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.
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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).
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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
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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.
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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.
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Johns, Jimmy Eugene
Combined Opinion