Furtick, Fritz ( 2015 )

WR-83,110-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/22/2015 11:56:38 AM
No. WR-83,110-01 Accepted 4/22/2015 1:09:55 PM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
RECEIVED
COURT OF CRIMINAL APPEALS
4/22/2015
Ex parte Fritz Furtick ABEL ACOSTA, CLERK
Motion for Reconsideration on the
Court’s Own Initiative
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW, Fritz Furtick (“Applicant”), by and through
John G. Jasuta and David A. Schulman, his undersigned
attorneys, and respectfully files this “Motion for Reconsideration
on the Court’s Own Initiative,” and requests the Court withdraw
its action of April 22, 2015, denying the application for writ of
habeas corpus without written order, then, on its own initiative,
reconsider such action. In support of this suggestion, Applicant
would respectfully show the Court as follows:
Facts Relevant to the Motion
Applicant filed his application for a writ of post-conviction writ
of habeas corpus pursuant to Article 11.071 § 3, et seq., C.Cr.P.,
March 4, 2015. The State filed its answer on March 26, 2015, a
copy of which was not received by the undersigned counsel for
Applicant until April 1, 2015, when a copy was sent to the
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undersigned counsel via eMail. Even then, it was only provided to
counsel on his request.
The habeas court entered its Findings of Fact, Conclusions of
Law, & Recommendation on April 6, 2015, all without notice in
any manner, to Applicant or the undersigned. Subsequently, the
record was transmitted to this Court by the Nueces County
District Clerk and, according to the Court’s on-line docket sheet,
received by this Court on April 9, 2015.
Nevertheless, and despite the continuing lack of any notice
from any court or clerk at any stage of the proceedings, the
undersigned filed, on behalf of Applicant, his “Objections to the
Habeas Court’s Findings, Conclusions and Recommendations,” in
the trial court, and filed a copy of those pleadings in this Court
along with a “Notice of Filing Objections and Request for Stay in
Proceedings Pending Resolution of Issues.” This pleading was
received by this Court on April 13, 2015, characterized as a
“letter,” nine (9) days prior to the Court’s action of April 22, 2015.
Applicant’s pleading was not ruled upon prior to the action on the
application, and has not been ruled on at all.
The objections filed in the habeas court, with a copy to this
Court with a request for a stay of proceedings, raised significant
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questions and issues, detailing the lack of analysis regarding the
issues raised, which lack included a failure to confront recent
developments in the law of ineffective assistance of counsel from
the United States Supreme Court, directly affecting the case at
bar. See Hinton v. Alabama, 13-6440 (February 24, 2014). The
State in its answer, the habeas court, and now this Court, have all
completely failed to address the Supreme Court’s ruling in Hinton,
upon which the application is, in large part, based. While the
State’s failure to address the effect of Hinton in its Answer is, to
some degree, understandable, the failure of the courts is not. The
issue was fairly presented.
The failure of the trial court, and now this Court, to grapple
with the issue of ineffective assistance of counsel presented by this
case, an admitted failure to seek additional funding to employ an
expert witness who could not be secured with the amount of
money authorized, has been exacerbated by the failure of the clerk
of each Court to notify either Applicant or his counsel in a timely
manner of each and every action taken in this case.
Applicant presented his Request for Stay in Proceedings
Pending Resolution of Issues in a timely manner to this Court
seeking additional time to properly litigate, in the habeas court,
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his objections to the facile manner in which his claims were
treated. Applicant submits that he was entitled, at the very least,
to a ruling on his request prior to this Court following the same
rush to judgment as had the lower court.
Prayer
Applicant prays that this Honorable Court will act on its own
initiative to withdraw its action of April 22, 2015, then will grant
the pending Request for Stay in Proceedings, and require, or at the
very least wait for, the habeas court to consider the objections
filed in that court prior to rendering a final decision.
Respectfully submitted,
______________________________
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
Post Office Box 783 Post Office Box 783
Austin, Texas 78767-0783 Austin, Texas 78767-0783
lawyer1@johngjasuta.com zdrdavida@davidschulman.com
Tel. 512-474-4747 x1 Tel. 512-474-4747 x2
Fax: 512-532-6282 Fax: 512-532-6282
State Bar No. 10592300 State Bar Card No. 17833400
Attorneys for Fritz Furtick
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Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 754 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
April 22, 2015, a true and correct copy of the above and foregoing
“Motion for Reconsideration on the Court's Own Initiative” was
transmitted via the eService function on the State’s eFiling portal,
to James Odell (james.odell@nuecesco.com), attorney of record for
the State of Texas.
______________________________________
John G. Jasuta
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