Daniel Albert Talamantes v. State

Opinion

ACCEPTED

03-16-00369-CR

13161296

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/10/2016 11:19:17 PM

JEFFREY D. KYLE

CLERK

TEXAS COURT OF APPEALS THIRD DISTRICT, AT AUSTIN FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

10/10/2016 11:19:17 PM

NO. 03-16-00369-CR JEFFREY D. KYLE Clerk

Daniel Albert Talamantes, Appellant v.

The State of Texas, Appellee

FROM COUNTY COURT AT LAW #7 TRAVIS COUNTY, TEXAS CAUSE NO. C-1-CR-06-722632 HON. ELISABETH EARLE, JUDGE PRESIDING

REPLY BRIEF OF THE APPELLANT

Mr. Bristol C. Myers

Texas Bar No.: 24009734

1411 West Avenue, Suite 200 Austin, Texas 78701

512-478-2100

512-478-2107 fax

bristol.myers@gmail.com

Attorney for the Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS.....................................................................2 INDEX OF AUTHORITIES……..…………………….………..….3 ARGUMENT…………………………………………………..…….4 CONCLUSION…………………………………………………….18 CERTIFICATE OF SERVICE…………………..………………….19 CERTIFICATE OF COMPLIANCE…………………..…….…….19

INDEX OF AUTHORITIES

United States Supreme Court

United States v. Cronic, 466 U.S. 648 (1984)…………………………………………………11

Texas Court of Criminal Appeals

Ex Parte Perez, 398 S.W.3d 206 (Tex.Crim.App. 2013)…………………………..…4

Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007)……………………………8

Texas Courts of Appeals

Ex Parte Bowman, 483 S.W.3d 726 (Tex.App.-Houston [1st Dist.] 2016)…………….6

Talamantes v. State, No. 03-07-00668-CR (Tex. App.—Austin, 2009)……………….…8

Other Authorities

“Performance Guidelines for Non-Capital Criminal Defense Representation,” Standing Committee on Legal Services to the Poor in Criminal Matters, adopted by the State Bar Board of Directors, January 28, 2011…………….…….……………………13

ARGUMENT

LACHES—The State still has an actual burden to prove prejudice stemming from unreasonable delay, and its reliance on the mere passage of time is insufficient to meet that burden.

A. The State still has a burden of proving prejudice.

There is no rebuttable presumption of prejudice to the State.1 Perez broadened the scope of facts for a court to assess prejudice, but it did not absolve the State of having to prove prejudice to benefit from the laches defense. 2 The burden of proving prejudice remains on the State. Proof of mere passage of time is insufficient to raise laches as a defense.3 B. The prejudice claimed by the State is imaginary.

The State’s perception of prejudice hangs on the difficulty of re-trying Mr. Talamantes if this conviction were overturned.4

1 Ex Parte Perez, 398 S.W.3d 206, 210 (Tex.Crim.App. 2013) 2Id. at 215 “We reaffirm Carrio’s holding…alter[ing it]…only to the extent that we now apply Texas common law, rather than the federal standard to define the parameters of the doctrine of laches in Texas habeas corpus cases.” 3 Id. at 219 4 State’s Brief, pp. 13-17

The State stipulated that the arresting officer was still with the Austin Police department,5 and the obvious presumption is that he would be available to testify at a re-trial. However, bearing the burden of proof of prejudice, the State failed to call the officer at the habeas hearing to ask whether or not his testimony at a re-trial would be adversely affected by the delay. Perhaps the State was fearful that the ordinary course of business in DWI trials would come to light on the record.

The State is in no worse position for a re-trial in this case than it is on the trial of any other DWI case. The State’s assertions that the officer would be “skewered” or “berated” 6 for relying on his report or the video ignores the reality of how police and prosecutors have to prepare for DWI trials.

There were over 49,000 crimes reported in the City of Austin in 2007, not including drug offenses, and DWIs.7

5 RR2 p. 3 6 State’s Brief pp. 8,16 7Austin Police Department Annual Crime and Traffic Report: 2008 Final Report. http://www.austintexas.gov/sites/default/files/files/Police/ 2008_crime_and_traffic_report_(reissued)_042210.pdf

There have consistently been over 3000 DWI arrests annually in Austin since the mid-1980’s, and in recent years that number has exceeded 6,000 DWI arrests annually. 8 There are currently 2300 employees of the Austin Police Department,9 though not all of those are police officers, not all police officers work patrol, nor are all patrol officers working at night when more calls come in. Factoring in that a police officer’s job also entails writing traffic tickets, responding to noise complaints, burglar alarms, and other calls for service that do not result in a reported crime, there is no way (barring a significantly unique experience with a subject) that an officer is going to remember the fine details of a DWI arrest made the month before.

This is why police reports and patrol car videos are made, and the reality is that officers have to rely heavily on those reports and videos every time they testify anyway.10

8 “Evaluation of the Austin Police Department DWI Enforcement Unit,” p. 12, fig. 3-1, U.S. Dept. of Transp. National Traffic Safety Administration. (August 2003); http://kxan.com/ investigative-story/thousands-of-dwi-arrests-in-austin-many-not-prosecuted/ 9 http://www.austintexas.gov/department/police 10 Ex Parte Bowman, 483 S.W.3d 726, 737-738 (Tex.App.—Houston [1st Dist.] 2016)

The parallels between this case and the Bowman case have been briefed by both sides. The State suggests that it is more prejudiced here than in Bowman because Mr. Talamantes had no trial and, therefore, no trial transcript to further help refresh the memory of his arresting officer. To the contrary, the State is at a greater advantage without a transcript because defense counsel has zero ability to impeach the officer’s testimony by prior inconsistent statement—a trial strategy far more effective in DWI cases than “skewering and berating” an officer for simply continuing to do his job between the time of arrest and the date of trial.

C. The State’s argument of unreasonable delay in filing the application for habeas corpus relief misstates and misinterprets the facts.

As an initial matter, the State falsely claims that Mr.

Talamantes attacked the validity of this conviction on direct appeal in his murder case.11

11 State’s Brief pp. 1, 3, 7

The State then uses its own falsehood to suggest that Mr.

Talamantes had been aware of the potential to attack this conviction for a long time. The truth is, on the direct appeal of the murder, Mr. Talamantes continued to press that the DWIs should not have been used as felony-murder predicates, despite Court of Criminal Appeals precedent.12 The State claims overturning the conviction in this case prejudices the outcome of the felony-murder prosecution. This court, like the trial court, should confine itself to addressing the claims raised in this case. Taking a “totality of the circumstances” approach to determining prejudice in the laches context is not a license to consider the irrelevant or the obscure. Moreover, any prejudice to the State to the felony-murder judgment is speculative.13

12Talamantes v. State, No. 03-07-00668-CR (Tex. App.—Austin, 2009); Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007) 13 Every morsel of prejudice claimed by the State in this case is based on speculation, given the State’s failure to procure the testimony of Mr. Talamantes’ arresting officers to at least attempt to prove some actual prejudice.

A subsequent 11.07 writ would have to be granted, an uncertainty in itself, followed by a recommendation to grant relief, followed further by a separate review of any recommended relief.

On the other hand, if a “totality of the circumstances” approach is taken toward prejudice, then it should also apply to an assessment of the reasonableness of the delay in filing for habeas corpus relief.

Mr. Talamantes is not a man who has slept on his rights. He has been in constant litigation since he was found guilty of murder, of which, this conviction was an essential element. It took over 4 years—from filing date to Court of Criminal Appeals ruling—to finally resolve the 11.07 writ in Mr. Talamantes’ murder case.

The State misconstrues the tenor of Mr. Talamantes’

testimony: it is not that Mr. Talamantes had no idea what habeas corpus is14; it is that he was unaware that this particular claim for relief existed.15 He never knew that there was a DWI video in this case, did not know to ask before he entered his plea in this case, and his appointed lawyer never suggested it. He was never told by his lawyer in the felony-murder case, nor did any of his prior post-conviction lawyers suggest, that he should re-examine the validity of his DWI convictions.

It is subjectively and objectively reasonable to expect that clients will rely on their lawyers’ advice. Lawyers are hired or appointed because of the expectation that lawyers are more knowledgeable about the law, and therefore are beneficial to their clients. It is also subjectively and objectively reasonable for a person facing a 50-year sentence for murder to focus on challenging that conviction.

14 State’s Brief p. 12-13 15 RR2 pp. 79-80, 84-85

DENIAL OF COUNSEL—The issue was properly preserved, and the State has no good answer for it.

A. The issue is raised by the application for habeas corpus.

“In the absence of a reliable alcohol concentration, DWI is essentially a crime based on opinion. Defense counsels’ total reliance on the opinions of police in Talamantes’ cases deprived him of any meaningful adversarial testing of the prosecution’s cases against him. Therefore, in both of his DWI cases, Talamantes was denied his rights to counsel…”16 ,17

Additionally, both sides presented evidence, not just about appointed counsel’s individual performance, but about the overall jail call process, because in this case proof of constructive denial and ineffective assistance was entangled in the same set of facts.

16 CR p. 20 17Deprivation of “meaningful adversarial testing” is taken from United States v. Cronic, 466 U.S. 648, 659 (1984) which the State cites in its own brief (p. 18) as the test for determining a constructive denial of counsel.

B. The State is trying to cover up the Travis County “meet & plead” jail call system.

The State’s Brief provided no answers to the systemic failing of the Travis County jail call system that results in constructive denial of counsel. The State’s brief had no counter for the fact that Mr. Talamantes and similarly situated defendants are forced to decide to go to trial: 1) without having seen the video first or, 2) after suffering additional pretrial incarceration in order to obtain the video and make a fully-informed decision.

Instead of addressing these systemic problems in its brief, the State attempts to shift appointed counsel’s duty to conduct discovery onto Mr. Talamantes, suggesting that it was up to Mr. Talamantes to divine the existence of the patrol car video. The State had ample opportunity to ask Mr. Talamantes if he actually knew there was a patrol car video on the date he entered his plea, but chose not to.18 It does not matter… It was counsel’s duty to independently explore all avenues 18 RR2 pp. 76-115 leading to relevant facts, regardless of the client’s wish to admit guilt, and determine whether the charges are factually and legally correct.19 Under no circumstances should counsel have recommended acceptance of a plea agreement unless appropriate investigation of the case had been completed, including evidence likely to be introduced at trial.20, 21 CONCLUSION

Appellant asks the reviewing court to reverse the habeas court’s ruling on the relief requested by the Appellant, set aside Appellant’s no contest plea and resulting conviction, and remand the case to the trial court for meaningful adversarial testing of his DWI charge.

19Guideline 4.1A “Performance Guidelines for Non-Capital Criminal Defense Representation,” Standing Committee on Legal Services to the Poor in Criminal Matters, adopted by the State Bar Board of Directors, January 28, 2011. 20 Id. at Guideline 6.1A. 21One of the “foremost” purposes of the Guidelines is promotion of professionalism in the representation of indigent defendants. Peruse the Guidelines. Absorb the method and process they contemplate. The Guidelines are what “Counsel” is supposed to be in the Constitutional sense of the word. Then contrast those standards with what Mr. Talamantes and his lawyers testified about the Travis County jail call operation: meet and plead in sixty minutes or less.

Respectfully submitted,

/s/ Bristol C. Myers

Bristol C. Myers

Texas Bar No.: 24009734

1411 West Avenue, Suite 200 Austin, Texas 78701

512-478-2100

512-478-2107 fax

bristol.myers@gmail.com

Attorney for the Appellant

Certificate of Service

My signature certifies that on October 10, 2016, a true and correct copy of this brief was served on all parties available through the e-file/e-service system.

/s/ Bristol C. Myers

Bristol C. Myers

Certificate of Compliance My signature certifies that, in accordance with Texas Rule of Appellate Procedure 9.4(i)(3), that the word count of this brief in its entirety as calculated by the word processing system on which this brief was written is 2,140.

/s/ Bristol C. Myers

Bristol C. Myers