Furtick, Fritz

• Court: Court of Appeals of Texas
• Decided: April 13, 2015
• Docket: WR-83,110-01
• Status: Published

Opinion

WR-83,110-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/13/2015 7:26:16 AM No. WR-83,110-01 Accepted 4/13/2015 8:16:08 AM ABEL ACOSTA CLERK Ex parte Fritz Allen Furtick RECEIVED COURT OF CRIMINAL APPEALS In the Court of Criminal Appeals of Texas at Austin 4/13/2015 ABEL ACOSTA, CLERK

Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case Number 02-CR-3060-B, from the 117th District Court of Nueces County

Notice of Filing Objections and Request for Stay in Proceedings Pending Resolution of Issues

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, Fritz Allen Furtick, Applicant in the above

styled and numbered cause, by and through John G. Jasuta and

David A. Schulman, his undersigned attorneys, and respectfully

files this “Notice of Filing Objections and Request for Stay in

Proceedings Pending Resolution of Issues,” and would show the

Court as follows:

I

On April 6, 2015, the convicting (“habeas”) court entered its

findings of fact and conclusions of law, which were subsequently

forwarded to this Court by the District Clerk of Nueces County and received by the Clerk of this Court on April 9, 2015. Applicant

would show the Court that the findings and conclusions at issue

are not supported by the habeas record and fail to properly apply

the law relating tothe allegations made and the evidence proffered.

II

On April 13, 2015, Applicant filed his objections to the habeas

court’s Findings of Fact and Conclusions of Law in that court. A

true and correct copy of Applicant’s objections is attached as

Exhibit “A” to this document.

Prayer

WHEREFORE, PREMISES CONSIDERED, Applicant, Fritz

Allen Futrick, respectfully prays that this Honorable Court will

stay the proceedings for a reasonable period of time, not to exceed

sixty (60) days, to enable the habeas court to rule on the

objections filed with it.

2 Respectfully submitted,

_______________________________ ________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law Post Office Box 783 Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 eMail: lawyer1@johngjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 Tel. 512-474-4747 Fax: 512-532-6282 Fax: 512-532-6282

State Bar No. 10592300 State Bar Card No. 17833400

Attorneys for Applicant Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X6 software, contains 325 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on April 13, 2015, a true and correct copy of the above and foregoing “Notice of Filing Objections and Request for Stay in Proceedings Pending Resolution of Issues” was transmitted via electronic mail (eMail) to James Odell (james.odell@nuecesco.com), Attorney of record for the State of Texas.

_____________________________________ John G. Jasuta

3 Exhibit “A” No. 02-CR-3060-B

Ex parte Fritz Allen Furtick

In the 117th District Court Nueces County, Texas

Applicant’s Objections to the Habeas Court’s Findings, Conclusions and Recommendations

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Fritz Allen Furtick, Applicant in the above styled and

numbered cause, by and through and respectfully files these objections to

the to Habeas Court’s findings, conclusions and recommendations, and

would respectfully show the Court as follows:

Applicant’s habeas corpus application was forwarded to the District

Clerk for filing and provided to counsel for the State of Texas on March 4,

2015. The State filed its answer on March 26, 2015, and provided a copy

to the undersigned on April 1, 2015. On April 6, 2015, the habeas court

signed its “Findings of Fact, Conclusions of Law, & Recommendation.”

Applicant’s General Objection The habeas court’s findings are perfunctory and do not discuss in any

depth, either the allegations, the State’s answer or the evidence proffered.

Applicant has stated facts, which if true, would entitle him to relief. Applicant’s Specific Objections I

The first finding, that there is sufficient evidence in the record to rule

is plainly unsupported by the record and fails to take into account new

evidence as well as more recent law regarding the subject.

The second finding, that the assertions within the State’s Answer are

correct, fails to differentiate between the facts stated in that Answer. Is the

habeas court relying on assertions of fact supported by affidavit of assistant

district attorney who swore that memories were affected without speaking

to anyone whose memories might have been so affected? The deficiencies

of the State’s Answer have not been considered by the habeas court.

III

In the third finding, the habeas court finds that Applicant raised his

claim of ineffective assistance of counsel to the Court of Appeals on direct

appeal and that it cannot, therefore, be re-litigated. The Finding is

incorrect, however, as Applicant has raised a distinct allegation of ineffective

assistance of counsel which was not raised on direct appeal and, therefore,

was not addressed on direct appeal. Additionally, the claim could not have

been raised on direct appeal. A review of the Court of Appeals’ opinion on

direct appeal will demonstrate the State’s Answer, and the Finding based

on it, to be incorrect.

2 On direct appeal, appellate counsel misstated trial counsel’s actions.

It was represented to the Court of Appeals that trial counsel had failed to

request the assistance of an expert witness, and that failure was identified

as the failure constituting ineffective assistance of counsel. However, as the

record also reflects, and as shown in the instant application, trial counsel

did, in fact, request the appointment of an expert. What she did not do, and

what is alleged in the instant application as deficient conduct, and that

which has gone unanswered by the State, and unaddressed by the habeas

court in this incomplete finding, was to seek additional funding, after it

became clear to her that the expert she wanted to hire could not be retained

for the sums authorized by the trial court.

The supporting affidavit filed with the application for writ of habeas

corpus in this cause absolutely does contain additional information. The

affidavit establishes that trial counsel did not request additional funding,

either on the record or off, and that it was not a strategic decision to forego

the use of an expert witness but, rather, one of economics. As such, the

present affidavit both presents a new and previously unavailable claim, and

admits to ineffective assistance of counsel.

IV

Additionally, as demonstrated within the Memorandum of Law filed

simultaneously with this application, the failure identified as deficient

conduct has, since the appeal in this case, been recognized as deficient

3 conduct by the United States Supreme Court in Hinton v. Alabama,

13-6440 (February 24, 2014). The habeas court has completely failed to

address the Supreme Court’s ruling in Hinton, upon which the application

is, in large part, based, in all likelihood, on the State’s failure to address the

effect of Hinton in its Answer.

V

In its fourth Finding, the habeas court finds that the Applicant has not

shown that an expert was available and that he would have benefitted from

his or her evidence. Applicant would refer the Court, however, to the

affidavit filed by trial counsel in support of the application, in which it is

stated that the expert would have assisted in showing that her client was

not a sexual predator. Applicant pled not guilty and protested his

innocence. While a positive psychological evaluation would not have altered

the outcome on guilt or innocence, its relevancy as evidence in mitigation

of punishment cannot be denied.

If the habeas court is finding that the Applicant did not bring the

actual expert forward, the Court has, by its finding, identified a factual and

material issue in need of resolution. That factual issue is whether trial

counsel’s assertion that the expert witness she consulted, and who she

believed she could not afford, would have provided evidence which would

have altered the outcome of the trial. The habeas court, instead of resolving

that factual issue, relied solely on the State’s Answer without discussion of

4 the evidence which demonstrated both witness availability and the positive

benefit which would have been derived from the use of that evidence. Trial

counsel swore that the expert witness would have changed the outcome of

the trial, yet this assertion is dismissed without discussion. Applicant

would submit that his burden has been met and that the Finding by the

habeas court is erroneous.

VI

Lastly, the habeas court finds laches. However, there is absolutely no

support for the finding either in the facts or in the law.

While the implication of the State’s answer, and the habeas court’s

finding, is that the State is, somehow, in a less favorable position, there was

no evidence to support such a finding other than platitudes concerning

“diminished memories of trial participants.” Totally missing was anything

of an evidentiary nature supporting the claims made in the State’s answer.1

Given that all relevant testimony regarding guilt or innocence was

given, and preserved, this hardly seems an impediment to either a coherent

State’s answer to the habeas petition or the ability to retry Applicant,

should that prove necessary. While the habeas court fails to discuss its

findings in any detail, the State discusses and dismisses the amount of

evidence it must show to support a laches claim. The Court, however,

1 Counsel for the State did verify the State’s answer in front a notary, but his assertions that “the trial participants' memories would be diminished,” is clearly not something within his personal knowledge.

5 should recognize that the State has shown no evidence supporting this

Finding whatsoever.

The State’s ability to litigate a new punishment hearing has not been

in any way prejudiced by any delay in presenting the application, because

the State can introduce all of the testimony from the previous trial, plus any

additional evidence relevant to punishment, regardless of any loss of

memory as to the actual events.

VII

The State’s answer cannot be relied upon because it is unsupported

by proper evidence. If the State’s attorney had spoken to witnesses and had

determined some loss of memory on the witness’ part, despite the

irrelevance of that loss of memory to any issue, it is incumbent on the State

to show the witness’ present statement. It is also necessary for the State to

explain how the loss of even all memory on the part of the Complainant

would, in any manner, handicap the State’s efforts at either its answer or

re-trial. In this requirement, both the State, and the laches Finding based

thereon, have wholly failed.

The State’s representative swears that, “In this case” . . . “[t]he State

would be burdened in its ability to retry the case,” and “the trial

participants' memories would be diminished.” Applicant would show the

Court that the State’s attorney presented no evidence upon which reliance

is had to show that any memories would be diminished or that the State

6 would, in any manner, be prejudiced by any delay, much less the delay of

which it complains. Since this is not the type of fact of which the affiant

would have personal knowledge, and in the absence of any evidence

showing loss of memory or any type of prejudice, Applicant would assert

that the State’s Answer, particularly with regard to any argument or fact

regarding laches, unsupported as it is by credible oath, law or evidence,

must be disregarded and stricken. Instead, however, and in apparent

reliance on the State’s unsupported representation, the habeas court finds

laches should bar consideration. In this regard, the habeas court’s Finding

is entirely erroneous as being without support either in fact or law.

Prayer WHEREFORE, PREMISES CONSIDERED, Applicant, Fritz Allen

Futrick, respectfully prays that the habeas court will withdraw its findings

of fact as (1) being unsupported by the evidence, (2) incomplete in their

failure to specifically address the contentions raised, (3) incomplete in their

failure to address recent constitutional precedent from the United States

Supreme Court, and (4)based on mischaracterization of the evidence

proffered by Applicant, and instead find that Applicant has demonstrated

that Applicant was denied the effective assistance of counsel as set out

within the application.

7 Respectfully submitted,

__________________________________ ___________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law Post Office Box 783 Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 eMail: lawyer1@johngjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 Tel. 512-474-4747 Fax: 512-532-6282 Fax: 512-532-6282

Attorneys for Applicant

Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X6 software, contains 1,905 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on April 13, 2015, a true and correct copy of the above and foregoing “Applicant’s Objections to the Habeas Court’s Findings, Conclusions and Recommendations” was transmitted via electronic mail (eMail) to James Odell (james.odell@nuecesco.com), Attorney of record for the State of Texas.