Hatten, Larry

• Court: Court of Appeals of Texas
• Decided: March 4, 2015
• Docket: WR-51,110-02
• Status: Published

Opinion

WR 51,110-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/4/2015 12:04:59 PM Accepted 3/4/2015 2:03:13 PM ABEL ACOSTA NO. 95-CR-3244-H CLERK

RECEIVED COURT OF CRIMINAL APPEALS EX PARTE LARRY HATTEN 3/4/2015 ABEL ACOSTA, CLERK

***

IN THE DISTRICT COURT

347TH DISTRICT

NUECES COUNTY, TEXAS

Returnable to

Nos. WR 51,110-02 &WR 51,110-03

THE TEXAS COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

PETITIONER HATTEN’S UNOPPOSED MOTION FOR CONTINUANCE OF EVIDENTIARY HEARING UNDER ART. 11.071

TO THE HONORABLE DISTRICT COURT AND COURT OF CRIMINAL APPEALS:

Comes now Applicant Larry Hatten, and files his motion to continue the evidentiary

hearing currently set for March 6, 2015 at 9:00AM, before the 347th Judicial District Court in

Nueces County, Texas, and for extension of time to resolve the claims raised in the Writ

Application, and would respectfully show the Court as follows: 1. On October 13, 2014, the Texas Court of Criminal Appeals entered an Order directing the

347th District Court of Nueces County, Texas, to comply with the dictates of Article 11.071

concerning the Writ Applicant had filed in 1997. This Order also stayed Applicant's execution

pending the resolution of the claims in this Writ Application. Further, the Court of Criminal

Appeals directed the District Court to resolve the claims raised in the application and to return

the case to the Court of Criminal Appeals within 180 days of the Order. As such, the District

Court set the Application for hearing on March 6, 2015, at 9:00 A.M.

2. Counsel cannot find an expert psychiatrist that is willing to consult and/or testify on

Hatten’s case for the amount the state district court is willing to pay (less than $15K). Counsel

previously requested Dr. Victor Scarano of Houston, the psychiatrist who is most familiar with

Hatten’s complex and prolonged psychiatric and medication history, whose fee request was

denied by the District Court. Dr. Scarano is unwilling to further assist in the case. Counsel have

so far been unable to locate another psychiatrist, with the expertise or background willing to

assist in the case.

3. Additionally, defense counsel have been unable to locate Juror Reginald Hollins. Hollins,

a juror during the trial who was acquainted with Applicant, is a needed witness in support of the

shackling during guilt-innocence phase claim, which claim also relates to the ineffective

assistance of counsel issue. Hollins has not been able to be located and undersigned counsel do

not have the funds for an investigator to locate Hollins.

4. Further, counsel McGuire’s two office computers both crashed two weeks ago due to

electrical problems, had to be each replaced, and data painstakingly recovered over a period of

one week, and materials pertaining to Hatten’s evidentiary hearing were lost.

2 5. According to General Counsel for the CCA, who recently spoke with the undersigned

counsel, defense counsel Barroso and McGuire may not be eligible to be appointed as state

habeas counsel because neither Barroso and McGuire work for the Office of Capital Writs under

Code of Criminal Procedure Art. 11.071 § 2(c), nor are either counsel on the statewide list of

approved state habeas counsel under Art. 11.071 § 2(f). Additionally, according to the CCA

General Counsel, counsel’s prior appointment for the competency to execute hearing under CCP

Art. 46.05 is separate and apart from any appointment to serve as state habeas counsel under

CCP Art. 11.071 §2.

6. Due to the uncertainty of whether counsel are in fact appointed at this time as Hatten’s

state habeas counsel, or whether they will be paid for their work, defense counsel propose to

move for authorization from the U.S. District Court for Southern District of Texas, Corpus

Christi Division, to represent Hatten in pending state habeas proceedings under their previous

federal appointment under 18 U.S.C. § 3599(e), and for expert funding for a needed psychiatric

expert and defense investigator under 18 U.S.C. § 3599(f).

7. Undersigned Counsel have conferred with Assistant Nueces County District Attorney

Douglas K. Norman concerning this Motion for Continuance and he is unopposed to the granting

of this Motion. The Honorable Missy Medary, District Judge for the 347th District Court, Nueces

County, also stated at a status conference yesterday that the Court is unopposed to the proposed

course of action by undersigned counsel concerning federal authorization for funding and a 180-

day extension of time to resolve the claims raised in the Writ application and to return the case to

the Court of Criminal Appeals.

Counsel are therefore requesting a continuance of the evidentiary hearing for 180 days, to

allow counsel adequate time to request authorization to continue as state habeas counsel under

3 their previous federal appointment under 18 U.S.C. § 3599(e), for expert funding for a needed

psychiatric expert and defense investigator under 18 U.S.C. § 3599(f), and to adequately prepare

for the evidentiary hearing with a needed defense psychiatric expert and defense investigator.

PRAYER

Mr. Hatten requests that this Court grant his Motion for Continuance of the Evidentiary

Hearing and extension of time to resolve the claims raised in the Writ application for 180 days, to

allow time for counsel to request authorization from the U.S. District Court for the Southern District

of Texas to continue as state habeas counsel under their previous federal appointment under 18 U.S.C.

§ 3599(e), and for expert funding for a needed psychiatric expert and defense investigator under 18

U.S.C. § 3599(f).

Respectfully submitted,

BY: /s/ Ron Barroso Ron Barroso Law Offices of Ron Barroso 5350 S. Staples, Ste. 401 Corpus Christi, TX 78411 Telephone: (361) 994-7200 Facsimile: (361) 994-0069 rbarrosolaw@interconnect.net

4 BY: /s/ Ken McGuire Kenneth W. McGuire McGuire Law Firm Federal Admission No. 21917 State Bar No. 00798361 P.O. Box 79535 Houston, TX 77279 Telephone: (713) 223-1558 Facsimile: (713) 335-3340 kennethmcguire@att.net

Attorneys for Defendant LARRY DEAN HATTEN

CERTIFICATE OF SERVICE

I, Ken McGuire, do hereby certify that on this March 4th , 2015, a copy of the foregoing Motion was served by E-mail service to the following counsel of record:

Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410 (361) 888-0399 (fax) douglas.norman@co.nueces.tx.us

/s/ Ron Barroso Ron Barroso