Juan Sergio Carreon Toledo v. State

ACCEPTED 01-15-00559-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/24/2015 1:40:19 PM CHRISTOPHER PRINE CLERK

APPEAL NO. 01-15-00559-CR __________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS FIRST JUDICIAL DISTRICT AT HOUSTON, TEXAS11/24/2015 1:40:19 PM __________________________ CHRISTOPHER A. PRINE Clerk JUAN SERGIO CARREON TOLEDO, Appellant,

Vs.

THE STATE OF TEXAS, Appellee. __________________________

On Appeal from the Judgment and Sentence of The 351st Judicial District Court of Harris County, Texas, Trial Court Cause No. 1454602 ___________________________

APPELLANT’S FIRST MOTION FOR EXTENSION IN TIME TO FILE BRIEF

TO THE HONORABLE JUSTICES OF THE 14TH COURT OF APPEALS:

Appellant, Juan Sergio Carreon Toledo, by and through counsel of record, Patrick F. McCann, respectfully moves this Honorable Court to GRANT Appellant’s First Motion for Extension in time to file Brief, and allow Appellant ninety (90) additional days, up to and including Monday, February 22, 2016, in which to file his opening brief in this appeal. In support of such motion, Appellant would show the Court the following:

(1) The current deadline for filing Appellant’s opening brief is Monday, November 23, 2015.

(2) Appellant’s counsel seeks an additional ninety (90) days, up to and including Monday, February 22, 2016, in which to prepare Appellant’s brief in this matter.

(3) The record on appeal and exhibits in this matter are voluminous. Further, the undersigned’s tentative review of the record indicates the presence numerous and complex meritorious issues necessitating a considerable amount of original research. Given the size the size of the record, as well as the number and complexity of the issues that may requiring briefing, additional time is necessary for a full and fair presentation on Mr. Toledo’s behalf.

(4) Immediately prior to and following October 21, 2015, the date on which the supplemental reporter’s record was filed in this Court, the undersigned attorney, who is a solo practioner, has been engaged in the following:

(A) Counsel sponsors to this Honorable Court that he is the lead attorney in eight (8) capital cases in which the death penalty has been imposed that are in various stages of the state and federal direct appeal and habeas and appellate habeas process that have required a considerable amount of counsel’s attention;

(B) Counsel was out of the office for the day on October 21, 2015, consulting an incarcerated client at the TDCJ-CID’s Telford Unit in New Boston, Texas, approximately 280 miles from counsel’s office in Houston;

(C) Counsel was out of the office on October 22, 2015, consulting with four clients on the TDCJ-CID’s Polunsky Unit Death Row on October 22, 2015;

(D) Counsel prepared and submitted the opening brief in Sam v. State, No. 14-13-00840-CR;

(E) Counsel prepared and submitted a direct appeal brief in a complex Identity Theft case to be submitted to the Court of Appeals in Tan v. State, No. 01-15-00511-CR;

(F) Counsel prepared and submitted a direct appeal brief in an Aggravated Robbery case submitted to the Court of Appeals in Villasenor v. State, No. 14-15-00255-CR;

(G) Counsel was prepared for and engaged in a hearing on a motion for new trial hearing in Susan Sciacca v. State, No. 1414753 (179th Dist. Ct., Harris Co, Tex., Oct. 27, 2015);

(H) Counsel was out of the office for a half day on October 27, 2015 consulting with incarcerated clients at the TDCJ-CID’s Darrington and Ramsey Units in Rosharon, Texas;

(I) In USA v. Kibert, et al, No. H-14-CR-00204 (S.D. Tex.), counsel has been preparing for a massive multi-count, multi- defendant federal Medicare fraud trial involving a Albanian organized crime group which has required a considerable amount of investigation, conferences with counsel for the co- defendant’s, and trial preparation. This trial is set for December 1, 2015, and it is anticipated to continue for approximately one to two weeks;

(J) In USA v. Hernandez-Martinez, et al, No. 4:15-CR-00203-3 (S.D. Tex.), counsel was preparing for pretrial conference and trial, in which counsel is representing one of several defendants accused in a large scale drug smuggling operation involving the “Los Zetas” Mexican drug cartel, in which several co- defendants have plead guilty and agreed to act as government witnesses, which, in turn, has drastically altered counsel’s defense strategy, requiring additional unanticipated

investigation and preparation, and which was continued at the last minute;

(K) In State v. Hieden, No. 15-05-5118-CR (359th Dist. Ct., Montgomery Co, Tex.) counsel has been engaged in investigation and pretrial preparation in a capital case in which the State is expected to seek the death penalty;

(L) In Melvin Straight v. State, No. 1450199 (174th Dist. Ct., Harris Ct, Tex.), the Trial Court in the case has scheduled and rescheduled on an ad hoc basis a hearing on the defendant’s motion for new trial. (M) Counsel was out of the office on November 19 and 20, 2015, for mandatory CLE for the TCDLA’s Capital Trial seminar.

(5) Appellant’s counsel HAS NOT sought nor received any prior extensions in this appeal.

(6) This extension is not being sought for purposes of undue delay or to harass and vex, but to protect Appellant’s rights in this matter and to ensure Appellant has his day in court. See, e.g., Coleman v. Alabama, 377 U.S. 129, 133 (1964) (defendant “entitled to have his day in court”).

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court will, in all things, GRANT this First Motion for Extension in Time to File Brief, allowing Appellant ninety (90) additional days, up to and including Monday, February 22, 2015, in which to file his brief in this appeal, and that the Court further GRANT any additional relief to which the Appellant may be justly entitled.

DATED this 23rd day of November, 2015.

Respectfully Submitted,

/s/ Patrick F. McCann State Bar No. 00792680 Law Office of Patrick F. McCann Suite 205, Rice Hotel 909 Texas Avenue Houston, Texas 77002 (713) 223-3805 eFax:

Counsel for the Appellant Juan Sergio Carreon Toledo

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing APPELLANT’S FIRST MOTION FOR EXTENTION IN TIME TO FILE BRIEF has been duly served upon counsel representing the State of Texas in this matter by either Hand Delivery, Prepaid United States Mail, E-mail, or through this Court’s Electronic Filing System on this 23rd day of November, 2015, addressed as follows:

Alan Curry, Esq. Assistant District Attorney Appellate Division Harris County, Texas 1201 Franklin, Sixth Floor Houston, Texas 77002

/s/ Patrick F. McCann Patrick F. McCann

Counsel for the Appellant Juan Sergio Carreon Toledo