331 315 'O(Q,O’?,Qac
EAUSE ND. 868139-5
BEBihU-B _
873521-5 fsz?"/jj§fj§§“fL‘_§ L:N; E>< parte § In The zusulé§d§ré;:t Fob‘i_?r%?] Q@U% Eharles l'_`.laude Carlton § of AY@ ]l%;{§§§ Applicant §
Harris Eountyv §§~S @A©®S§@,H ©H@FL'<
Dbjections And Response To
The Trial Eourt's Ruling Pursuant To Texas Eode of Criminal Procedure Article 1107 (Mest 2013), Under Rule 73.&(29.
The report from the Department of Veteranks Affairs (diagnosis of P.T.S.D.) dated December 9, 2015 and attached to Applicant's writ Application clearly shows a Nem Factual Basis in overcoming the procedural bar to Applicant's grounds for relief in this instant habeas proceeding. No mental issue of com- bat§related Post Traumatic Stress Disorder was ever known until July 2013, not at trial in 2002 on ist habeas writ in ZUUB.
Exceptions to the Subsequent writ Bar of Article 11.07, 5ection 4 Burden of Proof Necessary Under Article's 11.073 and 11.07, §4
Applicant Barlton's first ground in the instant 11.07 application, income petency in fact at the time of his guilty pleas on Uctooer 22, 2001, relies upon relevant medical evidence of (P.T.S.D.) which developed after his sentencing: i.e., outside the time frame for a fate claim. Likewise, Applicant's second ground, ineffective assistance of trial counsel during the punishment phase, relies upon (P.T.S.D.) as previously unavailable factual evidence, when his
initial 11.07 application was considered on March 19, ZUUB.
11.073 Burden of Proof Applicability:
11.D7B(a)(1):
Texas Bode of Eriminal Procedure Article 11.U73(a)(1) applies to Appli- cant Earlton's combat-related Post-Traumatic Stress Disorder (P.T.S.D§), dis- covered in 2013 (See Exhibit 1; attached). Earlton's clinically recognized dis- order was not available to be offered at his trial in 2001, and is relevant to
competency. See Bouchillon v Collins, 907 F.Zd 589, 592 n.7 (5th Eir. 1990).
Availability: 11.073(b)(1):
Habeas Corpus relief is available for Applicant Earlton's Article 11.U7 application raising the issue of incompetency in fact, not requested at the time of trial. See Ex parte Tuttle, AAB S.m.2d 194, 198 (Tex. Erim. App. 1969); Zapata v Estelle, EBB F.2d 1017, 1021 (5th Eir. 1979); and n 11.073(b)(1)(A):
Relevant "soft" scientific evidence of (P.T.S.D.), discovered by psychia- trists at the Veterans Administration Medical Eenter in 2013, mas not available at the time of trial in 2001, because Applicant Earlton was not examined for any service-connected disorders before or during his trial. And as an indigent defendant, he was not required to employ/his own expert. See Ake v Dklahoma,
L7U U.S. 65 (1965). 11.U73(b)(1)(B):
Testimony pertaining to Applicant Earlton's suffering from (P.T.S.D.) at the time of his guilty pleas and sentencing would be admissible, as expert opin- ion at a trial held on the date of application, assisting the trier of fact with understanding the evidence or to determine a fact issue. See TEXAS RULES DF EVIDENEE 702; and 11.073(b)(2):’;;
Evidenceyochpplicant‘s (P.T.S.D.), not presented at trial, supports a
finding by the trial court that, by a preponderance of the evidence, Mr. Carlton
would not have been convicted. Here, the plain language of Subsection (b)(2)'s
v
phrase "would not have been convicted," like the outcome determination test of Strickland, does not turn on the validity of the result, viz, guilt or inno- cence, but competence: Since to "convict" an incompetent person is a per se due process violation, guilt or innocence is irrelevant. Ef, Ex parte Robbins, No. wr-73, hBh-UZ.
11.U73(c) & (d) Diligence:
For purposes of determining whether Applicant's claim of incompetence in fact could have been presented in his previously considered 11.07 application, Applicant was diligent in seeking help for his mental condition at the Veterans Administration Medical Eenter in ZDDU. Too, Applicant informed Mr. Loper of the care he received at (V.A.M.C.). And inspector Eddie Rodriguez informed Judge Eampbell about Earlton‘s history of mental problems. Again, Mr. Barlton com- plained on appeal, and appellate counsel, Mark Rubal, obtained affidavits re- garding the lack of expert psychological assistance for trial. Applicant's mother and other family members also testified on his behalf regarding mental issues.
Further, in making its findings as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before Applicant's initial 11.07 application was considered, developments in identify- ing and diagnosing (P.T.S.D.) have greatly improved. Even as recently as 2013, the American Psychological Association has made some maggrrchanges to diagnos- ing symptoms of (P.T.S.D.) in its DSM-V manual (See online article attached as Exhibit 7'to the application). Those changes were also adopted by the United States Department of Veterans Affairs in 2013 (BEe online article also attached as Exhibit 7). Pertinently, Applicant Carlton was examined, diagnosed and rou- tinely treated by the (V.A.M.B.) in ZUUU, according to his mental history: Applicant was evaluated and diagnosed with a depressive disorder as a criminal/
parolee, not as a war veteran. lt is at least hopeful that recent changes in
the past decade would prevent the misdiagnosis of (P.T;B.D.) as bipolar depres- sion today. Nonetheless, the Eourt should also consider that Texas law now mandates that combat-related (P.T.S.D.) be included in the (PSI) report. 5ee TEXAS CUDE of CRIMINAL PRUEEDURE Article h2.12, §9(1). Moreover, Texas Legislators have given commissioner's courts the power to create veteran's courts in Texas, twen- ty-two of which exist, to handle both felony and misdemeanor crimes committed by combat veterans, like Applicant Carlton, who are suffering from (P.T.S.D.). Hence, the instant application contains specific facts indicating that relevant scientific evidencetof (P.T.S.D.), now available, was not available at the time of trial because the evidence was not ascertainable through the exer- cise of reasonable diligence, and would be admissible under Texas Rules of Evis `l dence 702 at a trial held on the date of application. And had evidence of (P.- T.S.D.) been presented at trial on the preponderance of the evidence, if incom- petent, Applicant Barlton would not have been convicted. Furthermore, for pur- poses of section h(a)(1), evidence regarding competency could not have been pre-l sented in Applicant‘s original 11.U7 application in ZUDB, because the claim is based upon relevant sceintific evidence of (P.T.S.D.) from 2013, that was not ascertainable through the exercise of reasonable diligence by Applicant on or before the date the original application was considered. And in making its find- ing as to whether evidence of (P.T.S.D.) was not ascertainable, improved changes in dwagnosiug (P.T.B.D.) together with statutory provisions intended$ to focus L specificallyonxservice-connected disabilities, Earlton's competency issue today c would mandate an inquiry. Thusly, the Court may address the merits of Applicant
Earlton's substantive claim of incompetence in fact.
_ngpplicant Carlton's Burden of Proof Under Sections h(a)(1) & (c)
whether the Eourt is barred from considering the merits of Applicant
Carlton's claim of ineffective assistance of counsel turns on whether the facts giving rise to the claim presented could not have been presented in the initial application, because they were "not ascentainable through the exercise of rea-l sonable diligence on or before theadatemof-the initial application." See §§
parte Lemke, 13 s.w. 3d 791, 795 (Tax. crim. App.'zuuo).
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331 315 'O(Q,O’?,Qac
EAUSE ND. 868139-5
BEBihU-B _
873521-5 fsz?"/jj§fj§§“fL‘_§ L:N; E>< parte § In The zusulé§d§ré;:t Fob‘i_?r%?] Q@U% Eharles l'_`.laude Carlton § of AY@ ]l%;{§§§ Applicant §
Harris Eountyv §§~S @A©®S§@,H ©H@FL'<
Dbjections And Response To
The Trial Eourt's Ruling Pursuant To Texas Eode of Criminal Procedure Article 1107 (Mest 2013), Under Rule 73.&(29.
The report from the Department of Veteranks Affairs (diagnosis of P.T.S.D.) dated December 9, 2015 and attached to Applicant's writ Application clearly shows a Nem Factual Basis in overcoming the procedural bar to Applicant's grounds for relief in this instant habeas proceeding. No mental issue of com- bat§related Post Traumatic Stress Disorder was ever known until July 2013, not at trial in 2002 on ist habeas writ in ZUUB.
Exceptions to the Subsequent writ Bar of Article 11.07, 5ection 4 Burden of Proof Necessary Under Article's 11.073 and 11.07, §4
Applicant Barlton's first ground in the instant 11.07 application, income petency in fact at the time of his guilty pleas on Uctooer 22, 2001, relies upon relevant medical evidence of (P.T.S.D.) which developed after his sentencing: i.e., outside the time frame for a fate claim. Likewise, Applicant's second ground, ineffective assistance of trial counsel during the punishment phase, relies upon (P.T.S.D.) as previously unavailable factual evidence, when his
initial 11.07 application was considered on March 19, ZUUB.
11.073 Burden of Proof Applicability:
11.D7B(a)(1):
Texas Bode of Eriminal Procedure Article 11.U73(a)(1) applies to Appli- cant Earlton's combat-related Post-Traumatic Stress Disorder (P.T.S.D§), dis- covered in 2013 (See Exhibit 1; attached). Earlton's clinically recognized dis- order was not available to be offered at his trial in 2001, and is relevant to
competency. See Bouchillon v Collins, 907 F.Zd 589, 592 n.7 (5th Eir. 1990).
Availability: 11.073(b)(1):
Habeas Corpus relief is available for Applicant Earlton's Article 11.U7 application raising the issue of incompetency in fact, not requested at the time of trial. See Ex parte Tuttle, AAB S.m.2d 194, 198 (Tex. Erim. App. 1969); Zapata v Estelle, EBB F.2d 1017, 1021 (5th Eir. 1979); and n 11.073(b)(1)(A):
Relevant "soft" scientific evidence of (P.T.S.D.), discovered by psychia- trists at the Veterans Administration Medical Eenter in 2013, mas not available at the time of trial in 2001, because Applicant Earlton was not examined for any service-connected disorders before or during his trial. And as an indigent defendant, he was not required to employ/his own expert. See Ake v Dklahoma,
L7U U.S. 65 (1965). 11.U73(b)(1)(B):
Testimony pertaining to Applicant Earlton's suffering from (P.T.S.D.) at the time of his guilty pleas and sentencing would be admissible, as expert opin- ion at a trial held on the date of application, assisting the trier of fact with understanding the evidence or to determine a fact issue. See TEXAS RULES DF EVIDENEE 702; and 11.073(b)(2):’;;
Evidenceyochpplicant‘s (P.T.S.D.), not presented at trial, supports a
finding by the trial court that, by a preponderance of the evidence, Mr. Carlton
would not have been convicted. Here, the plain language of Subsection (b)(2)'s
v
phrase "would not have been convicted," like the outcome determination test of Strickland, does not turn on the validity of the result, viz, guilt or inno- cence, but competence: Since to "convict" an incompetent person is a per se due process violation, guilt or innocence is irrelevant. Ef, Ex parte Robbins, No. wr-73, hBh-UZ.
11.U73(c) & (d) Diligence:
For purposes of determining whether Applicant's claim of incompetence in fact could have been presented in his previously considered 11.07 application, Applicant was diligent in seeking help for his mental condition at the Veterans Administration Medical Eenter in ZDDU. Too, Applicant informed Mr. Loper of the care he received at (V.A.M.C.). And inspector Eddie Rodriguez informed Judge Eampbell about Earlton‘s history of mental problems. Again, Mr. Barlton com- plained on appeal, and appellate counsel, Mark Rubal, obtained affidavits re- garding the lack of expert psychological assistance for trial. Applicant's mother and other family members also testified on his behalf regarding mental issues.
Further, in making its findings as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before Applicant's initial 11.07 application was considered, developments in identify- ing and diagnosing (P.T.S.D.) have greatly improved. Even as recently as 2013, the American Psychological Association has made some maggrrchanges to diagnos- ing symptoms of (P.T.S.D.) in its DSM-V manual (See online article attached as Exhibit 7'to the application). Those changes were also adopted by the United States Department of Veterans Affairs in 2013 (BEe online article also attached as Exhibit 7). Pertinently, Applicant Carlton was examined, diagnosed and rou- tinely treated by the (V.A.M.B.) in ZUUU, according to his mental history: Applicant was evaluated and diagnosed with a depressive disorder as a criminal/
parolee, not as a war veteran. lt is at least hopeful that recent changes in
the past decade would prevent the misdiagnosis of (P.T;B.D.) as bipolar depres- sion today. Nonetheless, the Eourt should also consider that Texas law now mandates that combat-related (P.T.S.D.) be included in the (PSI) report. 5ee TEXAS CUDE of CRIMINAL PRUEEDURE Article h2.12, §9(1). Moreover, Texas Legislators have given commissioner's courts the power to create veteran's courts in Texas, twen- ty-two of which exist, to handle both felony and misdemeanor crimes committed by combat veterans, like Applicant Carlton, who are suffering from (P.T.S.D.). Hence, the instant application contains specific facts indicating that relevant scientific evidencetof (P.T.S.D.), now available, was not available at the time of trial because the evidence was not ascertainable through the exer- cise of reasonable diligence, and would be admissible under Texas Rules of Evis `l dence 702 at a trial held on the date of application. And had evidence of (P.- T.S.D.) been presented at trial on the preponderance of the evidence, if incom- petent, Applicant Barlton would not have been convicted. Furthermore, for pur- poses of section h(a)(1), evidence regarding competency could not have been pre-l sented in Applicant‘s original 11.U7 application in ZUDB, because the claim is based upon relevant sceintific evidence of (P.T.S.D.) from 2013, that was not ascertainable through the exercise of reasonable diligence by Applicant on or before the date the original application was considered. And in making its find- ing as to whether evidence of (P.T.S.D.) was not ascertainable, improved changes in dwagnosiug (P.T.B.D.) together with statutory provisions intended$ to focus L specificallyonxservice-connected disabilities, Earlton's competency issue today c would mandate an inquiry. Thusly, the Court may address the merits of Applicant
Earlton's substantive claim of incompetence in fact.
_ngpplicant Carlton's Burden of Proof Under Sections h(a)(1) & (c)
whether the Eourt is barred from considering the merits of Applicant
Carlton's claim of ineffective assistance of counsel turns on whether the facts giving rise to the claim presented could not have been presented in the initial application, because they were "not ascentainable through the exercise of rea-l sonable diligence on or before theadatemof-the initial application." See §§
parte Lemke, 13 s.w. 3d 791, 795 (Tax. crim. App.'zuuo).
As mentioned briefly, on November 7, 2013, representative Eregory Treacy, from Paralized Veterans of America, lnc., approached the Veterans Administration with evidence for deciding Mr. 0arlton's claim of combat-related Post-Traumatic §tressUH$orimr (P.T.S.D.) §Mr. Treacy's evidence is itemized on page 2 of the Veterans§Administration's December 9, 2013 decision; attached to this applica- tion as Exhibit 1). The Veterans Administration's rating decision ultimately reflects results from the personal examination of Mr. Earlton on November 7, 2013, conducted by psychiatrists at (VAME) in Houston. The V.A. rated Mr. Earl- ton's disability at:
1. Service connection for mood disorder NDS (claimed post-traumatic stress
disordar) (P.T.S.D.) is granted with an evaluation of 50 percent effective July 26, 2013. 2. Service connection for irritable bowel syndrome is granted with an
evaluation of 30 percent effective November 29, 2012.
Id.
Applicant's initial application, raising the issue of ineffective assis- tance of trial counsel, was filed in the 240th District COurt, Harris Eounty, Texas, on December 13, 2006 (Tr. writ No. BGB139-A, 8601&0-A, B73521£A).`After ordering trial counsel, Robert Kent Loper, to file an affidavit (Affidavit attached4to the application as Exhibit h), the case was resolved without a
hearing. Considering the issue presented, and counsel's affidavit, the trial
court recommended that the claim be denied. And on March 19, 2000, the Eourt of Briminal Appeals denied the application without written order (No. mR-33,B13-03,
MR-33,B13-0h, UR-33,B13-05)(Mhite Bardm.
"Reasonable Diligence"
"Reasonable Diligence" within the context of Article 11.07 Section 4 TEX. EDDE ERIM. PRDB., as explained in Ex parte Lemke, supra, 13 S.w. 3d at 794, "suggests at least some kind of inquiry has been made into the matter at issue." In the instant case, Mr. Carlton‘s notice of appeal, motion for new trial and attached affidvits, together with appellate counsel, Mark Rubal's attestation in the appellate brief, and the issue presented in the initial 11.07 application v(each document alleging defense counsel failed to investigate defendant's mental oondition despite repeated requests for expert assistance), all suggest various attempts of inquiry into the matter of obtaining expert psychological assistance. In fact, Mr. Loper's own pretrial, Eke motion affirms that Mr. Earlton's mental condition was an issue as early as July 17, 2001 (See eke_motion attached to the application as Exhibit 5).
Thus, the facts in record support a determination, that after making inqui- ries of Mr. Loper, Applicant 0arlton exercised "reasonable diligence," in at- tempting to have expert psychological assistance even before trial, and repeat- edly inquired to the lack thereof immediately thereafterwards. Sea Lemke, supra, at 794 (holding applicant exercised "reasonable diligence" by making several inquiries of his lawyer as to the existence of plea bargain offers by the Btate). Eiven that the record proves Applicant made several inquiries, and thattJudge 0ampbel granted defense's motion for such, with finding, Mr. 0arlton's efforts of diligence were shut down by Mr. Loper's representation, and he has satisfied
Sectionth's requirement of "reasonable diligence,"
00nsequently, the instant application "contains sufficient specific facts'
7 Establishing" that Earlton's claim that Mr. Loper's failure to investigate his
mental condition, contact physicians, and obtain expert psychological assistance for punishment, is one that could not have been presented in the initial appli- Cation because the factual basis for the claim, that_Earlton was suffering from (P.T.S.D.), was "unavailable" (in that it was not ascertainable through the exer- cise of reasonable diligence) on March 19, 2000, and the Eourt may therefore
address the merits of ground two in the instant application,
BERTIFICATE 0F SERVICE
I, Charles Elaude Earlton, undersigned, certify that a true and correct copy of Applicant's 0bjections and Response to The Trial Eourt's Ruling, Pursu- ant to Texas EOde of Briminal Procedure Article 11.07 under rule 73.&(2), was sent to:
Court of Criminal Appeals
P.0. on 12308, Capitol Station Austin, TX 70711
Ehris Daniel
Harris County District Clerk 1201 Franklin, P.0. Box 4651 Houston, TX 77210 - h651
nn, j¢,/¢,,;Y~ /07’/ ,2015.
Charles E;YEarlton Applicant Pro 5a