No. AP-77,054

IN THE 

## Court of Criminal Appeals of Texas

RODNEY REED, Appellant , v. THE STATE OF TEXAS Appellee

. On Appeal from the 21st Judicial District Court, Bastrop County, Texas

STATE’S MOTION FOR ACCELERATED APPEAL

BRYAN GOERTZ Criminal District Attorney Bastrop County, Texas MATTHEW OTTOWAY Assistant Attorney General/ Assistant District Attorney Bastrop County, Texas Texas Bar No. 24047707 Post Office Box 12548, Capitol Station Austin, Texas 78711 Tel.: (512) 936-1400 Fax: (512) 320-8132 Email: matthew.ottoway@texasattorney general.gov Attorneys for the State AP-77,054 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 1/27/2015 3:43:17 PM Accepted 1/27/2015 3:51:31 PM

ABEL ACOSTA CLERK2 MOTION FOR ACCELERATED APPEAL I. Relevant Procedural Background Appellant, Rodney Reed, is a death-sentenced inmate with a presently-scheduled execution date of March 5, 2015. 3.CR.302–03. On July 14, 2014, Appellant sought addi tional DNA testing via Chapter 64

of the Texas Code of Criminal Procedure. 2.CR.74–143. The State opposed. 2.CR.161–229. A live hearing was held on November 25, 2014, at which time the trial court denied Appellant’s Chapter 64 motion.

4.RR.47. The denial was reduced to writing on December 12, 2014, and filed on December 16, 2014. 3.CR.342–48 . Appellant’s notice of appeal was filed on January 12, 2015. 3.CR.359–60. This Court received the reporter ’s record on January 15, 2015, and the clerk’s record on January 16, 2015. Thus, Appellant’s opening brief is due February 17, 2015 (February 15 is a Sunday and February 16 is Presidents’ Day). Tex. Code Crim. Proc. art. 64.05; Tex. Gov’t Code § 662.003(a)(3); Tex. R. App. P. 4.1, 38.6 , 71.3. The State’s responsive brief would then be due March 19, 2015, two weeks afte r the presentlyscheduled execution date. Te x. R. App. P. 38.6, 71.3.3 ARGUMENT I. The Court Should Accelerate This Appeal. Pursuant to Rule 38.6(d) of the Te xas Rules of Appellate Procedure, this Court may, “in the interests of justice, shorten th e time for filing

briefs and for submission of the case.” Tex. R. App. P. 38.6(d). Here, there are ample reasons to hasten the briefing and submission deadlines. The most obvious and pressing reason to shorten the applicable deadlines is Appellant’s upcoming ex ecution, now a little more than a month away. Utilizing the rule-based briefing deadlines would place the State’s response deadline beyond the presently-scheduled execution date, an obvious impossibility. Further, allowing Appellant the full thirty-day period for his opening brief would re quire an unduly short turnaround for the State’s responsive brief—nine days—in order to give the Court a minimum of a week to consider the appeal. Additionally, Appellant—and an y other death-sentenced, Texas inmate—alone controlled the timing of his Chapter 64 motion. Despite the fact that he was convicted and sentenced to death in 1998, and despite the fact that the statutory framework for postconviction DNA testing has been available since 2001, Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Sess. Law Serv. Ch. 2 (to be codified at Tex.4 Code Crim. Proc. arts. 64.01–64.05), Appellant filed his Chapter 64 motion fourteen years after his conv iction and on the day his initial

execution date was set. Compare 2.CR.74–143, with 2.CR.149–50. Indeed, the trial court found that A ppellant had not adequately proven that his Chapter 64 motion was “not made to unreasonably delay the

execution of sentence or admini stration of justice.” 3.CR.344; see Tex. Code Crim. Proc. art. 64.03(a)(2)(B). Accelerating this appeal would ensure that Appellant cannot “unrea sonably delay [his] execution” by utilizing the full time limit s permitted by rule.

PRAYER FOR RELIEF The State respectfully requests that the Court hasten the rulebased briefing deadlines. The State respectfully suggests that Appellant be permitted twenty days to file his opening brief and the State be allowed to respond fifteen days later; specifically, Appellant’s brief would be due February 5, 2015, and the St ate’s due on February 20, 2015. Respectfully submitted, BRYAN GOERTZ Criminal District Attorney Bastrop County, Texas /s/ Matthew Ottoway MATTHEW OTTOWAY Assistant Attorney General/5 Assistant District Attorney Bastrop County, Texas Texas Bar No. 24047707 Post Office Box 12548, Capitol Station Austin, Texas 78711 Tel.: (512) 936-1400 Fax: (512) 320-8132 Email: matthew.ottoway@texasattorney general.gov Attorneys for the State

CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing pleading was served by placing same in the United States mail, postage prepaid, on this the 27th da y of January, 2015, addressed and electronically sent to: Bryce Benjet Mark S. Chehi 40 Worth Street, Suite 701 Robert A. Weber New York, New York, 10013 Jason M. Liberi bbenjet@innocenceproject.org Nicole A. DiSalvo Andrew G. Mirsis Andrew F. MacRae S KADDEN , A RPS , S LATE , M EAGHER & L EVATINO P ACE LLP F LOM LLP 1101 S. Capital of Texas Hwy. On e Rodney Square, P.O. Box 636 Building K, Suite 125 Wilmington, Delaware 19899 Austin, Texas 78746 mchehi@skadden.com amacrae@levatinopace.com robert.weber@skadden.com /s/ Matthew Ottoway MATTHEW OTTOWAY Assistant Attorney General/ Assistant District Attorney Bastrop County, Texas