Martin, Virgil JoeAllen

WR-78,402-01
COURT OF CRIMINAL APPEALS
FILED IN
COURT OF CRIMINALAPPEALS
AUSTIN, TEXAS
Transmitted 12/2/2014 12:08:44 PM
December 3. 2014 Accepted 12/2/2014 1:24:15 PM
ABEL ACOSTA
ABELACOSTA, CLERK
No. WR-78,402-01
CLERK
In The Court of Criminal Appeals received
Attsttm Tfxas COURT OF CRIMINAL APPEALS
aumiin, ihaas 12/3/2014
ABEL ACOSTA, CLERK
Ex Parte Virgil Joeallen Martin
Applicant
On Application for a Writ of Habeas Corpus
Cause No. 9412689-A in the 177th Judicial District Court
From Harris County
Motion for Rehearing on the Court's Own Motion
This Court should have granted relief based on Virgil Martin's claim
o f i n e f f e c t i v e assistance o f t r i a l counsel f o r failure t o investigate
mitigation evidence
I. The evidence used to support the determination that laches should
bar relief in this case
In its unpublished opinion denying relief, this Court points to several findings
of fact which placed the State in a "less favorable position." Exparte Martin, No. WR-
78,402-01 at *12-13 (Tex. Crim. App. 2014). These findings include that Sheila
Martin, Virgil Martin's mother, could not recall whether or not Sheila Martin allowed
Virgil Martin to stop attending school, Virgil Martin's criminal history, why Virgil
Martin was placed in TYC, what Virgil Martin did as a juvenile1, and how she reacted
to Virgil Martin's confinement. Id. The trial lawyer could not recall certain details of
Virgil Martin's case, whether he made an investigation into the psychological history
of Virgil Martin's family, whether he had investigated into Virgil Martin's history of
child abuse, and whether he discussed Virgil Martin's home-life situation. Id. at 13.
II. The evidence used to support the determination that laches should
bar relief in this case related only to the State's ability to defend against
writ claims
The particularized showing required under the now-replaced Ex parte Carrio
standard involved a "showing of significant delay-related prejudice to its ability to
respond to the petition." Strahan v. Blackburn, 750 F.2d 438, 443 (5th Cir. 1985). The
trial lawyer's recollection of events is an issue that addresses only the State's ability to
respond to the current claims of the writ of habeas corpus. Ex parte Carrio, 992
S.W.2d 486, 488 (Tex. Crim. App. 1999). Similarly, Sheila Martin's recollection of
Virgil Martin's juvenile history and her reaction to Virgil Martin's criminal problems
was an issue that related only to the State's ability to defend against Virgil Martin's
writ claims. (Judge Patrick's February 12, 2014 Findings of Fact at 25).
All evidence offered to support the State's claim of laches in this case related to
a "particularized showing of prejudice," in other words, the State's ability to defend
1 Since Virgil Martin's mother remembered much of Virgil Martin's childhood, this
likely means what criminal acts Virgil Martin committed as a juvenile.
Virgil Martin's claims on the petition for habeas corpus. C.f. Exparte Smith, No. WR—
79,465-01, 2014 WL 5155006, 2 (Tex. Crim. App. Oct. 1, 2014). During the hearing
after this Court remanded Virgil Martin's case to the trial court, State did not advance
any new basis for relief, but reasserted that it had been prejudiced in defending the
writ:
the State is not here to argue that we are going to be prejudiced in
retrying the case beyond just a typical, you know, the regular isn't it true
that you testified in a prior hearing and we're going to have to do a lot of
recollection through showing prior testimony. However, the State does
believe and continues to assert that the State has shown that we have
been materially prejudiced in our defense of the writ.
(February 10, 2014 Hearing R.R. at 7). The State offered no evidence at the writ
hearing. The State explicitly conceded that none of its claims of prejudice had to do
with its ability to retry the case. (February 10, 2014 Hearing R.R. at 7). The State's
position was simply that the decision in Exparte Pere^ not only permitted the State to
show that it would be prejudiced at retrial, but that it altered the standard by which
laches applied when considering the State's ability to defend against a petition of writ
of habeas corpus. (February 10, 2014 Hearing R.R. at 7-8); See Ex Parte Pere%, 398
S.W.3d 206 (Tex. Crim. App. 2013).
III. The evidence used to support the determination that laches should
apply in this case was all considered under Judge Fine's analysis under
the old Ex parte Carrio standard and was explicitly rejected by Judge
Fine
Judge Fine was asked to consider whether Sheila Martin's lapses in memory
hurt the State's ability to defend the writ allegations and whether trial counsel's
offered any valid justification for his failure to conduct a mitigation investigation (5
Initial Writ Hearing R.R. at 26-27). After hearing all the evidence, Judge Fine explicitly
rejected the State's laches claim. (5 Initial Writ Hearing R.R. at 26-27).
IV. This Court's opinion does not explain how the analysis under Ex
parte Carrio and Ex parte Perez would differ in this particular case
This Court's opinion does not explain how Ex parte Pere% acts to change the
proper analysis in this case. (February 10, 2014 Hearing R.R. at 14); Ex Parte Pere%, 398
S.W.3d 206. Even under the federal standard that Ex parte Carrio incorporated, the
trial court was permitted to consider the ability of witnesses to recall pertinent facts
relevant to habeas corpus proceeding and to consider delay as a factor. See Strahan v.
Blackburn, 750 F.2d 438, 443 n. 5 (5th Cir. 1985) (noting that several cases warranted
bar by laches due to witness unavailability, death, or lack of recall of pertinent facts
and noted the length of delay in each case); Exparte Carrio, 992 S.W.2d 486, 488 (Tex.
Crim. App. 1999) (citing Strahan v. Blackburn, 750 F.2d 438). Though Ex parte Pere^
would change the analysis of the State's claim of laches in a case where the State
claimed it was prevented from retrial, it does not follow that Ex parte Pere^ changes
the analysis of a case where the State merely alleges prejudice to its ability to defend
writ allegations. Ex Parte Pere^ 398 S.W.3d at 215 (expanding the definition of laches).
The Court's opinion appears to hinge upon the credibility determinations of
Judge Patrick, who did not "have an opportunity to assess the credibility of the
witnesses who testified" because Judge Patrick did not over the initial writ hearing.
(Supplemental Clerk's Record at 21) (indicating that Judge Patrick merely reviewed
the record in this case). Judge Patrick did not consider any new evidence which
expanded the State's showing of harm but in fact merely reviewed the records and
evidence produced in the writ proceeding presided over by Judge Fine. (Supplemental
Clerk's Record at 21). Judge Patrick was asked to reweigh the same evidence that
Judge Fine had previously consider and come to a different conclusion regarding the
same basic facts. (February 10, 2014 Hearing R.R. at 12-14).
It is Judge Fine's determination of facts and credibility, based on interaction
with and observation of the witnesses in this case, that should be given greater weight
by this Court. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Given
that the State's laches argument does not depend on the expanded definition of laches
under Ex parte Pere%, it instead relies upon the credibility redeterminations made by
the judge who did not preside over the initial writ hearing. Virgil Martin would ask
this Court to reconsider its decision in this case.
Prayer
Virgil Martin prays that this Court withdraw its opinion on its own motion and
issue a new opinion granting relief in Virgil Martin's case.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/ Nicolas Hughes
Nicolas Hughes
Assistant Public Defender
Harris County Texas
1201 Franklin Street, 13th Floor
Houston Texas 77002
(713)368-0016
(713) 386-9278 fax
TBA No. 24059981
nicolas.hughes@pdo.hctx.net
Certificate of Service
I certify that a copy of this Motion for Reconsideration on the Court's Own
Motion has been served upon the Harris County District Attorney's Office —Post-
Conviction Section (Andrew Smith), on this December 2, 2014 by electronic service.
/s/ Nicolas Hughes
Nicolas Hughes
Assistant Public Defender