Johns, Jimmy Eugene

• Court: Court of Appeals of Texas
• Decided: May 28, 2015
• Docket: PD-0641-15
• Status: Published

Opinion

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.