Johns, Jimmy Eugene ( 2015 )

PD-0641-15 PD-0641-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/27/2015 10:26:44 AM May 28, 2015 Accepted 5/28/2015 3:09:24 PM TEXAS COURT OF CRIMINAL APPEALS ABEL ACOSTA CLERK SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00233-CR JIMMY EUGENE JOHNS APPELLANT V. STATE OF TEXAS STATE _____________________________________________________________ FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NO. 1332690D _________________________________________________________________ APPELLANT’S MOTION TO EXTEND TIME TO FILE PETITION FOR DISCRETIONARY REVIEW COMES NOW, Appellant, Jimmy Eugene Johns, through the undersigned counsel, and moves the Court for an Order granting an extension of time of thirty (30) days in which Appellant may file his Petition For Discretionary Review pursuant to Tex. R. App. P. 10.5(b) and 68.2(3)(c). The appeal is from the Texas Court of Criminal Appeals, Second District of Texas, Fort Worth, in the matter styled Jimmy Eugene Johns, v. The State of Texas, Case No. 02-14-00233-CR. In support of his Motion, Appellant shows the Court as follows: 1. On April 1, 2014, Appellant initially brought an appeal from his felony conviction in Criminal District No. 1 of Tarrant County, in Case No. 1 1332690D, for driving while intoxicated. The appeal from the Criminal District Court was to the Texas Court of Criminal Appeals, Second District of Texas, Fort Worth, Case No. 02-14-00233-CR. There was no motion for rehearing or reconsideration filed in the Court of Criminal Appeals by either party, and no motions remain pending. 2. On March 2, 2015, the Texas Court of Criminal Appeals, Second District of Texas, Fort Worth issued an Abatement Order to consider questions surrounding Appellant’s right to appeal the conviction. 3. On April 23, 2015, the Texas Court of Criminal Appeals, Second District of Texas, Fort Worth, issued a Memorandum Opinion dismissing Appellant’s appeal of his conviction on procedural grounds. Because Appellant asserts that the Court of Appeals incorrectly applied the law under the facts of this case, Appellant now seeks discretionary review. 4. Pursuant to Tex. R. App. P. 68.2(a) Appellant’s Petition for Discretionary Review must be filed within thirty (30) days of April 23, 2015, or by May 23, 2015. The instant Motion is timely as the same is filed no later than fifteen (15) days after the last day for filing the Petition. Tex. R. App. P. 68.2(c). 2 5. Appellant seeks and additional thirty (30) days from May 23, 2015, or by June 23, 2015, in which to file his Petition for Discretionary Review. 6. Appellant’s counsel respectfully request the additional time due in order to properly review the record, schedule meetings with the client who remains incarcerated and otherwise adequately prepare the Petition for Discretionary Review. Appellant asserts that this matter raises substantial question of law, including applicable state procedures, state and constitutional rights, and a novel issue regarding the grant of permission to appeal in a contested plea bargain case. Accordingly, since Appellant’s liberty interests are at stake, the requested extension of time is warranted. 7. There have been no previous motions for extension of time filed in this matter regarding any issue. 8. The requested extension of time is not filed or interposed for any purpose of delay and the requested relief would not unduly prejudice any party in the case. WHEREFORE, premises considered, Appellant respectfully request that the Motion For Extension Of Time be granted and an order issue allowing Appellant an additional thirty (30) days, or until June 23, 2015, in 3 which to file his Petition for Discretionary Review, and for such other and further relief as may be available in law and equity. Respectfully submitted, /s/Gerald J. Smith, Jr. Gerald J. Smith, Jr. State Bar No. 24039316 Law Offices of G. J. Smith, Sr. PLLC Post Office Box No. 200395 Arlington, Texas 76006 Telephone: (817) 635-3100 Facsimile: (817) 635-3104 Email : attorney@gjsmithlaw.com ATTORNEY FOR APPELLANT CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned hereby certifies that according to the word count function of the computer program used to generate the document, the portions of the Appellant’s Motion which may be subject to the Rule contains 633 words total and that the text thereof is in 14pt Times New Roman font. /s/ Gerald J. Smith, Sr. Gerald J. Smith, Sr. 4 CERTIFICATE OF SERVICE The undersigned hereby certifies that, pursuant to Tex. R. App. P. 9.5(a), a true and correct copy of the foregoing Motion For Extension Of Time To File Petition for Discretionary Review has been sent to Charles M. Mallin, counsel of record for the State, c/o Tarrant County District Attorney’s Office, 401 West Belknap, Fort Worth, Texas 76196 through the Court’s E-Filing system, on this 26th day of May, 2015. /s/ Gerald J. Smith, Sr. Gerald J. Smith, Sr. 5