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
!2 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
!3 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 !4 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 !5 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) !6 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 !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
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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
!2 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
!3 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 !4 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 !5 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) !6 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 !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. !8 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.
!9 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 !10 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. !11 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 !12 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. !13 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
!14