Robert Martinez, Jr. v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
July 28, 2015
No. 04-14-00412-CR
Robert MARTINEZ, Jr.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR6698
Honorable Maria Teresa Herr, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Appellant’s appeal was dismissed by this court on August 6, 2014 pursuant to Texas Rule
of Appellate Procedure 25.2(d). 1 Although the Court of Criminal Appeals granted extensions of
time in which to file a petition for discretionary review, appellant did not do so, and this court’s
mandate issued on March 2, 2015. On May 11, 2015, appellant filed a motion to withdraw the
appellate record from this court pursuant to Texas Rule of Appellate Procedure 12.4 for the
purpose of filing a writ of habeas corpus. 2 On May 20, 2015, this court denied the motion.
On June 22, 2015, appellant filed a second motion to withdraw records in which he states
(1) he is indigent, (2) he needs the record to raise allegations of ineffective assistance of counsel
and various “access to court” violations such as the handling and filing of his mail and access to
the law library writ room, and (3) he seeks exculpatory evidence his trial counsel and the State
failed to provide. Appellant contends there are numerous controverted, previously unresolved
1
“The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been
made part of the record under these rules.” TEX. R. APP. P. 25.2(d).
2 Rule 12.4 allows “[t]he clerk [to] permit the record or other filed item to be taken from the clerk’s office at any
time, on [certain] conditions . . . .” TEX. R. APP. P. 12.4.
facts that demand resolution. He also contends he has not filed an application for writ of habeas
corpus under any section of Article 11 of the Texas Code of Criminal Procedure in this case.
Appellant is directed to Texas Code of Criminal Procedure 11.06, which provides the
method for filing a post-conviction application for writ of habeas corpus with the Texas Court of
Criminal Appeals. Article 11.07 provides in pertinent part that
An application for writ of habeas corpus filed after final conviction in a
felony case, other than a case in which the death penalty is imposed, must be
filed with the clerk of the court in which the conviction being challenged was
obtained, and the clerk shall assign the application to that court. When the
application is received by that court, a writ of habeas corpus, returnable to the
Court of Criminal Appeals, shall issue by operation of law.
TEX. CRIM. PROC. CODE ANN. § art. 11.07, § 3(b) (West 2015).
With regard to controverted unresolved facts, Article 11.07 provides as follows:
If the convicting court decides that there are controverted, previously
unresolved facts which are material to the legality of the applicant’s confinement,
it shall enter an order within 20 days of the expiration of the time allowed for the
state to reply, designating the issues of fact to be resolved. To resolve those issues
the court may order affidavits, depositions, interrogatories, additional forensic
testing, and hearings, as well as using personal recollection. The state shall pay
the cost of additional forensic testing ordered under this subsection, except that
the applicant shall pay the cost of the testing if the applicant retains counsel for
purposes of filing an application under this article. The convicting court may
appoint an attorney or a magistrate to hold a hearing and make findings of fact.
Id. art. 11.07, § 3(d).
As we stated in our order dated May 20, 2015, an indigent defendant ordinarily is not
entitled to a free copy of his trial transcript for purposes of filing a postconviction habeas
application. In re Strickhausen, 994 S.W.2d 936, 937 (Tex. App.—Houston [1st Dist.] 1999,
orig. proceeding). A free record is available for that purpose only if the defendant shows the
habeas corpus application is not frivolous and there is a specific need for the trial records that are
sought. In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998, orig.
proceeding). We do not believe appellant has made any such showing in this second request for
a free record; therefore, his request is DENIED.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 28th day of July, 2015.
___________________________________
Keith E. Hottle
Clerk of Court