Martinez, Jose Guadalupe ( 2015 )

PD-0175-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/18/2015 11:45:53 PM
Accepted 6/19/2015 2:33:00 PM
ABEL ACOSTA
CLERK
NO. PD-0175-15
To The Texas Court of Criminal Appeals
Austin, Texas
JOSE GUADALUPE MARTINEZ,
Defendant-Appellant,
vs.
THE STATE OF TEXAS,
Plaintiff-Appellee.
On Appeal From The 38th Judicial District Court
Real County, Texas
Trial Court No. 2012-1132-DR; Appeal No. 04-12-00739-CR
MOTION FOR REHEARING
NANCY B. BAROHN
1202 South Alamo Street
San Antonio, Texas 78210
(210) 226-4263
(913) 302-6708 (cell phone)
Texas Bar Number: 01796500
nbb@airmail.net
June 19, 2015
Attorney for Mr. Jose Guadalupe
Martinez, Petitioner-Appellant
MOTION FOR REHEARING
NOW COMES JOSE GUADALUPE MARTINEZ, by and through his
undersigned attorney, and pursuant to TEX. R. APP. P. 79.2, respectfully moves this
Honorable Court to rehear its denial of his Petition For Discretionary Review.
I.
Short Statement Of The Procedural History
Jose Guadalupe Martinez was charged in the 38th Judicial District Court with
two counts of sexual assault of a child, and tried his case to a jury in Uvalde County,
Texas, before the Honorable Camille DuBose. Mr. Martinez was convicted at trial
and was sentenced to a total term of 15 years’ confinement. Mr. Martinez appealed
his case to the Fourth Court of Appeals which affirmed his convictions on October
29, 2014. Mr. Martinez sought discretionary review in this Court, complaining that
the Fourth Court declined to address his constitutional claims, and requested a
remand under TEX. R. APP. P. 47.1. This Court denied Mr. Martinez’s Petition on
June 3, 2015.
We seek rehearing for the reasons which follow.
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II.
BASIS FOR REHEARING
This Court Should Reconsider Its Decision To Deny Discretionary Review
Because Mr. Martinez’s Constitutional Complaints Are Substantial, And He Did
Not Procedurally Default These Complaints Under TEX. R. APP. P. 38.9.
A. Mr. Martinez’s Case In The Trial Court.
At trial, Mr. Martinez repeatedly sought to cross-examine the complainant and
his father, and to question complainant’s counselor from Pathways–first on State
evidentiary grounds, and when those objections were denied, on constitutional
grounds. In objecting in the trial court, and in the bills of exception, counsel cited
numerous state cases as a basis for admissibility, and cited numerous rules under the
Texas Rules of Evidence. The colloquies with the trial court were lengthy, and
repetitive, as the arguments were largely the same with each witness, and involved
the same categories of evidence. In these effort to cross-examine or otherwise
question these witnesses, counsel made multiple objections: 1) that specific evidence
was admissible to correct a false impression left by the complainant and his father,
as they were permitted to portray themselves in front of the jury in a false light, their
testimony unchallenged in any substantial way; 2) that specific evidence was
contextual; 3) that specific evidence was admissible to show the motive and bias of
the complainant; 4) specific evidence that the complainant was suffering from a
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mental illness both prior to, and during the time, that he was at Pathways where he
was being treated for bi-polar disorder which caused him to have rages; and, 5)
specific evidence as to the consequence of these rages, where complainant was
frequently punished at the juvenile facility, which included being placed in physical
restraints–and he did not want to be there–relevant to motive. .
Mr. Martinez did not waive any of his objections at trial under either state
evidentiary rules, or on constitutional grounds.
B. Mr. Martinez’s Appeal.
In his brief on appeal, Mr. Martinez set out each of the questions he wished to
ask the three witnesses, the basis for admissibility under the Texas rules argued in the
trial court, and the court’s rulings. Appellant’s Brief at 10-22. The trial court
permitted Mr. Martinez to pursue none of the lines of inquiry described above, under
any theory of law–as a matter of Texas law, or federal constitutional law. Appellant’s
Brief at 10-35. This was the basis of Mr. Martine’s overarching constitutional
complaints. Appellant’s Brief 22-35. In his brief, Mr. Martinez raised his complaints
in two points of error–one seeking review under TEX. R. APP. P. 44.2(a), the other
under TEX. R. APP. P. 44.2(b). In each of these points of error, Mr. Martinez cited
Texas decisions on point–factually and legally–which pertained to the specific areas
of inquiry he had sought to explore, and by citation to the record.
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In affirming Mr. Martinez’s convictions, the Fourth Court of Appeals declined
to reach his constitutional issues on the ground that they were procedurally defaulted.
Martinez v. State, 2014 WL 5464157 at *9-10 (Tex.App. - San Antonio, October 29,
2014). Particularly, the Court declined to address Mr. Martinez’s larger and over-
arching constitutional claims because he failed to argue that any state evidentiary rule
arbitrarily deprived him of the opportunity to offer otherwise relevant and reliable
evidence that was vital to his defense. Id. at *11. Further, the Court noted that,
though Mr. Martinez cited and discussed authority for “broad evidentiary
propositions” that the evidence he sought to offer was admissible, he failed to explain
“why each ruling made by the trial court was “clearly erroneous.” Id. (emphasis
added). A failure to explain how each ruling was clearly erroneous, was “a necessary
prerequisite to prevail on his due process claim.” Id.
C. Mr. Martinez’s Brief Should Have Been Liberally Construed,
And His Arguments And Authorities, Taken In Context And
As A Whole, Should Not Bar Review Of His Constitutional
Claims.
Under TEX. R. APP. P. 38.9, briefs are to be liberally construed. Briefs are
meant to “acquaint the court with the issues in the case and to present argument that
will enable the court to decide the case”. Substantial compliance is sufficient.
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Even if inartful, Mr. Martinez’s brief was sufficiently specific to acquaint the
court with the issues and arguments–both as a matter of state and federal law. In the
brief, Mr. Martinez specifically set out the questions he wished to ask, the basis of
admissibility, and the trial court’s rulings. These questions–of complainant, his
father, and his counselor–were directed at the same set of facts, and fell into
categorical lines of inquiry. Mr. Martinez set out numerous Texas cases involving
similar facts, where similar–if not identical–arguments were made in the lower courts,
in which it was determined that the trial court’s decision to exclude evidence was an
abuse of discretion. Indeed, Mr. Martinez made detailed and extensive arguments
under the Texas rules of evidence citing, inter alia, Poitier v. State, 68 S.W.3d 657,
663-65 (Tex.Crim.App. 2002) (a constitutional violation may arise where court
applies state law to exclude otherwise relevant and reliable evidence which “forms
such a vital portion of the case that exclusion effectively precludes the defendant
from presenting a defense”) and Simmons v. State, 548 S.W.2d 386, 388
(Tex.Crim.App. 1997) (constitutional violation of the first order where the defendant
was deprived of the opportunity to offer any testimony regarding possible motives
or bias). Appellant’s Brief at 24.
Counsel did not merely cite these cases in the abstract, but argued case law as
applied to the trial court’s rulings. See Appellant’s Brief at 24 (“Contrary to the
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extreme limitations imposed by the trial court here, other courts have permitted the
defense to offer evidence of bias, motive, and interest on nearly identical facts.”);
Appellant’s Brief at 30 [after a lengthy discussion of various Texas cases] (“Because
the trial court deprived Mr. Martinez of any cross-examination as described here, it
misapplied Texas’s Rules of Evidence, and deprived Mr. Martinez of his state and
federal constitutional rights to present a meaningful defense through confrontation
and cross-examination.”); Appellant’s Brief at 33 (“In Texas, beyond constitutional
mandates, the admissibility of evidence is determined under the Texas Rules of
Evidence, which sets out a number of inter-related rules [citing rules and arguing
relevant decisions under the rules and applicable to the basis of Mr. Martinez’s many
objections]). After setting out numerous Texas cases finding that various trial courts
erred by excluding similar evidence on similar facts, Mr. Martinez pointed out that:
. . . his defense counsel believed it was necessary to make
lengthy and detailed proffers setting out both the larger, and
smaller, circumstances and background as a basis for cross-
examination. While defense counsel made clear that it was not
her intent to go into all of the instances documented and
described, there were numerous areas which the defense should
be permitted to explore. Though the defense provided the court
with a deep bench of facts and circumstances as proper subjects
of cross-examination, the jury heard not a word of any of this.
Instead, the jury heard only the State’s version of
events–sanitized, and presented in a vacuum.
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Under these facts and circumstances, the trial court’s
severe limitations on Mr. Martinez’s right to cross-examine the
State’s witnesses, and to present a defense, was “outside the
zone of reasonable disagreement,” as its application of Texas
law was unreasonable. Montgomery v. State, 810 S.W.2d 372,
391 (Tex.Crim.App. 1990). Though presented with evidence
through testimonial bills, records, proffers, case law, and
numerous legal arguments, the court afforded the defense no
latitude at all in its efforts to defend Mr. Martinez fully and
effectively. Here, the trial court abused its discretion to admit
or exclude evidence by acting arbitrarily and unreasonably,
without reference to guiding rules and principles. Fox v. State,
supra, 115 S.W.3d at 558, citing Lyles v. State, 850 S.W.2d,
497, 502 (Tex.Crim.App. 1993). The court’s severe limitations
on cross-examination, and evidence it would not permit through
a defense witness, was error.
Appellant’s Brief at 37-8 (emphasis added).
Simply put, we contend that Mr. Martinez’s arguments in his brief were
sufficient under TEX. R. APP. P. 38.9 to apprise the Court of the issues in the case, and
his arguments and authorities under Texas law were sufficient enough to support his
larger argument–that the trial court erroneously applied the rules of evidence in each
particular instance so as to exclude admissible evidence to such an extent that it
effectively prevented Mr. Martinez from presenting his theory of the defense.
Though the Fourth Court found that the cases discussed by Mr. Martinez were simply
“broad propositions of law,” they were actually focused on each of the categories of
evidence the court excluded with each of the witnesses. In hindsight, it would have
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been the better practice to have put these same cases under each of the particular
objections and arguments described in the brief, but counsel structured it differently
because the evidence the defense sought to offer, the basis for admissibility, and the
court’s rulings with each of the witnesses was essentially the same. As the trial court
excluded these entire lines of inquiry with each witness, counsel structured the brief
atypically so that it would not be needlessly repetitive. Nonetheless, when the brief
is viewed as a whole, and in context, it is clear that Mr. Martinez clearly argued the
law as it pertained to the specific categories of evidence the trial court excluded
throughout the entire trial.
Too, we suggest, that a “ruling-by-ruling” approach as a necessary prerequisite
to constitutional review under the particular facts of Mr. Martinez’s case was far too
restrictive. The larger problem in Mr. Martinez’s case was not that the trial court
clearly erred in excluding a particular question–or whether each individual ruling was
“clearly erroneous”–but, rather, that the trial court excluded all questions pertinent
to specific lines of inquiry–lines of inquiry which, Mr. Martinez argued in his brief,
have been held admissible by this and other courts under similar facts, and in the face
of similar objections and arguments. And, we suggest, whether the trial court’s
evidentiary rulings were–or were not–“clearly erroneous” on an individual basis does
not reach or describe the true problem–that the trial court cut off all lines of inquiry
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into motive, bias, or interest; all lines of inquiry to correct false impressions left by
the complainant and his father; all lines of inquiry to put the complainant’s and his
father’s testimony in its proper context; and all lines of inquiry to place the
complainant in his environment at the time of the outcry. It was these rulings in their
totality–not one-by-one–which created the overarching deprivation of Mr. Martinez’s
constitutional right to confront and cross-examine the witnesses, and his right to a
trial that was fundamentally fair. This was how Mr. Martinez argued the issues in his
brief and, though he might have structured the brief differently or better, the Fourth
Court’s finding of procedural default is far too harsh, and fails to take account of the
totality of Mr. Martinez’s presentation.
D. Reasons For Rehearing.
We assume that this Court’s denial of Mr. Martinez’s Petition for
Discretionary Review is based on the Fourth Court’s finding that his constitutional
claims would not be addressed because of a procedural default. Under the liberal
briefing rules described in TEX. R. APP. P. 38.9, and in light of Mr. Martinez’s brief
as whole, we reurge this Court to remand this case to the Fourth Court of Appeals
under TEX. R. APP. P. 47.1, to determine the merits of Mr. Martinez’s constitutional
arguments. Again, we point out that the limitations on cross-examination in Mr.
Martinez’s case are far outside the norm and, indeed, we found no case in which a
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trial court precluded the defense from pursuing all avenues of cross-examination on
matters as pedestrian as motive and bias, or as simple as “false impression” and
“contextual” evidence. Under the particular facts here, we ask that the Fourth Court’s
insistence on a “ruling by ruling” analysis as a predicate to constitutional review yield
to a liberal construction of Mr. Martinez’s brief which was more than sufficient to
apprise the Court of the issues and the applicable law.
PRAYER
FOR ALL THESE REASONS, MR. JOSE GUADALUPE MARTINEZ
respectfully prays that this Honorable Court will rehear its decision to deny
discretionary review and, thereafter, remand his case to the Fourth Court of Appeals
with instructions to review his constitutional arguments.
Respectfully submitted,
s/s NANCY B. BAROHN
NANCY B. BAROHN
1202 South Alamo Street
San Antonio, Texas 78210
(210) 226-4263
(913) 302-6708 (cell phone)
Texas Bar Number: 01796500
nbb@airmail.net
Attorney for Mr. Jose Guadalupe Martinez,
Petitioner-Appellant
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CERTIFICATE OF SERVICE
I certify that I served a true and correct copy of the foregoing Petition for
Rehearing through Texas eLaw Services on:
Mr. Danny Kindred
District Attorney for the
38th Judicial District
3102 Avenue G
Hondo, Texas 78861
danny.kindred@38thda.com
Mr. Edward Shaughnessy, III
Attorney at Law
206 East Locust Street
San Antonio, Texas 78212
shaughnessy727@gmail.com
State Prosecuting Attorney
201 West 14th Street
Austin, Texas 78701
information@spa.texas.gov
– on this the 18th day of June, 2015.
S:s NANCY B. BAROHN
NANCY B. BAROHN
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CERTIFICATE OF COMPLIANCE
1. Mr. Jose Guadalupe Martinez’s motion for rehearing complies with the length
requirements set out in TEX. R. APP. P. 9.4(i)(2)(D)because:
It contains 2,179 words exclusive of the materials specifically
excepted under the rule.
2. Mr. Martinez’s motion for rehearing complies with the typeface
requirements of TEX. R. APP. P. 9.4 because:
It has been prepared in a proportionally spaced typeface using
Word Perfect X5, in 14-point Times New Roman style.
Footnotes are in 12-point Times New Roman style.
DATED: June 18, 2014.
s/s NANCY B. BAROHN
NANCY B. BAROHN
Attorney for Mr. Jose Guadalupe Martinez
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CERTIFICATE OF COUNSEL
Pursuant to TEX. R. APP. P. 79.2(b), counsel certifies that his motion for
rehearing is made in good faith and not for purposes of delay. Mr. Martinez’s
constitutional claims are substantial, and we have found no other case where all lines
of inquiry through traditionally accepted modes of cross-examination were precluded
in their entirety at trial–and with a number of witnesses. The nature of the evidentiary
exclusions in Mr. Martine’s case–both substantively and repetitively–do not lend
themselves to a “ruling by ruling” treatment as a predicate to constitutional review.
This motion is not made for purposes of delay. On the contrary, a
determination of Mr. Martinez’s constitutional claims now, on direct review, will be
a far more economical use of judicial time than addressing these same issues again
on collateral review as part of an ineffective assistance of counsel claim. Where there
has been a procedural default through counsel’s briefing, and in the face of
substantial constitutional violations, she believes it will be incumbent upon her to
confess her ineffectiveness on this issue should Mr. Martinez wish to seek post-
conviction relief under ART. 11.07, TEX. CODE CRIM. PROC.
s/s NANCY B. BAROHN
NANCY B. BAROHN
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