# Notice of Filing Objections and

Request for Stay in Proceedings Pending Resolution of Issues

No. WR-83,110-01 

## Ex parte Fritz Allen Furtick In the Court of Criminal Appeals of Texas at Austin Habeas Corpus

Proceeding under Article 11.07, et seq ., C.Cr.P., in Case Number 02-CR-3060-B, from the 117th

District Court of Nueces County

TO THE HONORABLE JUDGES OF SAID COURT: COMES NOW, Fritz Allen Furtick, Applicant in the above styled and numbered cause, by and through John G. Jasuta and David A. Schulman, his undersigned attorneys, and respectfully files this “Notice of Filing Objections and Request for Stay in Proceedings Pending Resolution of Issues,” and would show the Court as follows: I On April 6, 2015, the convicting (“ habeas”) court entered its findings of fact and conclusions of law, which were subsequently forwarded to this Court by the District Clerk of Nueces County and WR-83,110-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 4/13/2015 7:26:16 AM Accepted 4/13/2015 8:16:08 AM

ABEL ACOSTA CLERK

### received by t he Clerk of this Court o n A pril 9 , 2015. Applicant would s how t he C o urt that t he findings and conclusions at issue

are not supported by t he habeas record and fail to properly apply the law relating tothe allegations made a nd the evidence p roffered. I I On April 13, 2015, Applicant filed his objections t o the habeas court’s Findings of Fact and Conclusions o f L aw in that court. A true a nd correct copy of Applicant’s o bjections is attached as Exhibit “A” to this document. 

## Prayer WHEREFORE, PREMISES CONS ID ERED, Applicant, Fritz Allen Futrick, respectfully prays that t h is Honorable Court will stay the proceedings for a reasonable period of time, not to exceed sixty (60) days, to enable the habeas co u r t t o rule on the objections filed with it.

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### Respectfully submitted,

______________

_ _ _ _ _ _ _ _ _ _ _ _ _____ John G. Jasuta Attorney at Law Post Office Box 783 Austin, Texas 78767-0783 e M ai l : l a w ye r 1 @ j o h n g j a s u t a . c o m Tel. 512-474-4747 Fax: 512-532-6282 State Bar No. 10592300 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David A. Schulman Attorney at Law Office Box 783 Austin, Texas 78767-0783 zdrdavida@davidschulman.com Tel. 512-474-4747 Fax: 512-532-6282 State Bar Card No. 17833400 Attorneys for Applicant 

## Certificate of Compliance and Delivery This is to certify that: (1) this d o cument, created using WordPerfectTM X6 softwar e, contains 325 w ords, 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 13, 2015, a true and correct copy of the above a nd foregoing “Notice of Filing Objections and Request f or Stay in Proceedings Pending Resolution of Issues” was transmitted via electronic mail ( eMail ) t o James Odell (james. odell@nuecesco.com), Attorney of record for the State of Texas.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ John G. Jasuta 3

# Exh ibit “A”

# Applicant’s Objections to the Habeas

Court’s Findings, Conclusions and

R ecommendations No. 02-CR-3060-B 

## Ex parte Fritz Allen Furtick In the 117th District Court Nueces County, Texas

T O T HE HONORABLE JUDGE OF SAID COURT : COMES NOW, F ritz Allen Furtick, Applicant in the abov e s tyled and numbered cause, by and through and respectfully files these objections to the to Habe a

s Court’s findings, conclusions and recommendations, and would respectfully show the Court as follows: I Applicant’s hab e as c orpus application was forwarded to the District Clerk for filing and provided to counsel for the Stat e of Tex a s on March 4, 2015. The State filed its answer on March 26, 2015, and provi de d a c opy to the u ndersigned on April 1, 2015. On April 6, 2015, the hab e a s court signed its “Findings of Fact, Conclusions of Law, & Recommendation.”



## Applicant’s General Objection

The habea

s court’s findings are p erfunctory and do not discuss in any depth, either the allegations, the State’s answer or the evidence proffered. Applicant has stated facts, which if true, would entitle him to relief.

## Applicant’s Specific Objections

I The first finding, that there is sufficient evidence i n the record to rule is plainly unsupported by the re c or d an d fails to take into account new evidence as well as more recent law regarding the subject. II The second finding, that the assertions within the State’s Answer are correct, fails to differentiate between the facts stated in that Answer. Is the habea s court relying on assertions o f fact supported by affidavit o f assistant district attorney who s wore that m emories were affected without speaking to anyone whose memories m ight have been s o affected? The deficiencies of the State’s Answer have not been considered by the habea s court. I II In the third finding, the habea s c ourt finds t hat Applicant raised his claim of i neffective assistance of counsel to the Court of Appeals on direct appeal and that it c annot, therefore, be re-litigated. The Finding is i nc o rre c t , ho wev e r, a s Applicant has raised a distinct allegation of ineffe c tiv e assistance of counsel which was not raised on direct appeal and, therefore,

was not addressed on direct appeal. Additionally, the claim could not have been raised on direct appeal. A review of the Court of Appeals’ opinion on direct appeal will demonstrate the State’s Answer, a n d t h e Finding based on it, to be incorrect.

2On direct appeal, appellate counsel misstated trial counsel’s actions. It was represented to the C ourt of Appeals that t rial counsel had failed to request the assistance of an expert witness, and that failure was identified

as the failure constituting ineffective assistance of counsel. However, as the record also reflects, and as shown in the instant application, trial counsel did, in fact, request the appointment of an expert. What she did not do, and what is alleged in the instant application a s de fi c i e n t c o nduct, and that which has gone unanswered by the State, and unaddressed by the habea s court in this incomplet e finding, was to seek additional funding, after it became clear to her that the expert she wanted to hire could not be retained for the sums authorized by the trial court. The supporting affidavit f i l e d with the application for writ of habea s corpus in this cause absolutely does contain additional i nformation

. The affidavit est abl ishes that trial counsel did not request additional funding, either on the record or off, and that i t was not a strategic d ecision to forego the use of an expert witness but , r at he r , one of economics. A s such, the present affidavit both p resents a new and previously u navailable claim, and admits to ineffective assistance of counsel. IV Additionally, as demonstrated within the Memorandum of Law f i led simultaneously with this application, t he failure identified as deficient conduct has, since the appeal in this case, been recog n i zed as deficient

3conduct by the United States Supreme Cour t i n Hinton v. Alabama ,

13-6440 (February 2 4, 2014). The habea s c ourt has completely failed to address the Supreme Court’s ruling in H inton, u p on which the application is, in large part, based, in all likelihood, on the State’s failure to address the effect of H

inton in its Answer. V In its fourth Finding, the habea s court finds that the Applicant has not shown that an expert was available and that he would have b enefitted from his or h er e vidence. Applicant would refer the Court, however, to the affidavit filed by trial counsel i n support of the application, in which it is stated that th e e xpe r t would have assisted in showing that her c lient was not a sexual pre da tor. Applicant pled not guilty and protested his innocence. While a positive psychological evaluation would not have altered the out c ome on guilt o r innocence, i ts relevancy a s evidence in mitigation of punishment cannot be denied. If t h e habe as court is finding that the Applicant did not bring the actual expert forward, the Court has, by its finding, identified a factual and material issue in need of resolution. That factual issue is whether trial counsel’s assertion that t h e e xpert witness she consulted, and who she believed sh e c oul d not afford, would have provided evidence which would have altered the outcome of the trial. The habea s court, instead of resolving that factual issue, relied solely on the State’s Answer without discussion o f

4the evidence which demonstrated both witness availability and the positive benefit which would have been derived from the use o f that evidence. Trial counsel swore that the expert witness would have changed the outcome o f the trial, yet th i s assertion is d ismissed without discussion. Applicant would submit t h at his burden has been met and that the Finding by the habea s court is erroneous

. VI Lastly, the habea

s c ourt finds laches. However, there is absolutely no support for the finding either in the facts or in the law. While the implication of the St a te ’s answer, and the habea s court’s finding, is that the State i s, somehow, in a less favorable p osition, there was

no evidence to support such a finding ot h e r t ha n platitudes concerning “diminished m emories of trial participants.” Totally missing was anything of an evidentiary nature supporting the claims made in the State’s answer. 1 Given that all relevant testimony regarding gui l t or innocence was given, and preserved, this hardly seems an impediment to either a coherent State’s answer t o the habea s petition or the ability to retry Applicant, should that prove n e c e s s a r y . While the habea

s c ourt fails to discuss i ts findings in any detail, the S t a t e di s cusses a nd dismisses the amount o f evidence i t must show to s upport a laches claim. The Court, however,

1 Counsel for the State did verify the State’s a n s w er in front a notary, but his assertions t h a t “the trial participants' m emories would be diminished,” is clearly not something within his personal knowledge. 5should recognize that t h e S tate has shown no evidence supporting this Finding whatsoever. The State’s ability to litigate a new p unishment hearing has not been in any way prejudiced by any delay in presenting the application, because the State can introduce all of the testimony from the p revious trial, plus any additional evidence relevant t o punishment, regardless of any loss o f memory as to the actual events. VII Th e S t a te’s answer cannot be relied u pon because it is unsupported by proper evidence. If the State’s attorney had spoken to witnesses and had determined s ome loss of memory on the witness’ part, despite the irrelevance of that loss of memory to any issue, it is incumbent on the State to show the witness’ present statement. It is also necessary for the State to explain how the loss of even a l l m emory on the part of the Complainant would, in any manner, handicap the State’s e f f or t s a t e i ther its answer or re-trial. In this requirement, both the State, and the l aches Finding based thereon, have wholly failed. The State’s representative swears that, “In this ca s e”

. . . “[t]he State

w ould be burdened in i ts ability to retry the case,” and “the trial partic ipants' memories would be diminished.” Applicant would show the Court that the State’s attorney presented no evidence upon which reliance is had to show that any m e m or i e s would be diminished or that the State

6would, in any manner, be prejudiced by any delay, much less the delay of which it compl a i n s . Since this is not the type of fact of which the affiant would have personal k nowledge, a n d i n the absence of any evidence showing loss of memory or any type of prejudice, Applicant would assert t h a t t he State’s Answer, p articularly with regard to any argument or fact regarding laches, unsupported as it is by c redible oath, law or evidence, must be disregarded and stricken. Instead, howe v e r , an d i n apparent reliance on the State’s u nsupported representation, the h abea s court finds laches should bar consideration. In this regard, the habea s court’s Finding is entirely erroneous as being without support either in fact or law. 

## Prayer WHEREFORE, PREMISES CONSIDERED, Applicant , Fritz Allen Futrick, respectfully prays that the habea s court will withdraw its findings of fact as (1) being unsupported by the evidence, (2) incomplete in their failure to specifically address the contentions raised, (3) incomplete in their failure to address r ecent constitutional precedent from the United States Supreme Court, and ( 4)based on mischaracterization of th e evidence proffered by Applicant, and instead find that Applicant has d emonstr ated that Applicant was denied the effective assistance of counsel a s set out within the application.

7Respectfully submitted,

__________________________________ John G. Jasuta Attorney at Law Post Office Box 783 Austin, Texas 78767-0783 eMail: lawyer1@johngjasuta.com Tel. 512-474-4747 Fax: 512-532-6282 State Bar No. 10592300 ___________________________________ David A. Schulman Attorney at Law Office Box 783 Austin, Texas 78767-0783 zdrdavida@davidschulman.com Tel. 512-474-4747 Fax: 512-532-6282 State Bar Card No. 17833400 Attorneys for Applicant 

## Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfectTM X6 s oftware, contains 1,905 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 13, 2015, a true and correct copy of the above and foregoing “ Applicant’s Objections to the Habea s Court’s Findings, Conclusions and Recommen da t i ons” was transmitted via electronic mail ( eMail ) to James Odell (james.odell@nuecesco.com), At t or ney of record for the State of T exas.

_____________________________________ John G. Jasuta

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