No. PD-1233-14
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
DONNA GAYLE HOLCOMB
Petitioner, i^EuL.
GOURTOFCRliNALAPPEAlB
V' - MAR 30 2015
THE STATE OF TEXAS ;,'_ Ab@? ACOSti, GiSfk
Respondent
PETITIONER'S MOTION FOR EXTENSION OF TIME TO FILfflLED IN
PETITION FOR DISCRETIONARY REVIEW AND NOTlCECXDiTEeO^^AL APPEALS
OF PETITION FOR DISCRETIONARY REVIEW Ar_., „„
APR 01 201b
; Abol Aooota, Clerk
On Appeal from the First Court of Appeals in
Cause No. 01 -08-00337-CR and from the 230th District Court
of Harris County, Texas in Cause No. 1141352
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL
APPEALS:
COMES NOW, DONNA HOLCOMB, Petitioner in the above-entitled
appeal and files this, her Motion for Extension of Time to File Petition for
Discretionary Review ("PDR") and Notice of Filing of Petition for Discretionary
Review and in support thereof would show the Court the following:
I. INCORPORATIONS
1. Petitioner incorporates by reference Petitioner's Motion to Extend
Time to File Petition for Discretionary Review and Requestfor the Court to Order
Jerome Godinich to Return Petitioner's File filed with this Court under the
mailbox rule on or about January 6, 2015.
II. SUMMARY
2. Petitioner was convicted of second degree theft on or about April 14,
2008 in Cause No. 1141352 styled State of Texas v. Donna Gayle Holcomb in the
230th District Court of Harris County, Texas. Petitioner was sentenced to 11 years
in the Texas Department of Criminal Justice ("TDCJ"). Petitioner appealed the
jury verdict on both guilt and punishment.
3. On February 16, 2012, the First Court of Appeals ("First Court")
affirmed the jury verdict as to guilt but overturned and remanded the case to the
trial court for a new punishment trial. The First Court abated the appeal on or
about March 22, 2012.
4. On May 2, 2012, Jerome Godinich ("Godinich") was appointed as
Petitioner's attorney on appeal in the First Court and for the re-trial of the
punishment phase. Godinich spoke with Petitioner once on the phone, saying he
would call her back later to make an appointment with Petitioner, and never called
her back for two years.
5. On April 8, 2014, the First Court reinstated the appeal.
6. On April 30, 2014, at Petitioner's only meeting with Godinich in two
years, Godinich tried to get Petitioner to let the appeal and the retrial of the
punishment phase go arguing that the First Court of Appeals had lost jurisdiction
and the retrial of the punishment phase was unnecessary and should never be had.
7. On May 8, 2014, due to Godinich lack of response to Petitioner's
requests, Petitioner was forced to file a pro se Motion for Extension of Time which
was granted by the First Court. Further, Petitioner also included a notice that she
was terminating Godinich as her attorney. At that point, the First Court of Appeals
had recognized Petitioner's pro se status, however, the First Court allowed
Godinich to continue effectively allowing Petitioner to have hybrid representation,
something Petitioner did not want.
8. On August 28, 2014, the First Court withdrew their original opinion
and judgment and reissued a new opinion and judgment which restarted the
appellate deadlines for moving for rehearing.
9. On September 12, 2014, Petitioner filed a Motion for Extension of
Time to File Motion for Rehearing and/or Motion for En Banc Reconsideration
and Motion To Proceed on Appeal Pro Se with the First Court under the mailbox
rule. Unbeknownst to Petitioner at the time, Godinich, without authority from
Petitioner, filed a motion to extend time to file a PDR with this Court on
September 12, 2014, when a PDR was not even due until September 27, 2014.
10. On October 30, 2014, the First Court denied Petitioner's motion to
proceed pro se because Godinich had filed a PDR with this Court and the First
Court would not allow Petitioner to proceed pro se in the First Court while she was
represented by counsel in this Court.
11. On or about November 7, 2014, this Court terminated Godinich and
allowed Petitioner to proceed pro se on appeal.
12. On or about November 13, 2014 and after Petitioner received
notification of that determination, Petitioner again filed, under the mailbox rule,
and urged a motion for extension of time to file a motion for rehearing with the
First Court.
13. On December 4, 2014, although Petitioner did not receive notification
until later, the First Court denied Petitioner's motion for extension of time to file a
motion for rehearing for lack of jurisdiction.
14. It is undisputed that Petitioner has argued that Godinich refused to
communicate with her and has not done so since April of 2014 in spite of several
emails and some faxes requesting that he respond to her and move to withdraw.
Petitioner believes that her motion for extension of time to the First Court were
timely and the First Court had jurisdiction.
15. Godinich filed a motion and a PDR with this Court without authority,
deliberately leaving out constitutional issues discussed with him at Petitioner's one
and only meeting in April of 2014.
16. On or about January 9, 2015, this Court granted Petitioner an
extension of time to obtain her file from Godinich and prepare and file the PDR.
When Petitioner received her filed from Godinich, it was approximately 3/4 of an
inch think with only copies of filed documents. All the alleged research that
Godinich said he did (e.g., caselaw, notes, etc.) was not there, even though
Godinich had already been paid by the county for his representation of Petitioner.
Petitioner's file from Godinich was no help at all.
17. Petitioner has worked on her PDR, but the constitutional issues were
hard to find. Petitioner does not have West legal research.
18. The week prior to March 9, 2015, Petitioner received a subpoena to
testify in a civil suit beginning on March 9, 2015. Petitioner was required to stay
at the courthouse for two days and was only released in the later afternoon on
March 10, 2015. Petitioner had planned to work all day and finish the PDR on
Monday. After Petitioner was released from the subpoena, Petitioner was not able
to work on the PDR for some time after March 10, 2015.
19. Petitioner could not have filed her PDR on March 9, 2015 as she was
at the Galveston County Courthouse under subpoena and she was not released for
two days.
III. MOTIONS
20. The PDR is was due on March 9, 2015.
21. Petitioner has been granted two extensions for 60 days, however,
Petitioner's motion for extension of time in the First Court was not denied until
December 4, 2014.' The only reason that the First Court gave an order that on
October 30, 2014, that it could not rule on Petitioner's motion for extension of time
to file a motion for rehearing was because Petitioner was represented by Godinich
in this Court. This Court allowed Petitioner to proceed pro se in early November,
but by then, the First Court alleges it lost jurisdiction.
IV. ARGUMENTS AND AUTHORITIES
22. This Court has the authority to grant Petitioner's relief in the interest
of justice. Petitioner's request for an extension of time to file a PDR is governed
by Tex. R. App. P. 10.5(b).
23. Petitioner is grateful for this Court allowing her to proceed pro se on
appeal and for the two extensions of time this Court has granted.
' Petitioner did not receive notification of this denial until the week of December the 8th, and Petitioner's
husband fell and broke his leg on December 8, 2014. He has had a subsequent surgery and his
recuperation has been a factor in Petitioner's time.
24. Petitioner asks the Court to take notice that she has now filed her PDR
with the constitutional issues of Double Jeopardy included. Petitioner suggests to
the Court that there has never been another case like Petitioners wherein post-
acquittal fact-finding testimony was used to convict Petitioner in the guilt or
innocence phase of a lesser included offense. Petitioner requests that the Court
consider her petition.
25. Petitioner respectfully requests that the Court extend the time for
filing the PDR for 15 days. Tex. R. App. P. Rule 68.2(c) reads in part,
"...Extension of Time. The Court of Criminal Appeals may
extend the time to file a petition for discretionary review if a
party files a motion complying with Rule 10.5(b) no later than
15 days after the last day for filing the petition..."
26. Petitioner moves the Court to extend the deadline for filing her PDR
for 15 days until March 24, 2015 and to take notice of the filing of Petitioner's
PDR filed simultaneously with this motion.
V. PRAYER
Wherefore Premises Considered, Petitioner requests that the Court grant
Petitioner's Motion for Extension of Time to File Petition for Discretionary
Review and Notice of Filing of Petition for Discretionary Review and to grant
Petitioner all other relief to which she may show herselfjustly entitled.
Respectfully submitted
DONNA HOLCOMB (PRO SE)
4906 Scott Reef Dr.
Bacliff, Texas 77518
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served
March 24, 2015 to the following:
DONNA HOLCO
Harris County District Attorney Via U.S. Mail
1201 Franklin
Houston, Texas 77002
No. PD-1233-14
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
DONNA GAYLE HOLCOMB
Petitioner,
V.
THE STATE OF TEXAS
Respondent.
VERIFICATION OF DONNA HOLCOMB FOR PETITIONER'S
MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR
DISCRETIONARY REVIEW AND NOTICE OF FILING OF
PETITION FOR DISCRETIONARY REVIEW
STATE OF TEXAS
COUNTY OF GALVESTON
Before me, the undersigned authority, a Notary Public, on this day
personally appeared DONNA HOLCOMB, who being duly sworn upon her oath
states:
"I, Donna Gayle Holcomb, am more than eighteen years of age. I am
capable and competent to make this verification. 1 have never.been convicted of a
crime other than minor misdemeanors, such as traffic tickets, and this case which
is on appeal with the Texas Criminal Court of Appeals. I have read Petitioner's
Motion for Extension of Time to File Petition for Discretionary Review and
Notice of Filing of Petition for Discretionary Review and all statements made by
me are true and correct and are made within my personal knowledge."
DONNA HOIfCOMB
STATE OF TEXAS
COUNTY OF GALVESTON
SUBSCRIBED AND SWORN TO before me, the undersigned Notary
Public, on this the Q}P day of March, 20]5.
iii>* a m ri 7i * "* — —'• {ota^ Publ ounty and
LAUREN ORTIZ State
My Gpmmission Expires
May 23. 2017
Holcomb, Donna Gayle
Combined Opinion