972 n"Theserestrictions are meant to assure that the habeas application. See id.at 432-33 (upholding probation serves as a period of genuine rehabilitation and community-supervision conditions that that the community is not harmed by the probationer's being restricted defendant's access to his son and also prevented at large." [*6] Griffin. 483 U.S. at 875. 107 S.Ct. 3164. defendant from living with Townes \: State, 293 S. iV.3d 227. 231 <Tex. App.-Sa11 his wife as long as [*7] she was living with their son, against Antonio 2009. 110 pet.). defendant's constitutional We agree with the State that the purpose of Condition 3 is Ex parte Von Tungeln Page 5 to assist Appellant's complaint pertaining to his right to association with his rehabilitation and reformation by preventing her from family); see also In re Pate, No. 12- associating with persons with 11-00406-CV, 2012 WL 1142477 (Tex. App.-Tyler Mar. 30, criminal records and disreputable or harmful character. As 2012, orig. proceeding) (mem. quoted above, probationers op.) (imprisoned husband did not establish constitutional are more likely than the ordinary citizen to violate the law, infirmity of wife's community- and the State's goal of supervision condition that prevents her from communicating protecting society is furthered by preventing felons on with him). community supervision from We overrule Appellant's two issues and affirm the trial associating with each other. See id. court's order.

Appellant had the burden of proving facts entitling her to REX D. DAVIS the requested relief. Justice Alakayi. 102 S. lV.3d at 432. The record shows that Appellant twice began relationships Before Chief Justice Gray, Justice Davis, and Justice Scoggins with men with criminal records, that Appellant twice (Chief Justice Gray dissents with a note)* Affirmed "married" Alsobrook without court Opinion delivered and filed August 6, 2015 Do not publish approval (including once while a motion to adjudicate was pending and after having [CR25]

been arrested and released on bond), and that Appellant *(Chief Justice Gray dissents from the opinion and judgment allegedly violated other terms of the Court. A separate opinion will not be issued.)

and conditions. Based on the record, we cannot say that Ex parte Von Tungeln Page 6 Appellant met her burden, and