                                                                       PD-0175-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 6/18/2015 11:45:53 PM
                                                       Accepted 6/19/2015 2:33:00 PM
                                                                       ABEL ACOSTA
                                                                               CLERK
                  NO. PD-0175-15

         To The Texas Court of Criminal Appeals
                     Austin, Texas


            JOSE GUADALUPE MARTINEZ,
                                     Defendant-Appellant,
                          vs.

                  THE STATE OF TEXAS,

                                     Plaintiff-Appellee.


      On Appeal From The 38th Judicial District Court
                    Real County, Texas
Trial Court No. 2012-1132-DR; Appeal No. 04-12-00739-CR

                MOTION FOR REHEARING


                                NANCY B. BAROHN
                                1202 South Alamo Street
                                San Antonio, Texas 78210
                                (210) 226-4263
                                (913) 302-6708 (cell phone)
                                Texas Bar Number: 01796500
                                nbb@airmail.net
June 19, 2015

                                Attorney for Mr. Jose Guadalupe
                                 Martinez, Petitioner-Appellant
                          MOTION FOR REHEARING

      NOW COMES JOSE GUADALUPE MARTINEZ, by and through his

undersigned attorney, and pursuant to TEX. R. APP. P. 79.2, respectfully moves this

Honorable Court to rehear its denial of his Petition For Discretionary Review.

                                        I.

                   Short Statement Of The Procedural History

      Jose Guadalupe Martinez was charged in the 38th Judicial District Court with

two counts of sexual assault of a child, and tried his case to a jury in Uvalde County,

Texas, before the Honorable Camille DuBose. Mr. Martinez was convicted at trial

and was sentenced to a total term of 15 years’ confinement. Mr. Martinez appealed

his case to the Fourth Court of Appeals which affirmed his convictions on October

29, 2014. Mr. Martinez sought discretionary review in this Court, complaining that

the Fourth Court declined to address his constitutional claims, and requested a

remand under TEX. R. APP. P. 47.1. This Court denied Mr. Martinez’s Petition on

June 3, 2015.

      We seek rehearing for the reasons which follow.




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                                           II.

                            BASIS FOR REHEARING

     This Court Should Reconsider Its Decision To Deny Discretionary Review
Because Mr. Martinez’s Constitutional Complaints Are Substantial, And He Did
Not Procedurally Default These Complaints Under TEX. R. APP. P. 38.9.

      A.     Mr. Martinez’s Case In The Trial Court.

      At trial, Mr. Martinez repeatedly sought to cross-examine the complainant and

his father, and to question complainant’s counselor from Pathways–first on State

evidentiary grounds, and when those objections were denied, on constitutional

grounds. In objecting in the trial court, and in the bills of exception, counsel cited

numerous state cases as a basis for admissibility, and cited numerous rules under the

Texas Rules of Evidence. The colloquies with the trial court were lengthy, and

repetitive, as the arguments were largely the same with each witness, and involved

the same categories of evidence. In these effort to cross-examine or otherwise

question these witnesses, counsel made multiple objections: 1) that specific evidence

was admissible to correct a false impression left by the complainant and his father,

as they were permitted to portray themselves in front of the jury in a false light, their

testimony unchallenged in any substantial way; 2) that specific evidence was

contextual; 3) that specific evidence was admissible to show the motive and bias of

the complainant; 4) specific evidence that the complainant was suffering from a

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mental illness both prior to, and during the time, that he was at Pathways where he

was being treated for bi-polar disorder which caused him to have rages; and, 5)

specific evidence as to the consequence of these rages, where complainant was

frequently punished at the juvenile facility, which included being placed in physical

restraints–and he did not want to be there–relevant to motive. .

      Mr. Martinez did not waive any of his objections at trial under either state

evidentiary rules, or on constitutional grounds.

      B.     Mr. Martinez’s Appeal.

      In his brief on appeal, Mr. Martinez set out each of the questions he wished to

ask the three witnesses, the basis for admissibility under the Texas rules argued in the

trial court, and the court’s rulings. Appellant’s Brief at 10-22. The trial court

permitted Mr. Martinez to pursue none of the lines of inquiry described above, under

any theory of law–as a matter of Texas law, or federal constitutional law. Appellant’s

Brief at 10-35. This was the basis of Mr. Martine’s overarching constitutional

complaints. Appellant’s Brief 22-35. In his brief, Mr. Martinez raised his complaints

in two points of error–one seeking review under TEX. R. APP. P. 44.2(a), the other

under TEX. R. APP. P. 44.2(b). In each of these points of error, Mr. Martinez cited

Texas decisions on point–factually and legally–which pertained to the specific areas

of inquiry he had sought to explore, and by citation to the record.

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      In affirming Mr. Martinez’s convictions, the Fourth Court of Appeals declined

to reach his constitutional issues on the ground that they were procedurally defaulted.

Martinez v. State, 2014 WL 5464157 at *9-10 (Tex.App. - San Antonio, October 29,

2014). Particularly, the Court declined to address Mr. Martinez’s larger and over-

arching constitutional claims because he failed to argue that any state evidentiary rule

arbitrarily deprived him of the opportunity to offer otherwise relevant and reliable

evidence that was vital to his defense. Id. at *11. Further, the Court noted that,

though Mr. Martinez cited and discussed authority for “broad evidentiary

propositions” that the evidence he sought to offer was admissible, he failed to explain

“why each ruling made by the trial court was “clearly erroneous.” Id. (emphasis

added). A failure to explain how each ruling was clearly erroneous, was “a necessary

prerequisite to prevail on his due process claim.” Id.

      C.     Mr. Martinez’s Brief Should Have Been Liberally Construed,
             And His Arguments And Authorities, Taken In Context And
             As A Whole, Should Not Bar Review Of His Constitutional
             Claims.

      Under TEX. R. APP. P. 38.9, briefs are to be liberally construed. Briefs are

meant to “acquaint the court with the issues in the case and to present argument that

will enable the court to decide the case”. Substantial compliance is sufficient.




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      Even if inartful, Mr. Martinez’s brief was sufficiently specific to acquaint the

court with the issues and arguments–both as a matter of state and federal law. In the

brief, Mr. Martinez specifically set out the questions he wished to ask, the basis of

admissibility, and the trial court’s rulings. These questions–of complainant, his

father, and his counselor–were directed at the same set of facts, and fell into

categorical lines of inquiry. Mr. Martinez set out numerous Texas cases involving

similar facts, where similar–if not identical–arguments were made in the lower courts,

in which it was determined that the trial court’s decision to exclude evidence was an

abuse of discretion. Indeed, Mr. Martinez made detailed and extensive arguments

under the Texas rules of evidence citing, inter alia, Poitier v. State, 68 S.W.3d 657,

663-65 (Tex.Crim.App. 2002) (a constitutional violation may arise where court

applies state law to exclude otherwise relevant and reliable evidence which “forms

such a vital portion of the case that exclusion effectively precludes the defendant

from presenting a defense”) and Simmons v. State, 548 S.W.2d 386, 388

(Tex.Crim.App. 1997) (constitutional violation of the first order where the defendant

was deprived of the opportunity to offer any testimony regarding possible motives

or bias). Appellant’s Brief at 24.

      Counsel did not merely cite these cases in the abstract, but argued case law as

applied to the trial court’s rulings. See Appellant’s Brief at 24 (“Contrary to the

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extreme limitations imposed by the trial court here, other courts have permitted the

defense to offer evidence of bias, motive, and interest on nearly identical facts.”);

Appellant’s Brief at 30 [after a lengthy discussion of various Texas cases] (“Because

the trial court deprived Mr. Martinez of any cross-examination as described here, it

misapplied Texas’s Rules of Evidence, and deprived Mr. Martinez of his state and

federal constitutional rights to present a meaningful defense through confrontation

and cross-examination.”); Appellant’s Brief at 33 (“In Texas, beyond constitutional

mandates, the admissibility of evidence is determined under the Texas Rules of

Evidence, which sets out a number of inter-related rules [citing rules and arguing

relevant decisions under the rules and applicable to the basis of Mr. Martinez’s many

objections]). After setting out numerous Texas cases finding that various trial courts

erred by excluding similar evidence on similar facts, Mr. Martinez pointed out that:

                 . . . his defense counsel believed it was necessary to make
          lengthy and detailed proffers setting out both the larger, and
          smaller, circumstances and background as a basis for cross-
          examination. While defense counsel made clear that it was not
          her intent to go into all of the instances documented and
          described, there were numerous areas which the defense should
          be permitted to explore. Though the defense provided the court
          with a deep bench of facts and circumstances as proper subjects
          of cross-examination, the jury heard not a word of any of this.
          Instead, the jury heard only the State’s version of
          events–sanitized, and presented in a vacuum.




                                          6
                 Under these facts and circumstances, the trial court’s
          severe limitations on Mr. Martinez’s right to cross-examine the
          State’s witnesses, and to present a defense, was “outside the
          zone of reasonable disagreement,” as its application of Texas
          law was unreasonable. Montgomery v. State, 810 S.W.2d 372,
          391 (Tex.Crim.App. 1990). Though presented with evidence
          through testimonial bills, records, proffers, case law, and
          numerous legal arguments, the court afforded the defense no
          latitude at all in its efforts to defend Mr. Martinez fully and
          effectively. Here, the trial court abused its discretion to admit
          or exclude evidence by acting arbitrarily and unreasonably,
          without reference to guiding rules and principles. Fox v. State,
          supra, 115 S.W.3d at 558, citing Lyles v. State, 850 S.W.2d,
          497, 502 (Tex.Crim.App. 1993). The court’s severe limitations
          on cross-examination, and evidence it would not permit through
          a defense witness, was error.

Appellant’s Brief at 37-8 (emphasis added).

      Simply put, we contend that Mr. Martinez’s arguments in his brief were

sufficient under TEX. R. APP. P. 38.9 to apprise the Court of the issues in the case, and

his arguments and authorities under Texas law were sufficient enough to support his

larger argument–that the trial court erroneously applied the rules of evidence in each

particular instance so as to exclude admissible evidence to such an extent that it

effectively prevented Mr. Martinez from presenting his theory of the defense.

Though the Fourth Court found that the cases discussed by Mr. Martinez were simply

“broad propositions of law,” they were actually focused on each of the categories of

evidence the court excluded with each of the witnesses. In hindsight, it would have



                                           7
been the better practice to have put these same cases under each of the particular

objections and arguments described in the brief, but counsel structured it differently

because the evidence the defense sought to offer, the basis for admissibility, and the

court’s rulings with each of the witnesses was essentially the same. As the trial court

excluded these entire lines of inquiry with each witness, counsel structured the brief

atypically so that it would not be needlessly repetitive. Nonetheless, when the brief

is viewed as a whole, and in context, it is clear that Mr. Martinez clearly argued the

law as it pertained to the specific categories of evidence the trial court excluded

throughout the entire trial.

      Too, we suggest, that a “ruling-by-ruling” approach as a necessary prerequisite

to constitutional review under the particular facts of Mr. Martinez’s case was far too

restrictive. The larger problem in Mr. Martinez’s case was not that the trial court

clearly erred in excluding a particular question–or whether each individual ruling was

“clearly erroneous”–but, rather, that the trial court excluded all questions pertinent

to specific lines of inquiry–lines of inquiry which, Mr. Martinez argued in his brief,

have been held admissible by this and other courts under similar facts, and in the face

of similar objections and arguments. And, we suggest, whether the trial court’s

evidentiary rulings were–or were not–“clearly erroneous” on an individual basis does

not reach or describe the true problem–that the trial court cut off all lines of inquiry

                                           8
into motive, bias, or interest; all lines of inquiry to correct false impressions left by

the complainant and his father; all lines of inquiry to put the complainant’s and his

father’s testimony in its proper context; and all lines of inquiry to place the

complainant in his environment at the time of the outcry. It was these rulings in their

totality–not one-by-one–which created the overarching deprivation of Mr. Martinez’s

constitutional right to confront and cross-examine the witnesses, and his right to a

trial that was fundamentally fair. This was how Mr. Martinez argued the issues in his

brief and, though he might have structured the brief differently or better, the Fourth

Court’s finding of procedural default is far too harsh, and fails to take account of the

totality of Mr. Martinez’s presentation.

      D.     Reasons For Rehearing.

      We assume that this Court’s denial of Mr. Martinez’s Petition for

Discretionary Review is based on the Fourth Court’s finding that his constitutional

claims would not be addressed because of a procedural default. Under the liberal

briefing rules described in TEX. R. APP. P. 38.9, and in light of Mr. Martinez’s brief

as whole, we reurge this Court to remand this case to the Fourth Court of Appeals

under TEX. R. APP. P. 47.1, to determine the merits of Mr. Martinez’s constitutional

arguments. Again, we point out that the limitations on cross-examination in Mr.

Martinez’s case are far outside the norm and, indeed, we found no case in which a

                                           9
trial court precluded the defense from pursuing all avenues of cross-examination on

matters as pedestrian as motive and bias, or as simple as “false impression” and

“contextual” evidence. Under the particular facts here, we ask that the Fourth Court’s

insistence on a “ruling by ruling” analysis as a predicate to constitutional review yield

to a liberal construction of Mr. Martinez’s brief which was more than sufficient to

apprise the Court of the issues and the applicable law.

                                       PRAYER

      FOR ALL THESE REASONS, MR. JOSE GUADALUPE MARTINEZ

respectfully prays that this Honorable Court will rehear its decision to deny

discretionary review and, thereafter, remand his case to the Fourth Court of Appeals

with instructions to review his constitutional arguments.

                                            Respectfully submitted,


                                               s/s NANCY B. BAROHN
                                            NANCY B. BAROHN
                                            1202 South Alamo Street
                                            San Antonio, Texas 78210
                                            (210) 226-4263
                                            (913) 302-6708 (cell phone)
                                            Texas Bar Number: 01796500
                                             nbb@airmail.net

                                           Attorney for Mr. Jose Guadalupe Martinez,
                                               Petitioner-Appellant


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                       CERTIFICATE OF SERVICE

     I certify that I served a true and correct copy of the foregoing Petition for

Rehearing through Texas eLaw Services on:

     Mr. Danny Kindred
     District Attorney for the
       38th Judicial District
     3102 Avenue G
     Hondo, Texas 78861
     danny.kindred@38thda.com

     Mr. Edward Shaughnessy, III
     Attorney at Law
     206 East Locust Street
     San Antonio, Texas 78212
     shaughnessy727@gmail.com

     State Prosecuting Attorney
     201 West 14th Street
     Austin, Texas 78701
     information@spa.texas.gov


           – on this the   18th       day of June, 2015.



                                      S:s NANCY B. BAROHN
                                     NANCY B. BAROHN




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                    CERTIFICATE OF COMPLIANCE

1.   Mr. Jose Guadalupe Martinez’s motion for rehearing complies with the length

     requirements set out in TEX. R. APP. P. 9.4(i)(2)(D)because:

           It contains 2,179 words exclusive of the materials specifically
           excepted under the rule.

2.   Mr. Martinez’s motion for rehearing complies with the typeface

     requirements of TEX. R. APP. P. 9.4 because:

           It has been prepared in a proportionally spaced typeface using
           Word Perfect X5, in 14-point Times New Roman style.
           Footnotes are in 12-point Times New Roman style.


DATED: June 18, 2014.



                                            s/s NANCY B. BAROHN
                                         NANCY B. BAROHN
                                        Attorney for Mr. Jose Guadalupe Martinez




                                       A-1
                          CERTIFICATE OF COUNSEL

      Pursuant to TEX. R. APP. P. 79.2(b), counsel certifies that his motion for

rehearing is made in good faith and not for purposes of delay. Mr. Martinez’s

constitutional claims are substantial, and we have found no other case where all lines

of inquiry through traditionally accepted modes of cross-examination were precluded

in their entirety at trial–and with a number of witnesses. The nature of the evidentiary

exclusions in Mr. Martine’s case–both substantively and repetitively–do not lend

themselves to a “ruling by ruling” treatment as a predicate to constitutional review.

      This motion is not made for purposes of delay.                On the contrary, a

determination of Mr. Martinez’s constitutional claims now, on direct review, will be

a far more economical use of judicial time than addressing these same issues again

on collateral review as part of an ineffective assistance of counsel claim. Where there

has been a procedural default through counsel’s briefing, and in the face of

substantial constitutional violations, she believes it will be incumbent upon her to

confess her ineffectiveness on this issue should Mr. Martinez wish to seek post-

conviction relief under ART. 11.07, TEX. CODE CRIM. PROC.



                                              s/s NANCY B. BAROHN
                                           NANCY B. BAROHN


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