No. PD-1233-14
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
DONNA GAYLE HOLCOMB
RECEIVED IN FILED IN Petitioner, COURT OF CRiWHAL APPEALS COURT OF CRIMINAL APPEALS JAN 13 2015 V. JAM09W THE STATE OF TEXAS Abel Acosta, Clerk Abel Acosta, Clerk
Respondent
PETITIONER'S MOTION TO EXTEND TIME TO FILE PETITION FOR DISCRETIONARY REVIEW AND REQUEST FOR THE COURT TO ORDER JEROME GODINICH TO RETURN PETITIONER'S FILE
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 Request for the Court to Order Jerome
Godinich to Return Petitioner's File and in support thereof would show the Court
the following: I. INCORPORATIONS
1. Petitioner incorporates by reference Petitioner's Motion to Strike
Jerome Godinich's Motion for Extension of Time, Motion to Proceed on Appeal
Pro Se, and Motion for the Court to Take Judicial Notice that Petitioner's Petition
for Discretionary Review was Not Due on September 27, 2014 and is Not Due
Until 30 Days After the First Court ofAppeals Rules on Petitioner's Last Timely
Filed Motion Or, In The Alternative, Motion to Proceed Pro Se on Appeal in the
Court of Criminal Appeals and Motionfor Extension of Time to File Petition for
Discretionary Review filed with this Court under the mailbox rule on or about
October 29, 2014.
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 ofjurisdiction. 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.
III. PETITIONER DOES NOT HAVE HER FILE
16. Petitioner must have her legal file and correspondence file from
Godinich to draft a proper PDR. Petitioner has turned Godinich into the State Bar
of Texas once before, without success, and has been hesitant to do it again, but
Godinich knows that he is no longer Petitioner's attorney and she must have her
file.
17. Petitioner will file a complaint against Godinich with the State Bar of
Texas by no later than Tuesday, January 13, 2015, if Godinich does not respond to
an email, fax and overnight certified letter all of which Petitioner will send to
Godinich no later Wednesday, January 8, 2015. This will be a last ditch effort by
Petitioner to terminate any ties she has to Godinich and get her file. IV. MOTIONS
18. The PDR is due on January 6,2015.
19. Petitioner has been granted one extension 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 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.
20. Petitioner respectfully requests that the Court extend the time for
filing the PDR for 45 days, allowing two weeks for Petitioner to obtain her file and
30 days for Petitioner to draft the PDR. This PDR will be the first PDR Petitioner
has ever drafted and a motion is much less time consuming and much less difficult
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No. PD-1233-14
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
DONNA GAYLE HOLCOMB
RECEIVED IN FILED IN Petitioner, COURT OF CRiWHAL APPEALS COURT OF CRIMINAL APPEALS JAN 13 2015 V. JAM09W THE STATE OF TEXAS Abel Acosta, Clerk Abel Acosta, Clerk
Respondent
PETITIONER'S MOTION TO EXTEND TIME TO FILE PETITION FOR DISCRETIONARY REVIEW AND REQUEST FOR THE COURT TO ORDER JEROME GODINICH TO RETURN PETITIONER'S FILE
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 Request for the Court to Order Jerome
Godinich to Return Petitioner's File and in support thereof would show the Court
the following: I. INCORPORATIONS
1. Petitioner incorporates by reference Petitioner's Motion to Strike
Jerome Godinich's Motion for Extension of Time, Motion to Proceed on Appeal
Pro Se, and Motion for the Court to Take Judicial Notice that Petitioner's Petition
for Discretionary Review was Not Due on September 27, 2014 and is Not Due
Until 30 Days After the First Court ofAppeals Rules on Petitioner's Last Timely
Filed Motion Or, In The Alternative, Motion to Proceed Pro Se on Appeal in the
Court of Criminal Appeals and Motionfor Extension of Time to File Petition for
Discretionary Review filed with this Court under the mailbox rule on or about
October 29, 2014.
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 ofjurisdiction. 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.
III. PETITIONER DOES NOT HAVE HER FILE
16. Petitioner must have her legal file and correspondence file from
Godinich to draft a proper PDR. Petitioner has turned Godinich into the State Bar
of Texas once before, without success, and has been hesitant to do it again, but
Godinich knows that he is no longer Petitioner's attorney and she must have her
file.
17. Petitioner will file a complaint against Godinich with the State Bar of
Texas by no later than Tuesday, January 13, 2015, if Godinich does not respond to
an email, fax and overnight certified letter all of which Petitioner will send to
Godinich no later Wednesday, January 8, 2015. This will be a last ditch effort by
Petitioner to terminate any ties she has to Godinich and get her file. IV. MOTIONS
18. The PDR is due on January 6,2015.
19. Petitioner has been granted one extension 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 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.
20. Petitioner respectfully requests that the Court extend the time for
filing the PDR for 45 days, allowing two weeks for Petitioner to obtain her file and
30 days for Petitioner to draft the PDR. This PDR will be the first PDR Petitioner
has ever drafted and a motion is much less time consuming and much less difficult
to draft and Petitioner is fearful that she will need all the documents in her file in
order to draft her PDR.
21. Petitioner moves the Court to order Godinich to return her file (legal
and correspondence).
1Petitionerdid 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. 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. Petitioner needs her file from Godinich.
24. Pursuant to Tex. R. App. P. 48.4, Godinich was required to forward a
copy of the opinion and judgment on August 28, 2014 by the First Court in
Petitioner's case to her via certified mail. Godinich has not sent a copy by any
method, nor has he informed Petitioner of anything that has occurred in her case,
and he has not returned Petitioner's file.
V. PRAYER
Wherefore Premises Considered, Petitioner requests that the Court grant
Petitioner's Motion for Extension of Time to File Petition for Discretionary
Review ("PDR") and Request for the Court to Order Jerome Godinich to Return
Petitioner's File and to grant Petitioner all other relief to which she may show
herselfjustly entitled. Respectfull#-6uf>mitted,
By: _r[(5]/W^^ TONNA 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 January 6, 2015 to the following:
DONNA HOLCOMB (PRO SE)
Harris County District Attorney Via U.S. Mail 1201 Franklin Houston, Texas 77002