Appellant was never incarcerated following her technical arrest. Therefore, there was no oppressive pretrial incarceration. Miracle???

Send this document to a colleague Close This Window



NUMBER 13-99-796-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

SYLVIA MARTINEZ , Appellant,

v.


THE STATE OF TEXAS , Appellee.

___________________________________________________________________

On appeal from the 197th District Court

of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Castillo, and Cantu(1)

Opinion by Justice Cantu



Appellant, Sylvia Martinez, was indicted on March 26, 1997 for the offense of theft (welfare fraud). The State alleged that pursuant to a scheme and continuous course of conduct, occurring between May 9, 1996 and September 28, 1996, appellant had obtained medicaid and food stamp benefits and aid to families with dependent children benefits through deception, i.e. by failing to disclose that she was employed during the time she received the benefits.

Appellant was not arrested until August 30, 1999, almost thirty months after the return of the indictment. On September 13, 1999, she filed a motion to dismiss based on a violation of her right to a speedy trial. The trial court denied the motion and appellant, thereafter, entered a guilty plea. Adjudication was deferred and appellant was placed on community supervision for a period of three years. In a single contention, appellant now appeals the trial court's denial of her motion to dismiss. We affirm.

During 1996, appellant, claiming to be unemployed, filled out an application and applied for benefits from the Texas Department of Human Services (hereinafter Department). As a result of the application being approved, appellant received assistance for a number of months. Thereafter, while receiving benefits, appellant obtained temporary employment with Wolverton Realty assisting with the agency's bookkeeping. Subsequently, appellant was interviewed by an investigator for the Department about her employment with Wolverton and a statement was obtained from appellant. No further action was taken by the State until March 26, 1997, when an indictment was returned by a Cameron County Grand Jury. A post indictment bond was set at $5,000.00 on April 4, 1997 and a capias and precept were issued on April 7, 1997. No further action appears of record(2) until August 18, 1999 when a notice of arraignment was mailed to appellant at 1150 E. Adams, Brownsville, Texas 78520 c/o the Community Development Corporation of Beeville. The notice advised appellant to appear for arraignment on September 2, 1999. On August 27, 1999 appellant appeared at a designated place where she executed a pretrial bond, requested a court appointed attorney and advised the court that she had already consulted with an attorney. At that time she provided an address of 591 N. Milam, San Benito, Texas 78586. The request for court-appointed attorney was approved by the trial court on August 30, 1999, the same day appellant was technically arrested and served with a copy of the indictment. Appellant was not, however, processed through jail.(3)

On September 2, 1999, appellant, with counsel, appeared for arraignment and entered her plea of "not guilty", obtained an announcement setting for October 1, 1999 and a trial on the merits setting for October 4, 1999. On September 13, 1999 appellant filed her motion to dismiss, which was heard on October 5, 1999.

Appellant provided the only testimony presented to the trial court. According to appellant, she was first made aware of the indictment when she received notice of a pending arraignment by mail delivered to her place of employment the latter part of August of 1999. She claimed that she was very embarrassed because up to this point she was totally unaware of any pending charges against her.

Appellant stated that she had been living in the Port Isabel and Laguna Heights area since March of 1997, but that she had recently moved to San Benito. She claimed a life-long permanent mailing address of Box 5205, Port Isabel, Texas 78578, which she insisted was the same address as 1637 North Shore Drive. She also claimed addresses at 618 Michigan Street and 1100 Highway 100 in Laguna Heights for a portion of the period immediately prior to moving to San Benito. During this period appellant was pursuing child support assistance through the Attorney General's Office and was receiving child support payments through the District Clerk's Office. She also had her minor child enrolled with the Cameron County Indigent Health Care program. Appellant vehemently denied ever trying to evade law enforcement in anyway.

Appellant remembered applying with the Department in 1996 for benefits but denied having word for word recollection of the event. She recalled receiving benefits for a short time but claimed her memory had faded because she tended to put those things behind her.

During cross-examination appellant demonstrated clear recollection of why she had made application for assistance in the first place and admitted that examining the application would help refresh her memory. She had no problem recalling her employment with Wolverton Realty and receiving payment by checks, but insisted that she was temporary help and not a full-time employee.

Although appellant could not recall the name of the investigator with the Department, she clearly remembered the incident involving the investigation.

The State did not offer any testimony at the hearing. However, the trial court commented after denying the motion:

The Court:....When this court took office, when I became judge of the 197th, none of these cases had been arraigned at all. The court had not set any of them down for any type of hearing. So it's not like we have a case in which the person was arraigned and then failed to appear and nothing was done to procure the appearance of the person.

When I first came on board, after I had been here for a while, then I reviewed to see what cases this court was behind on. All of these cases then came to light. On none of them had the court set them down for arraignment at all. I do not know why the court did not set them down. I just know that once I set them down for arraignment, then the people received notice, and they all came in. So based on that, apparently it was the court's problem or the court's mistake in not setting these down at all, and it had nothing to do with the prosecution. But I do not know why the prior judge, the prior court did not set them.

Appellant expressly invoked her right to a speedy trial under both the State and Federal Constitutions as well as under Article 1.05 of the Texas Code of Criminal Procedure. The right to a speedy trial is guaranteed by the Sixth Amendment as applied to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S.514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed. 2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In addition, Article I, sec. 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy public trial. See also, Article 1.05, Tex. Code Crim. Proc.. Although the Texas and Federal rights to a speedy trial are separate and distinct, interpretation and application of the Sixth Amendment right to a speedy trial by the Federal courts has served as a useful guide to the interpretation of the Texas constitutional right to a speedy trial by Texas courts. See Chapman v. Evans, 744 S.W.2d 133 (Tex.Crim.App. 1988);Pierce v. State, 921 S.W.2d 291, 293 (Tex.App.-Corpus Christi 1996, no pet.).

In determining whether an accused was denied her right to a speedy trial, we apply the balancing test set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. at 530-33. The factors we consider are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See id. No single factor is a "necessary or sufficient condition to the finding" of a speedy trial violation, and these factors "must be considered together with such other circumstances as may be relevant." Id. This balancing test requires that we conduct a bifurcated assessment of the trial court's decision. We review the factual components for abuse of discretion and the legal components of the court's decision de novo. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999)

LENGTH OF DELAY

The defendant has the burden of first demonstrating that sufficient delay has occurred to require application of the Barker balancing test. See Johnson v. State, 975 S.W.2d 644,649 (Tex.App.-El Paso 1998, pet ref'd.). The length of delay for purposes of speedy trial analysis is generally measured from the time a defendant is arrested or formally charged until the time of trial. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.1992), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). There is no per se length of delay that automatically constitutes a violation of the right to a speedy trial. Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985) The length of delay must be examined on a case by case basis, Chapman, 744 S.W.2d at 136 and constitutes our first inquiry. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. A finding of a "presumptively prejudicial" delay is a necessary precursor to our inquiry into the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S.at 530-31, 92 S.Ct. 2182); "Presumptive prejudice" does not "necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry." State v Munoz, 991 S.W.2d at 821-22 (citing Doggett, 505 U.S. at 652 fn.1, 112 S.Ct. at 2691,fn.1, 120 L.Ed.2d at 528 fn.1 (1992). Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of speedy trial claims. See Harris v. State, supra at 956; Knox v. State, 934 S.W.2d 678, 681 (Tex.Crim.App.1996)

Almost thirty months passed between the return of the indictment and appellant's technical arrest. We believe this is a sufficient length of time to require a speedy trial inquiry.

REASON FOR THE DELAY

Once the defendant has demonstrated "presumptive prejudice" the initial burden of justifying a lengthy delay is upon the State. See Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App. 1976); Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994).

Both the trial court and prosecution are under a positive duty to prevent unreasonable delay. See Chapman v. Evans, supra. at 137.

Intentional prosecutorial delay should weigh heavily against the State in the analysis. More "neutral" reasons for delay such as negligence or overcrowded court dockets are also weighed against the State, although not to the same extent. See Barker, 407 U.S. at 531d, 92 S.Ct. at 2182. Neutral reasons such as negligence or overcrowded courts shall be weighed less heavily against the State, "but nevertheless shall be considered, because the ultimate responsibility for such circumstances must rest with the government rather than the defendant." Id. In examining the delay, different weight should be assigned to different reasons. Emery, 881 S.W.2d at 708. A record that is silent or containing insufficient reasons to excuse the delay gives rise to a presumption that no valid reason for delay exists. Lott v. State, 951 S.W.2d at 493.

Here the reason for the delay is unknown because the State proffered no explanation for the delay. Moreover, the State made no effort to explain why the arrest warrant issued on April 7, 1997 was not executed until August 30, 1999. Nor is there any indication that Cameron County took any steps to contact appellant even as she participated in county sponsored programs. These circumstances weigh against the State and in favor of the appellant.

At the end of the evidentiary hearing, the trial court attempted to justify the delay by shifting the blame to the predecessor court's administration. Presumably the outgoing court's personnel negligently failed to set the judicial process in motion for a number of cases after indictments were returned. We treat the trial court's explanation as a neutral reason weighed against the State because ultimately responsibility, for even neutral reasons, rests with the State. We conclude that the delay should be attributed to the State alone.

ASSERTION OF THE RIGHT

The third factor under Barker is the defendant's assertion of the right to a speedy trial. Appellant's assertion of her speedy trial right is entitled to strong evidentiary weight in determining whether she was deprived of the right. See Barker, 407 U.S. at 531-32, 92 S.Ct. at 2182. Conversely, a failure to assert the right in a timely and persistent manner indicates that she did not really want a speedy trial. See Emery, 881 S.W.2d at 709. In such a case, this factor must be weighed against the defendant. See Sinclair v. State, 894 S.W.2d 437, 440 (Tex.App.-Austin, 1995, no pet.). The record is clear that the only pretrial action taken by appellant was her appearance for arraignment, the obtaining of a trial date and the filing of her motion seeking dismissal of the case for denial of a speedy trial. Clearly appellant never sought a speedy trial, as her actions demonstrate only the desire to obtain a dismissal. The State argues, and we agree, that this failure to request a speedy trial tends to attenuate the strength of appellant's claim. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App.1983). However, a defendant has no duty to bring himself to trial. See Barker, 407 U.S. at 527. The primary responsibility rests with the courts and prosecutors to assure that cases are brought to trial. Id. at 529. Because appellant was unaware that she had been indicted for over 29 months, she can hardly be blamed for not earlier asserting her right to be afforded a speedy trial. Cf. Pierce v. State, 921 S.W.2d at 295. ( A defendant cannot be penalized for invoking his speedy trial right only after arrest.); State v. Perkins, 911 S.W.2d 548, 553 (Tex.App.-Fort Worth 1995, no pet.) (A defendant has no burden to demand a speedy trial at his arrest or before he learned about his arraignment date.).(4) An accused cannot be faulted for failing to assert a right he did not know he was entitled to. See Phillips, 650 S.W.2d at 400. We assess appellant's assertion of the right to a speedy trial in light of her total conduct. See Burgett v. State, 865 S.W.2d 594, 598 (Tex.App.-Fort Worth 1993, pet. ref'd).

In the instant case appellant filed her motion seeking dismissal barely eleven days after obtaining counsel and being arraigned. Considering that the State waited almost thirty months to arrest the appellant, her assertion of her right to a speedy trial can hardly be criticized as untimely. The third Barker factor weighs heavily in favor of the appellant.

PREJUDICE TO THE APPELLANT

The final Barker factor to consider is prejudice to the accused. The prejudice factor must be assessed in the light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. SeeHarris v. State, 827 S.W.2d at 957. Of these subfactors, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532-33, 92 S.Ct. at 2193-94.

A defendant has the burden to make some showing of "prejudice" although a showing of "'actual prejudice'' is not required.See State v. Munoz, 991 S.W.2d at 826 (citing Harris v. State, 489 S.W.2d at 308. When the defendant makes a "prima facie showing of prejudice," the State carries "'the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.'" Id. (citing Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)

Appellant was never incarcerated following her technical arrest. Therefore, there was no oppressive pretrial incarceration. She offered no evidence that she had suffered either anxiety or concern other than a feeling of embarrassment upon receiving notice of her pending arraignment at her place of employment.

Appellant testified that her memory concerning the events of the offense had faded to the point that she did not have any recollection of what information she had included in her application for benefits and, therefore, she could not tell whether her application had been altered. Moreover, she claimed to have no recollection of the names of either the Department investigator that interviewed her and took her statement or the state employee that took her application for benefits.

Under cross-examination appellant admitted remembering making application for benefits and receiving them for a short period. She recalled being unemployed at the time of the application and subsequently accepting temporary work at Wolverton Realty while receiving benefits. She further remembered doing bookkeeping for the agency and being paid with agency checks, although insisting that she was never actually an employee subjected to employee deductions. She agreed that the cancelled checks would assist her in establishing dates and amounts earned. Appellant further acknowledged that examination of the application would assist her in recalling details not otherwise remembered. She had no problem remembering the purpose of the interview with the Department's investigator, but insisted she could not recall his name. She claimed no recollection of the statement she gave, but again acknowledged that an examination of the instrument would prove helpful. Additionally, appellant disclosed that the whereabouts of the owner of the Wolverton Realty, Judy Wolverton, was not a problem because Wolverton had been her landlord the past three years.

Appellant offered no evidence that the availability of any potential witnesses was compromised as a result of the delay. In fact, she failed to mention the existence of any defensive witnesses.

It is clear from the testimony presented to the court that appellant's contemplated defense merely denied the existence of an employer-employee relationship. Our examination of her entire testimony does not support the conclusion that her lack of memory prejudiced her defense to any degree. The record does not disclose that appellant's attorney conducted any meaningful pretrial discovery prior to the hearing in an effort to ameliorate any harm from memory loss. However, at the oral arguments on submission of the case on appeal, counsel admitted that he had full access to the State's file under an open file policy. An examination of the stipulated evidence subequently admitted at the guilty plea clearly demonstrates that much of the memory loss was not inevitable and that discoverable documentary evidence was available to assist appellant in reconstructing any of the claimed concerns she expressed at the hearing. Cf. Harlan v. State, 975 S.W. 2d 387, 391 (Tex.App.-Tyler 1998, pet ref'd.)

CONCLUSION

Balancing the factors set forth in Barker v. Wingo, the weight tilts substantially against appellant's assertion of a violation of her constitutional right to a speedy trial. A dismissal by the trial court was not warranted. Appellant's sole issue before this court is overruled. We affirm the judgment of the trial court.

ANTONIO G. CANTU

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

12th day of April, 2001.



1. Senior Justice Antonio G. Cantu assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).

2. 2 During the hearing on appellant's motion to dismiss, counsel requested that the trial court take judicial notice of the court's entire file. We draw some of the facts from the same documents brought to the court's attention.

3. 3 Appellant testified that she had not spent any time in jail as a result of the arrest.

4. 4 Although it can be argued that appellant should have made her demand for a speedy trial at the arraignment, she cannot be faulted for failing to do so inasmuch as she was not afforded court- appointed counsel until the very date of arraignment.

We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising

Send this document to a colleague Close This Window










NUMBER 13-05-00181-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,


v.


ESTANISLADO MORIN, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION


Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa


The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.

A. Factual & Procedural Background

A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.

On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).

On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.

The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.

B. Standard of Review

In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).

C. Discussion

In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)

Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.

Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).

The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.

In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.

Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.

In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.

The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)


FEDERICO G. HINOJOSA

Justice


Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 17th day of August, 2006.

1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").

2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).

3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.

4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.

5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.

6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.

7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).

Too bad John Hubert and Patti Hubert need to read this again

THE TEXAS LAWYER'S CREED
A Mandate for Professionalism
Promulgated by The Supreme Court of Texas and the Court of Criminal Appeals November 7, 1989

I am a lawyer; I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, "My word is my bond."
2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3. I commit myself to an adequate and effective pro bono program.
4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this Creed when undertaking representation.
2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5. I will advise my client of proper and expected behavior.
6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8. I will advise my client that we will not pursue tactics which are intended primarily for delay.
9. I will advise my client that we will not pursue any course of action which is without merit.
10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.
2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
3. I will identify for other counsel or parties all changes I have made in documents submitted for review.
4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.
8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16. I will refrain from excessive and abusive discovery.
17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law.
3. I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.
4. I will be punctual.
5. I will not engage in any conduct which offends the dignity and decorum of proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

Order of the Supreme Court of Texas and the Court of Criminal Appeals

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics, instead of being part of the solution, have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reenforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed -- A Mandate for Professionalism" described above.

In Chambers, this 7th day of November, 1989.

The Supreme Court of Texas

Thomas R. Phillips, Chief Justice
Franklin S. Spears, Justice
C. L. Ray, Justice
Raul A. Gonzalez, Justice
Oscar H. Mauzy, Justice
Eugene A. Cook, Justice
Jack Hightower, Justice
Nathan L. Hecht, Justice
Lloyd A. Doggett, Justice

The Court of Criminal Appeals

Michael J. McCormick, Presiding Judge
W. C. Davis, Judge
Sam Houston Clinton, Judge
Marvin O. Teague, Judge
Chuck Miller, Judge
Charles F. (Chuck) Campbell, Judge
Bill White, Judge
M. P. Duncan, III, Judge
David A. Berchelmann, Jr., Judge

Clayton v. State, 169 S.W.3d 254, 255 (Tex. App.-Corpus Christi 2005, pet. granted). This Court reversed his conviction and ordered a judgment acqu...

Send this document to a colleague Close This Window










NUMBER 13-07-513-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

____________________________________________________________

IN RE LEVIYAS JAMAIL CLAYTON

____________________________________________________________


On Petition for Writ of Mandamus
____________________________________________________________


MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Garza

Per Curiam Memorandum Opinion (1)


Relator, Leviyas Jamail Clayton, pro se, filed a petition for writ of mandamus in the above cause on August 20, 2007. Relator contends that he is being illegally incarcerated and asks this Court to compel his release. We deny the petition for writ of mandamus.

Relator was convicted of murder and sentenced to thirty years' imprisonment. See Clayton v. State, 169 S.W.3d 254, 255 (Tex. App.-Corpus Christi 2005, pet. granted). This Court reversed his conviction and ordered a judgment of acquittal. See id. at 258. The court of criminal appeals has granted the State's petition for discretionary review.

Through this original proceeding, relator contends that Texas Rule of Appellate Procedure 51.2(d) compels his immediate release from prison. See Tex. R. App. P. 51.2(d). Rule 51.2(d) provides that "When the appellate court reverses a judgment and orders the defendant's acquittal, the defendant-if in custody-must be discharged, and no further order or judgment of the trial court is necessary." See id.

Rule 51.2(d) must be read in conjunction with the code of criminal procedure. Under article 44.04(h):

If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review. If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail. If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail. The sureties on the bail must be approved by the court where the trial was had. The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals' final ruling as defined by Tex. Cr. App. R. 209(c).


Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon 2006). Accordingly, to the extent that relator is seeking release from imprisonment pending the resolution of his appeal, relator would be required to request bail from the court of criminal appeals. See id.

The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED. See Tex. R. App. P. 52.8(a). Any pending motions are denied as moot.

PER CURIAM

Do not publish.

See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 11th day of September, 2007.

1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).