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CAUBE NU. 868139-5

 

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Charles Elaude Earlton § of A@@ 113&%13
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Applicant §

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Ubjections And Response To

The Trial Eourt's Ruling
Pursuant To Texas Code of Briminal Procedure
Article 1107 (Uest 20135, Under Rule 73.4(29.

The report from the Department of Veteraan Affairs (diagnosis of P.T.S.D.)
dated December 9, 2013 and attached to Applicant's writ Application clearly
shows a New Factual Basis in overcoming the procedural bar to Applicant's
grounds for relief in this instant habeas proceeding. No mental issue of com-
bat;related Post Traumatic Stress Disorder was ever known until_July 2013, not
at trial in 2002 on 1st habeas writ in ZUUB.

Exceptions to the Subseguent writ Bar of
Article 11.07, Section h
Burden of Proof Necessary Under Article's 11.075 and 11.07, §h

Applicant Earlton's first ground in the instant 11.07 application, income
petency in fact at the time of his guilty pleas on Uctober 22, 2001, relies upon
relevant medical evidence of (P.T.S.D.) which developed after his sentencing:
i.e., outside the time frame for a fate claim. Likewise¢ Applicant's second
ground, ineffective assistance of trial counsel during the punishment phase,
relies upon (P.T.S.D.) as previously unavailable factual evidence, when his

initial 11.07 application was considered on March 19, ZUDB.

11.073 Burden of Proof
Applicability:

11.073(a)(1):

Texas Eode of Eriminal Procedure Article 11.873(a)(1) applies to Appli~
cant Earlton's combat-related Post-Traumatic Stress Disorder (P.T.S.D§), dis-
covered in 2813 (See Exhibit 1; attached). Earlton's clinically recognized dis-
order was not available to be offered at his trial in 2881, and is relevant to

competency. SBe 80uchillon v Eollins, 987 F.2d 589, 592 n.7 (Eth Eir. 1998).

 

Availability:
11.873(b)(1):

Habeas Eorpus relief is available for Applicant Earlton‘s Article 11.87
application raising the issue of incompetency in fact, not requested at the
time of trial. 5ee Ex parte Tuttle, AAE S.U.Zd 194, 198 (Tex. Brim. App. 1969);
ZaEata v Estelle, 588 F.2d 1817, 1821 (5th Eir. 1979); and b
11.873(b)(1)(A):

Relevant "soft" scientific evidence of (P.T.S.D.), discovered by psychia-
trists at the Veterans Administration Medical 8enter in 2813, was not available
at the time of trial in 2881, because Applicant Carlton was not examined for
any service-connected disorders before or during his trial. And as an indigent
defendant, he was not required to employ his own expert. SEe Ake v Uklahoma,

478 U.B. 68 (1965).
11.873(b)(1)(8):

Testimony pertaining to Applicant Earlton‘s suffering from (P.T.S.D.) at
the time of his guilty pleas and sentencing would be admissible, as expert opin-
ion at a trial held on the date of application, assisting the trier of fact with
understanding the evidence or to determine a fact issue. 5ee TEXAS RULES UF
EVIDENEE 782; and k
'|1-13\73(!3)(?_):*');y

EvidenceyofeApplicant‘s (P.T.S.D.), not presented at trial, supports a

finding by the trial court that, by a preponderance of the evidence, Mr. Carlton

would not have been convicted. Here, the plain language of Subsection (b)(2)'s

v

phrase "would not have been convicted," like the outcome determination test of
Strickland, does not turn on the validity of the result, viz, guilt or inno-
cence, but competence: Since to "convict" an incompetent person is a per se
due process violation, guilt or innocence is irrelevant. Ef, Ex parte Robbins,
No. mr-73, 484-82.
11.873(c) & (d) Diligence:

For purposes of determining whether Applicant's claim of incompetence in
fact could have been presented in his previously considered 11.87 application,
Applicant was diligent in seeking help for his mental condition at the Veterans
Administration Medical Center in 2888. Too, Applicant informed Mr. Loper of the
care he received at (V.A.M.E.). And inspector Eddie Rodriguez informed Judge
Eampbell about Earlton's history of mental problems. Again, Mr. Earlton com-
plained on appeal, and appellate counsel, Mark Rubal, obtained affidavits re-
garding the lack of expert psychological assistance for trial. Applicant's
mother and other family members also testified on his behalf regarding mental `\
issues.

Further, in making its findings as to whether relevant scientific evidence
was not ascertainable through the exercise of reasonable diligence on or before ~»~
Applicant's initial 11.87 application was considered, developments in identify-
ing and diagnosing (P.T.S.D.) have greatly improved. Even as recently as 2813, -.
the American Psychological Association has made some ma§grrchanges to diagnos-
ing symptoms of (P.T.S.D.) in its DSM-V manual (5ee online article attached as
Exhibit 7'to the application). Those changes were also adopted by the United
Btates Department of Veterans Affairs in 2813 (5ee online article also attached
as Exhibit 7). Pertinently, Applicant Barlton was examined, diagnosed and rou-
tinely treated by the (V.A.M.E.) in 2888, according to his mental history:
Applicant was evaluated and diagnosed with a depressive disorder as a criminal/

parolee, not as a war veteran. It is at least hopeful that recent changes in

the past decade would prevent the misdiagnosis of (P.T}S.D.) as bipolar depres-
sion today.

Nonetheless, the Court should also consider that Texas law now mandates
that combat-related (P.T.E.D.) be included in the (PSI) report. See TEXAS CUDE
of ERIMINAL PRUEEDURE Article h2.12, §9(1). Moreover, Texas Legislators have
given commissioner‘s courts the power to create veteran's courts in Texas, twen-
ty-two of which exist, to handle both felony and misdemeanor crimes committed
by combat veterans, like Applicant Earlton, who are suffering from (P.T.S.D.).

Hence, the instant application contains specific facts indicating that
relevant scientific evidencetof (P.T.S.D.), now available, was not available at
the time of trial because the evidence was not ascertainable through the exer-
Cise of reasonable diligence, and would be admissible under Texas Rules of Evie -~
dance 782 at a trial held on the date of application. And had evidence of (P.-
T.S.D.) been presented at trial on the preponderance of the evidence, if incom-
petent, Applicant Earlton would not have been convicted. Furthermore, for pur-
poses of section h(a)(1), evidence regarding competency could not have been pre-.
sented in Applicant's original 11.87 application in 2888, because the claim is
based upon relevant sceintific evidence of (P.T.S.D.) from 2813, that was not
ascertainable through the exercise of reasonable diligence by Applicant on or
before the date the original application was considered, And in making its find-
ing as to whether evidence of (P.T.S.D.) was not ascertainable, improved changes
in diagnosigg (P.T.S.D.) together with statutory provisions intended: to focus L
epecificellyon)service-connected disabilities, Earlton's competency issue today c
would mandate an inquiry. Thusly, the Eourt may address the merits of Applicant
Earlton's substantive claim of incompetence in fact.

AXZBpplicant Earlton's Burden of Proof
Under Sections h(a)(1) & (C)

whether the Eourt is barred from consideripg the merits of Applicant

Earlton‘s claim of ineffective assistance of counsel turns on whether the facts

giving rise to the claim presented could not have been presented in the initial

application, because they were "not ascentainable through the exercise of rea¥
sonable diligence on or before theudateeof the initial application." See §§

parte Lemke, 13 S.w. 3d 791, 793 (Tex. Crim. App. 2888).

Facts:

 

As mentioned briefly, on November 7, 2813, representative Eregory Treacy,
from Paralized Veterans of America, Inc., approached the Veterans Administration
with evidence for deciding Mr. 8arlton's claim of combat-related Post-Traumatic
StressHH$oIder(P.T.B.D.) QMr. Treacy's evidence is itemized on pageuZ of the
Veterans Administration's December 9, 2813 decision; attached to this applica-
tion as Exhibit 1). The Veterans Administration‘s rating decision ultimately
reflects results from the persopal examination of Mr. Earlton on November 7,
2813, conducted by psychiatrists et (VAMC) in Houston. The V.A. rated Mr. Earl-
ton's disability at:

1. 5ervice connection for mood disorder NDS (claimed post-traumatic stress

disorder) (P.T.S.D.) is granted with an evaluation of 58 percent
effective July 26, 2813.
2. 8ervice connection for irriteble bowel syndrome is granted with en

evaluation of 38 percent effective November 29, 2812.

Id.
Applicent's initial application, raising the issue of ineffective assis-
tence of trial counsel, was filed in the 248th District Eourt, Harris EOunty,
Texes, on December 13, 2886 (Tr. writ No. 868139-A, 868148-A, 873521£A).'After

ordering trial counsel, Robert Kent Loper, to file an affidavit (Affidavit
atteched£to the application es Exhibit 4), the case was resolved without a

heering. Considering the issue presented, end counsel's affidavit, the trial

 

court recommended that the claim be denied. And on March 19, 2888, the Eourt of
Criminal Appeals denied the application without written order (No. wR-33,813-83,

wR-33,513-04, wR-zz,s13-os)(white sardm.

"Reasonable Diligence"

"Reasonable Diligence" within the context of Article 11.87 5ection h TEX.
CEDE ERIM. PRDE., as explained in Ex parte Lemke, supra, 13 5.w. 3d at 798,
"suggests at least some kind of inquiry has been made into the matter at issue."
In the instant cese, Mr. Derlton‘s notice of appeal, motion for new trial and
attached affidvits, together with appellate counsel, Mark Rubel's attestation
in the appellate brief, and the issue presented in the initial 11.87 application
(each document alleging defense counsel failed to investigate defendant's mental
condition despite repeated requests for expert assistance), all suggest various
attempts of inquiry into the matter of obtaining expert psychological assistance.
In fact, Mr. Loper's own pretrial, £ke motion affirms that Mr. Derlton's mental
condition was an issue as early as July 17, 2881 (8ee 555 motion attached to
the application as Exhibit 5).

Thus, the facts in record support a determination, that after making inqui-
ries of Mr. Loper, Applicant Earlton exercised "reasonable diligence," in at-
tempting to have expert psychological assistance even before trial, and,repeat-
edly inquired to the lack thereof immediately thereafterwards. See £Emke, supra,
at 794 (holding applicant exercised "reasonable diligence" by making several
inquiries of his lawyer as to the existence of plea bargain offers by the State).
Eiven that the record proves Applicant made several inquiries, and thattJudge
Campbel granted defense's motion for such, with finding, Mr. Earlton's efforts
of diligence were shut down by Mr. Loper's representation, and he has satisfied

5ection h's requirement of "reasonable diligence,"

Eonsequently, the instant application "contains sufficient specific facts'

establishing" that Carlton's claim that Mr. Loper's failure to investigate his

 

mental condition, contact physicians, and obtain expert psychological assistance
for punishment, is one that could not have been presented in the initial appli-
cation because the factual basis for the claim, that_Carlton was suffering from
(P.T.S.D.), was "unavailable" (in that it was not ascertainable through the exer-
cise of reasonable diligence) on March 19, 2888, and the EDurt may therefore

address the merits of ground two in the instant application,

CERTIFICATE 8F SERVIEE

 

I, Eharles Claude Carlton, undersigned, certify that a true and correct
copy of Applicant‘s 8bjections and Response to The Trial Eourt's Ruling, Pursu-
ant to Texas Eode of Criminal Procedure Article 11.87 under rule 73.4(2), was

sent to:

8ourt of Eriminal Appeals
P.8. on 12388, Bapitol Station
Austin, TX 78711

Ehris Daniel

Harris Eounty District Clerk
1281 Franklin, P.8. Box 8651
Houston, TX 77218 - 8651

um AZ//wsv¥ /07’{ , 2015.

_ /"
Eharles B;XEariton

Applicant Pro 5a

