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 of Criminal Appeals received

Attsttm Tfxas COURT OF CRIMINAL APPEALS aumiin, ihaas 12/3/2014

ABEL ACOSTA, CLERK

Ex ParteVirgil 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 onVirgil Martin's claim

of ineffective assistance of trial counsel for failure to 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In its unpublished opinion denying relief, this Court points to several findings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. WR78,402-01 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 VirgilMartin 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 Exparte Perezwould 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 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 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 —PostConviction Section (Andrew Smith), on this December 2, 2014 by electronic service.

/s/ Nicolas Hughes

Nicolas Hughes

Assistant Public Defender