Elder, Damian ( 2015 )

PD-0260-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/26/2015 7:48:01 PM May 28, 2015 Accepted 5/28/2015 2:01:50 PM ABEL ACOSTA CLERK NO. PD-0260-15 DAMIAN ELDER * IN THE COURT OF CRIMINAL V. * APPEALS OF TEXAS THE STATE OF TEXAS * AT AUSTIN, TEXAS __________________________ ON PETITION FOR DISCRETIONARY REVIEW IN CAUSE NO. 05-13-01111-CR FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT AT DALLAS, TEXAS ___________________________ SECOND MOTION TO EXTEND THE TIME FOR FILING THE APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUDGES OF SAID COURT: COMES NOW the Appellant, by and through his attorney of record, Jeff P. Buchwald, and respectfully requests that the time for the filing of the Appellant’s petition for discretionary review in the above-styled and numbered cause be extended. In support of this motion the appellant would show the court the following: I. In Cause Nos. F-12-53551 (Dallas County), the appellant was indicted for Aggravated Robbery/DW/2nd in violation of section 29.03 of the Texas 1 Penal Code. The Appellant plead not guilty and a jury trial was held on July 10, 2013. The jury found the Appellant guilty of the lessor included offense of Aggravated Assault/DW on July 12, 2013. The Appellant elected to have the trial court assess punishment. On July 12, 2013 the trial court assessed punishment at 40 years. A motion for new trial and notice of appeal was filed and/or perfected on August 7, 2013. An amended motion for new trial was filed on August 16, 2013. A hearing on Appellant’s motion for new trial was held and the motion was denied as to all grounds by the trial court on September 13, 2013. The trial court’s certification of defendant’s right to appeal was signed by the trial court on August 7, 2013. II. The Court of Appeals for the Fifth District at Dallas, Texas on February 11, 2015 affirmed the trial court’s judgment in F12-53551-K and overruled Appellant’s four points of error. III. The initial deadline for filing the appellant’s Petition for Discretionary Review was March 13, 2015. One previous extension has been granted to Appellant. The present deadline for filing of the appellant’s Petition for Discretionary Review was May 12, 2015. Appellant respectfully requests an 2 extension of time, pursuant to Texas Rule of Appellate Procedure 68.2(c), of 15 days from the current deadline - until May 27, 2015 in which to file his Petition. IV. One previous extension of time has been granted. V. The appellant would show the Court that a reasonable explanation exists for the requested extension. The facts on which the appellant relies to reasonably explain the need for the extension are as follows: The appellant recently retained counsel to handle said petition rather than hiring another attorney or filing said petition pro se. Said attorney needs the additional time to file his Petition for Discretionary Review because of the recent hiring of said attorney and because said attorney has been involved in preparing and filing another appellant brief in Vincent Bertrand v. State of Texas – 05-14-01368-CR. Said brief was filed with the 5th Court of Appeals on May 20, 2015. Said attorney has also been preparing for trial in F12712262 (burglary habitation) and F1440162 (theft) in State of Texas v. Alexander Beltran – which are set for jury trial on May 26, 2015. Mr. Buchwald is also working on additional briefs and writs that are due within the next 30 days (Jerry Chandler v. State of Texas – 05-15- 3 00598-CR which is set May 26, 2015 - motion for new trial; State of Texas v. Daniel Mavero 05-14-01097-CR - appellant’s brief due; as well as other pending appeals). Counsel is also handling over 50 other pending cases currently set in county, district and federal court for pleas, hearings and trials. Finally, counsel’s wife recently had dental implant surgery on May 18, 2015. Cousnel has helped his wife with getting through the procedure as well as with child care and other household necessities. Appellant is filing his Petition for Discretionary Review along with this motion for extention and requests an additional 15 days from the current due date within which to file said Petition for Discretionary Review. WHEREFORE PREMISES CONSIDERED, the Appellant respectfully requests that the time for the filing of the appellant’s Petition for Discretionary Review be extended to May 27, 2015. Respectfully submitted, /S/ Jeff P. Buchwald Jeff P. Buchwald Attorney at Law State Bar No. 03293300 305Spring Creek Village #538 Dallas, Texas 75248 Buchwald7@msn.com (972) 788-5016 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this motion was sent by certified mail, return receipt requested and via E-file.Texas.gov, to the State Prosecuting Attorney, P.O. Box 12405 Austin, Texas 78711 and hand delivered and by E-file.Texas.gov to Susan Hawk, Criminal District Attorney of Dallas County, Texas 133 N. Industrial Boulevard, LB-19 Dallas, Texas 75207-4399 on the 26th day of May, 2015. /S/ Jeff P. Buchwald Jeff P. Buchwald 5