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.
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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
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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:
I
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.
II
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
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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
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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.
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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
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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.
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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 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.
_____________________________________
John G. Jasuta
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