Robbins, Ex Parte Neal Hampton

• Court: Court of Appeals of Texas
• Decided: April 27, 2015
• Docket: AP-76,464
• Status: Published

Opinion

AP- COURT OF CRIMINAL APPEALS AUSTIN, TEXAS April 27, 2015 Transmitted 4/24/2015 4:18:22 PM Accepted 4/27/2015 9:07:36 AM NO. AP-76,464 ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

EX PARTE NEAL HAMPTON ROBBINS, Applicant

IN THE 410TH DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS

Application for Writ of Habeas Corpus from the 410th District Court of Montgomery County, Texas No. 98-06-00750-CR-A

APPLICANT’S SUPPLEMENTAL MOTION FOR RECONSIDERATION ON COURT’S OWN MOTION

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

NEAL HAMPTON ROBBINS, Applicant, by Counsel, BRIAN WICE,

pursuant to TEX.R.APP.P. 79(2)(d), files this Supplemental Motion for

Reconsideration on this Court’s Own Motion and in support thereof shows

this Court the following:

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

The statement of the case, its procedural history, and disposition

may be found in Ex parte parte Robbins, Robbins ___ S.W.3d ___ 2014 WL 6751684

(Tex.Crim.App. Nov. 26, 2014). Simply put, this Court granted Applicant

habeas corpus relief in a 5-4 decision, with six different members of this

1A Court issuing separate opinions. Two days before its motion for rehearing

was due, the State filed a request for an extension asking for an additional

30 days to do so. Less than 24 hours after Applicant’s motion objecting to

the State’s request was filed, this Court, over the dissents of Judges Price,

Johnson, Cochran and Alcala, gave the State until December 18, 2014 to

file its motion for rehearing, noting that no additional extensions would

be entertained. The State’s motion has been pending ever since.1

JURISDICTION

This Court, on its own initiative, may reconsider a prior denial of

habeas corpus relief. Ex parte Moussazadeh, Moussazadeh 361 S.W.3d 684, 687

(Tex.Crim.App. 2012).

GROUND FOR RECONSIDERATION ON THIS COURT’S OWN MOTION

Applicant is entitled to habeas corpus relief because he was denied a fundamentally fair trial with an accurate result.

ARGUMENT AND AUTHORITIES

On January 1, 2015, three new members of this Court took their

1 By contrast, two motions for rehearing filed by the State in cases which it lost in late 2014 were acted on with relative alacrity. In Cameron v. State, PD-1427-13, a 6-3 decision, the State’s motion for rehearing was filed on November 7, 2014 and granted on January 28, 2015. And, in State v. Villarreal, PD-0306-14, a 5-4 decision, the State’s amended motion for rehearing was filed on December 19, 2014 and granted on February 25, 2015.

2 seats, replacing the three members of the Court, constituting 3/5 of the

majority in Robbins II. II The three new members have undoubtedly poured

over the briefs of the parties, the many amicus briefs filed on Applicant’s

behalf, the oral argument recording, the State’s motion for rehearing, and

the responses thereto filed by Applicant and his amicus. But it is

certainly possible that the newest members may not have realized that a

motion for reconsideration of Robbins I on this Court’s own motion was

filed on November 4, 2013, one never acted on given the Court’s grant of

relief in Robbins II. II

This motion is filed to not only bring Applicant’s original motion for

reconsideration on its own motion to the attention of the Court, but to

provide it with both the opportunity and the vehicle for it to honor what

four judges in Robbins I and five judges in Robbins II have made clear:

“[I]f the criminal justice system – even when its procedures were fairly followed – reaches a patently inaccurate result ... the judicial system has an obligation to set things straight. Our criminal justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result. If either of those two promises are not met, the criminal justice system itself falls into disrepute and will eventually be disregarded.”

Thompson 153 S.W.3d 420, 421 (Tex.Crim.App. 2005)(Cochran, Ex parte Thompson, 3 J., joined by Holcomb, J., concurring); see also Ex parte Henderson, Henderson 384

S.W.3d at 850 (Cochran, J., concurring)(“I agree that applicant did not

receive a fundamentally fair trial based upon reliable scientific

evidence.”). Because Applicant’s trial was not fair and did not produce a

reliable result, the Court, three members of which did not participate in

either Robbins I or Robbins II, II should now reconsider its earlier denial of

relief in Robbins I and conclude that Applicant is entitled to a new trial.

PRAYER FOR RELIEF

Applicant prays that this Court grant this motion for reconsideration

on its own motion in Robbins I in the event it grants rehearing in Robbins

II, II grant the relief herein requested, and, for all the reasons previously

stated, deny the State’s motion for rehearing in Robbins II. II

RESPECTFULLY SUBMITTED,

/s/ Brian W. Wice ______________________________ BRIAN W. WICE 440 Louisiana Suite 900 Houston, Texas 77002-1635 (713) 524-9922 PHONE (713) 236-7768 FAX Bar No. 21417800

COUNSEL FOR APPLICANT Neal Hampton Robbins 4 CERTIFICATE OF SERVICE

Pursuant to TEX.R.APP.P. .P 9.5(d), this document was served Bill

Delmore of the Montgomery County District Attorney’s Office, 301 North

Thompson, Conroe, Texas, 77301, and on State Prosecuting Attorney Lisa

McMinn, P.O. Box 130046, Austin, Texas, 78711, by e-filing on April 24,

2015.

/s/ Brian W. Wice _________________________________ BRIAN W. WICE