FILED IN COURT OF CRIMINALAPPEALS December 3. 2014 ABELACOSTA, CLERK No. WR-78,402-01 WR-78,402-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/2/2014 12:08:44 PM Accepted 12/2/2014 1:24:15 PM ABEL ACOSTA CLERK In The Court ofCriminalAppeals received Attsttm Tfxas COURT OF CRIMINALAPPEALS aumiin, ihaas 12/3/2014 ABEL ACOSTA, CLERK ExParte VirgilJoeallen Martin Applicant
On Application for aWrit ofHabeas Corpus 

### Cause No. 9412689-A in the 177thJudicial District Court From Harris County

Motion for Rehearing on the Court's Own Motion

This Court should have granted reliefbased on Virgil Martin's claim

ofineffective assistance oftrial counselfor failure to investigate
mitigation evidence I. The evidence used to support the determination that laches should
bar reliefin this case In its unpublished opinion denying relief, this Court points to several findings offact which placed the State in a "less favorable position." ExparteMartin, No. WR78,402-01 at *12-13 (Tex. Crim. App. 2014). These findings include that Sheila 

### Martin, Virgil Martin's mother, could not recallwhether or not Sheila Martin allowed 

### Virgil Martin to stop attending school, Virgil Martin's criminal history, why Virgil

### Martin was placed in TYC, whatVirgil Martin did as ajuvenile1, and how shereacted 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 ofVirgil 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 reliefin 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 triallawyer's recollection ofevents 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. (JudgePatrick's February 12, 2014 Findings ofFact at 25). 

### All evidence offered to support the State's claim oflaches in this case related to 

### a "particularized showing ofprejudice," 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 VirgilMartin committed as ajuvenile.

### 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 ofthe writ. 

### (February 10, 2014 Hearing R.R. at 7). The State offered no evidence at the writ 

### hearing. The State explicitly conceded that none ofits claims ofprejudice 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 Exparte 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 andExparte Perezwould differ in this particular case 

### This Court's opinion does not explain how Exparte Pere% acts to change the proper analysis in this case. (February 10, 2014 Hearing R.R. at 14);ExPartePere%, 398 S.W.3d 206. Even under the federal standard that Exparte Carrio incorporated, the trial court was permitted to consider the ability ofwitnesses 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 ofrecall ofpertinent facts 

### and noted the length ofdelay in eachcase); Exparte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999) (citing Strahan v. Blackburn, 750 F.2d 438). Though Exparte Pere^ would change the analysis of the State's claim of laches in a case where the Stateclaimed it was prevented from retrial, it does not follow that Exparte Pere^ changes 

### the analysis ofa case where the State merely alleges prejudice to its ability to defend writ allegations. ExPartePere^ 398 S.W.3d at 215 (expanding the definition oflaches). 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 byJudge 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 ofthe 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 oflaches 

### under Exparte 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 VirgilMartin's case. Respectfully submitted,
AlexanderBunin ChiefPublic 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 ofService 

### 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 —PostConviction Section (Andrew Smith), on this December 2, 2014 by electronic service.
/s/ Nicolas Hughes Nicolas Hughes Assistant Public Defender