ACCEPTED 13-15-00169-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 10/1/2015 3:34:22 PM Dorian E. Ramirez

CLERK NO. 13-15-00169-CR IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI AND EDINBURG, TEXAS
THE STATE OF TEXAS Appellant V. MICHAEL MAURER Appellee



### APPELLEE'S SECOND AMENDED BRIEF

NO ORAL ARGUMENT REQUESTED JOHN C. CONNOLLY 1004 Congress, 3rct Floor Houston, TX 77002 (713) 807-1800 (832) 575-3350 Fax State BarNo. 04702000 johnconnolly@ymail.comAPPELLEE: IDENTITY OF PARTIES AND COUNSEL Michael Maurer, represented by Trial and Appellate Counsel: John C. Connolly 1

004 Congress, 3rct Floor Houston, TX 77002 APPELLANT: The State ofTexas, by the DistrictAttorney for Nueces County, representedby Appellate Counsel: A. CliffGordon, Asst. Dist. Atty. 901 Leopard St., Room 206 Corpus Christi, TX 78401 Trial and Appellate Counsel: Mark Skurka, DistrictAttorney Dulce SalazarValle, Asst. Dist. Atty. 901 Leopard St., Room 206 Corpus Christi, TX 78401



# .. 11TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL................................ii INDEX OF AUTHORITIES..................................................

### .iv STATEMENT OF THE CASE................................................v ISSUE PRESENTED............................................................vi STATEMENT OF FACTS......................................................l SUMMARY OF THE ARGUMENT..........................................2 ARGUMENT.......................................................................3 

### PRAYER............................................................................4 CERTIFICATE OF**CO~LIANCE**............................................**~** CERTIFICATE OF SERVICE...................................................5

111INDEX OF AUTHORITIES CASES: 

### State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 

### 2014, no.pet)

lV1. STATEMENT OFTHE CASE Defendant concurs withthe State's STATEMENT OF THE CASE.

vISSUE PRESENTED Defendant concurs withthe State's ISSUE PRESENTED

VlSTATEMENT OF FACTS 

### Defendant generally concurs with the State's STATEMENT OF FACTS. However, the State fails to note that the Defendant's Motion to Dismiss was filed subsequentto the setting ofthe case for trial by the COURT.

1SUMMARY OF THE ARGUMENT The case was set for trial by the trial court. There is no evidence in the record that the District Attorney's Office had any involvement in the case being set for trial. It is therefore safe to assume that but for the action of the trial court, this case would remain in an inactive status indefinitely into the distant future. The State initiated the prosecution, and the State has not only the burden ofproof, but the burden to move forward with the evidence. The State failed to meet its burden, but yet now asks the Court of Appeals to reward this behavior over 8 years after initiating this prosecution. The Defendant urges this Court to reject the rationale and holding in State v. Jolly, 

### 446 S.W. 

### 3rd 613 (Tex. App. Amarillo 

### 2014, no.pet) and affirm the trial court's order dismissing the charges.



### 2.

### ARGUMENT The trial court correctly dismissed the charges against Defendant on speedy trial grounds. Two (2) factual matters differentiate State v. Jolly, 446 

### S.W. 3rd 613 

### (Tex. App. Amarillo 2014, 

### no.pet) from the case at hand: 1. 

### Defendant offered sworn, unrebutted testimony regarding the prejudicial results ofthe 8year delay. No such testimony was offered inJolly. 2. 

### In Jolly, 

### the State , apparently recognizing its negligence in the delay of prosecution, was responsible for setting the case on the trial docket. In the case at hand, no such evidence exists. But for the trial court's initiative in setting the case for trial, this case would remain injudicial limbo.



### 3.PRAYER Forthese reasons, Defendanturges this Courtto reject the rationale and holding m State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 2014, no.pet) and affirm the trial court's order dismissing the charges.

JOHN C. CONNOLLY 1004 Congress, 3rct Floo Houston, TX 77002 (713) 807-1800 (832) 575-3350 Fax State BarNo. 04702000 johnconnolly@ymail.com Counsel for Appellee
CERTIFICATE OF COMPLIANCE According to the word count of the computer program used to prepare this document, it contains 621 words.

4.CERTIFICATE OF SERVICE I certify that on September 29, 2015, I faxed a true copy ofthis Amended Brieftothe following counsel: A. CliffGordan, (361) 888-0399. Attorney for Appellee

5.