                                                                                         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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