                                                                      WR-81,581-01
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 4/24/2015 9:03:01 AM
                         No. WR-81,581-01                Accepted 4/24/2015 9:10:09 AM
                                                                         ABEL ACOSTA
                                                                                 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                                                           RECEIVED
                                                    COURT OF CRIMINAL APPEALS
                                                           4/24/2015
                 Ex parte Demontrell Miller           ABEL ACOSTA, CLERK
                             Applicant

On Petition for Post-Conviction Writ of Habeas Corpus Pursuant
to Article 11.07 § 3, et seq., C.Cr.P., in Case No. 241-1251-08 in
             the 241st District Court of Smith County


                Motion for Rehearing

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

     COMES NOW, Demontrell Miller, Applicant, by and through

David A. Schulman and John G. Jasuta, his undersigned

attorneys of record, and respectfully files this motion for rehearing,

and would show the Court:

                        Procedural History

     Applicant was convicted of capital murder and a death

sentence was imposed. On December 8, 2009, the habeas court

appointed the undersigned to represent Applicant in a post-

conviction proceeding under Article 11.071, C.Cr.P. On January

6,   2012,   after   completing   a   thorough   investigation,        the
undersigned filed the habeas corpus application required by the statute.

     In the habeas corpus application, the undersigned raised five

separate and distinct claims on Applicant’s behalf:

 1. Applicant was Denied Due Process When the State Improperly
    Invoked “The Witness Rule,” Which Effectively Excluded
    Thirty-Three of Applicant’s Friends and Family Members from
    the Courtroom.

  2. Applicant was Denied Due Process and the Effective
     Assistance of Counsel Under the Sixth Amendment When the
     Trial Counsel Either Assisted the State’s Efforts to Improperly
     Invoke “The Witness Rule,” Which Effectively Excluded
     Thirty-Three of Applicant’s Friends and Family Members from
     the Courtroom, or, at a Very Minimum, Took No Steps to
     Prevent the State from Doing So.

  3. Applicant Was Denied the Effective Assistance of Counsel
     When Trial Counsel Failed to Adequately Prepare a Case in
     Mitigation of the Death Penalty and/or Prepare Any Real
     Defensive Punishment Theory.

  4. Applicant Was Denied Due Process by the “10-12” Rule of
     Article 37.071 § 2(d)(2) and § 2(f)(2), Texas Code of Criminal
     Procedure.

  5. Applicant’s Rights under the Eighth and Fourteenth
     Amendments to the U.S.’ Constitution Are Violated By Texas’
     Death Penalty Scheme, as the Jury’s Assessment of the Death
     Penalty is Not Truly Subject to Judicial Review.

     Over the next nearly three years, the undersigned made

numerous requests for discovery and for an evidentiary hearing.

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The habeas court refused to provide Applicant with the

opportunity to prove his claims. Then, on September 24, 2014,

the habeas court entered is findings of fact and conclusions of law,

recommending that this Court deny relief. On April 15, 2015, this

Court denied Applicant habeas corpus relief “upon the trial court’s

findings and conclusions and our own review.”

         Arguments in Favor of Reconsideration

    The undersigned is fully aware that this Court has denied

claims exactly like or similar to the claims Applicant raised in the

fourth and fifth grounds for relief. He asserts, however, that those

must be included if they are ever to be asserted in federal court,

and that the fact that they have been overruled time and again is

of no importance, as the Supreme Court can and sometimes does

do a complete turn about on important issues, and if they have

not been properly raised and exhausted, such claims are waived,

even though the Applicant might otherwise be entitled to relief.

See Sunal v. Large, 332 U.S. 174 (1947).




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                                 I

    As to Applicant’s first three claims for habeas corpus relief,

the undersigned asserts that each includes “previously unresolved

factual issues material to the legality of the Applicant's

confinement.”    Consequently, and with all due respect, the

undersigned suggests that the Court’s decision to adopt the

habeas court’s findings and conclusions is in error.

    For example, the affidavit of trial counsel, Melvin Thompson

provided to the State and filed on August 20, 2012, conflicts with

the affidavit he personally provided to Applicant dated January 4,

2012. Additionally, the affidavit Luanda Lacey provided to the

State is contradictory both Mr. Thompson’s affidavit and is totally

incongruent with the factual allegations set out in the numerous

affidavits submitted with the habeas corpus application.

                                II

    In Applicant’s first ground for relief, he claimed, pursuant to

Waller v. Georgia, 467 U.S. 39, 46 (1984), and Presley v.

Georgia, 558 U.S. 209 (2010), that the State improperly invoked




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“the Rule,”1 which effectively excluded thirty-three of Applicant’s

friends and family members from the courtroom, all of whom were

supporters of Applicant.           In his second ground for relief, he

claimed that trial counsel was ineffective when he either assisted

the State's efforts to improperly invoke the Rule, or, at a very

minimum, took no steps to prevent the State from doing so.

       In support of his claim that he was denied due process and

the effective assistance of counsel by the improper exclusion of his

supporters from the courtroom during his trial, Applicant

respectfully recommends the decision of the Fourth Court of

Appeals in Cameron v. State, 415 S.W.3d 404 (Tex.App. - San

Antonio 2013).        In Cameron, the Court of Appeals held that,

because members of the defendant’s family were excluded from the

courtroom        during    preliminary      voir        dire   proceedings,   the

defendant’s constitutional rights were violated, and the defendant

was entitled to a new trial.

       Subsequently,        in    Cameron          v.     State,    PD-1427-13

(Tex.Cr.App. October 8, 2014), this Court determined that the trial


 1
     See Rule 614, Tex.R.Evid. (“Exclusion of Witnesses”).

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court was, in fact, closed at a critical stage at the proceedings.

Because the trial court had not made findings which would

“support a legitimate overriding interest for this closure,” the

Court affirmed the Court of Appeals’ decision and remanded the

case for a new trial. Nothing less is due here.

    While there appears to be a dispute regarding how many of

Applicant’s supporters were excluded from the Court, the

allegation in the habeas corpus allegation, that a significant

number of Applicant’s supporters were excluded by either the

action of the trial court or the State of Texas, or both, should be

sufficient to warrant a hearing.      In truth, the constitutional

underpinnings of the cases regarding exclusion of supporters from

the courtroom has nothing to do with the number of persons

excluded from that court room. Presley, 558 U.S. at 210,

concerned the exclusion of one person. Any dispute as to the

number excluded by use of the Rule is irrelevant to the

constitutional issues presented. The allegation, and the proffered

proof, is certainly sufficient, in and of itself, to demonstrate that




                                 6
there are “previously unresolved factual issues material to the

legality of the Applicant's confinement.”

                                 III

     Finally, in Applicant’s third ground for relief, Applicant

claimed, pursuant to Wiggins v. Smith, 539 U. S. 510 (2003);

Coble v. Dretke, 444 F.3d 345 (5th Cir. 2006); and Williams v.

Taylor, 529 U.S. 362 (2000), that he was denied the effective

assistance of counsel at the punishment phase. In support of this

claim, Applicant presented numerous affidavits and a substantial

amount of documentary evidence.         As with Applicant’s second

ground for relief, it is clear the affidavits and documentary exhibits

provided in support of Applicant’s habeas corpus application call

into question the very idea that trial counsel conducted any sort

of meaningful mitigation investigation or introduced anywhere

near the appropriate amount of evidence during the punishment

phase of the instant trial.

     The evidence presented by Applicant (attached to the habeas

corpus application) demonstrates a failure to investigate and/or

prepare a case in mitigation. Not only are trial counsel’s affidavits


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contradicted by the evidence attached to the habeas corpus

application, nothing in the affidavits supports the habeas court’s

findings and conclusion.

                           Conclusion

    The habeas court’s findings and conclusions are not

supported by the record, unless ignores the contradictions in the

affidavits and the documentary evidence. In this death penalty

case, there are previously unresolved factual issues material to the

legality of the Applicant's confinement, and such issues as those

presented require resolution through a courtroom exchange. The

habeas court’s findings and conclusions are unsupported in fact

and unsupportable in law. They should have been, and should

be, rejected. Absent a full factual exploration of the facts and

circumstances giving rise to Applicant grounds for habeas corpus

relief, the material facts at issue remain unresolved.

                             Prayer

    WHEREFORE, PREMISES CONSIDERED, Applicant and the

undersigned respectfully pray that the Court will reconsider its

action of April 15, 2015, on its own initiative, vacate its written

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order of that date, and remand the case for a live evidentiary

hearing, so that Applicant may have the opportunity to prove the

claims made in his habeas corpus application.

                    Respectfully submitted,



_______________________________       ________________________________
John G. Jasuta                        David A. Schulman
Attorney at Law                       Attorney at Law
Post Office Box 783                   Post Office Box 783
Austin, Texas 78767-0783              Austin, Texas 78767-0783
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 Demontrell Miller




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         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 1,441 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 24, 2015, a true and correct copy of the above and foregoing

“Motion for Rehearing” was transmitted via the eService function

on the State’s eFiling portal, to Michael J. West (mwest@smith-

county.com), counsel of record for the State of Texas.



                            ______________________________________
                            David A. Schulman




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