                                                                                                      ACCEPTED
                                                                                                 04-12-00739-CR
                                                                                      FOURTH COURT OF APPEALS
                                                                                           SAN ANTONIO, TEXAS
                                                                                            1/26/2015 8:21:25 PM
                                                                                                   KEITH HOTTLE
                                                                                                          CLERK


                       APPEAL NO. 04-12-00739-CR
                                                                               FILED IN
                                                                        4th COURT OF APPEALS
                           In The Fourth Court Of Appeals                SAN ANTONIO, TEXAS
                                 San Antonio, Texas                     1/26/2015 8:21:25 PM
                                                                          KEITH E. HOTTLE
                                                                                Clerk

                          JOSE GUADALUPE MARTINEZ,

                                                      Defendant-Appellant,

                                             vs.

                                THE STATE OF TEXAS,

                                                      Plaintiff-Appellee.


                    MOTION FOR LEAVE TO FILE
                 OVERSIZED PETITION FOR REHEARING


TO THE HONORABLE JUDGES OF THE COURT OF APPEALS FOR THE FOURTH
SUPREME JUDICIAL DISTRICT OF TEXAS, SAN ANTONIO, TEXAS:

      NOW COME NANCY B. BAROHN and MEGAN V. COOK, and pursuant to T EX.

R. A PP. P. 9.4, respectfully move this Honorable Court for leave to file an oversized Petition

For Rehearing on behalf of Mr. Jose Guadalupe Martinez. In support of this request, we

show this Honorable Court as follows.

                                              I.

                                  Statement Of The Case

      Jose Guadalupe Martinez was charged in a Superseding Indictment with two counts

of sexual assault of a child, in violation of Texas Penal Code § 22.01. From October 22
through 26, 2012, Mr. Martinez tried his case to a jury in the 38th Judicial District. Mr.

Martinez was found guilty of each count.            The jury returned a punishment verdict

recommending a five-year term of confinement on Count One, and a ten-year term of

confinement on Count Two. These sentences were cumulated for a total term of 15 years’

confinement.

      On October 31, 2012, Mr. Martinez filed a timely Notice of Appeal. On October 29,

2014, this Court affirmed Mr. Martinez’s convictions in an unpublished Memorandum

Opinion.

                                              II.

                    Request For Leave To File A Oversized Petition
                      For Rehearing On Behalf Of Mr. Martinez

      Under T EX. R. A PP. P. 9.4, a Petition For Rehearing should not exceed 4,500, though

this Court is authorized under the Rule to permit the filing of a petition outside the word

count limit. Mr. Martinez’s Petition For Rehearing contains 7, 472 words. Though the extra

length may seem excessive, we seek permission to file Mr. Martinez’s petition in the present

format for the reasons which follow.

                                             III.

                  Reasons For The Oversized Petition For Rehearing

      In affirming Mr. Martinez’s convictions, this Court declined to reach the merits of his

constitutional claims based on briefing deficiencies, viz., that Mr. Martinez failed to explain

how “each ruling made by the trial court was ‘clearly erroneous.’” Slip op. at 10-1, citing

                                              2
Wiley v. State, 74 S.W.3d 399, 406 (Tex.Crim.App. 2002) (emphasis added), and Allen v

State, No. 14-12-01086-CR, 2014 WL 358372 at *8 (Tex.App. - Houston [14th Dist.], July

22, 2014) (mem. op. not designated for publication). As a consequence of these defects, this

Court explained, Mr. Martinez failed to present his arguments in a way that would allow it

to consider his constitutional claims. Slip op. at 11 (emphasis added). We seek to remedy

these defects of form and substance in the Petition For Rehearing.

      To this end, we ask this Court to consider that Mr. Martinez’s constitutional challenges

on appeal were based on a lengthy and complicated trial record, in which the proffer hearings

were lengthy, and the objections to the court’s numerous rulings excluding evidence were

numerous and based on multiple grounds. The trial court’s rulings, too, were numerous, and

often included more than one basis for the exclusion of evidence. Counsel found it difficult

to structure Mr. Martinez’s brief around the record and–since Mr. Martinez’s constitutional

claims were based on the trial court’s various rulings excluding all of the evidence Mr.

Martinez sought to offer in aid of his defense–counsel presented the constitutional arguments

in a global manner. In so doing, counsel was concerned that the trial court’s rulings on the

defense’s numerous objections were frequently confusing, and often repetitive, and would

make the brief unwieldy, repetitive, and unduly long.1




       1
       As it was, Mr. Martinez’s brief was in excess of the word limitation and required
permission of the court to file.

                                              3
      Counsel has never before had an appellate argument rejected for defects in her briefing.

On the other hand, Mr. Martinez’s record presented special challenges.

      Under T EX. R. A PP. P. 38.9, briefs are meant to acquaint the court with the issues, and

to present argument that will enable the court to decide the case. Where there are formal

defects in the brief, and the court concludes that the rule has been flagrantly violated, it may

order the brief to be amended, supplemented, or redrawn. T EX. R. A PP. P. 38.9(a). If another

brief that does not comply with this rule is filed, the court may strike the brief, prohibit the

party from filing another, and proceed as if the party had failed to file a brief. Id. If the

court determines, either before or after submission, that the case has not been properly

presented in the briefs, or that the law and authorities have not been properly cited, the court

may postpone submission, require additional briefing, and make any other necessary for a

satisfactory submission of the case.           T EX. R. A PP. P. 38.9(b).          Under either

paragraph–whether the defects are of form or substance–Rule 38.9 provides the vehicle

whereby an appellate court can afford a party the opportunity to cure deficiencies.

      Counsel was unaware that her briefing of Mr. Martinez’s constitutional issues was

defective in either form or substance–up through the oral argument. Counsel would certainly

have availed herself of the opportunity to file a redrafted brief under T EX. R. A PP. P. 38.9 had

these defects been brought to her attention prior to submission. Counsel seeks to cure the

briefing defects in Mr. Martinez’s Petition For Rehearing, and has addressed the court’s

individual rulings, with authorities as to why the rulings were clearly erroneous.



                                                4
      Mr. Martinez’s Petition For Rehearing exceeds the word-count limit for this reason.

Had counsel been afforded the opportunity to redraft Mr. Martinez’s brief, the word count

would not be as problematic. Counsel respectfully requests that this Court take these

circumstances into account when considering this motion. Counsel respectfully suggests

that, when this Court reviews the Petition For Rehearing, it will get a sense of the level of

difficulty involved.

      Beyond this Court’s authority to permit the filing of an oversized Petition For

Rehearing under T EX. R. A PP. P. 9.4, this Court has authority under T EX. R. A PP. P. 2 to

suspend the operation of a rule to expedite a decision or for good cause shown. We suggest

that a decision in Mr. Martinez’s case will be expedited if he is permitted to file his Petition

For Rehearing in its present format.

                                          PRAYER

      FOR ALL OF THESE REASONS, COUNSEL respectfully pray that this Honorable

Court will grant their request to file a oversized Petition For Rehearing.

                                               Respectfully submitted,

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




                                               5
                                       MEGAN V. COOK
                                       Cook and Cook Law Firm
                                       115 East Travis, Suite 1620
                                       San Antonio, Texas 78205
                                       (210) 271-2800
                                       Texas Bar Number: 24065072

                                       Attorneys for Mr. Jose Guadalupe Martinez

                                       By:    S:s NANCY B. BAROHN
                                             NANCY B. BAROHN


                        CERTIFICATE OF SERVICE

I certify that I served a true and correct copy of the foregoing motion by e-mail on:

Mr. Danny Kindred
District Attorney for the
  38th Judicial District
3102 Avenue G
Hondo, Texas 78861

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

        – on this the       26th    day of January, 2014.




                                        S:s  N ANCY B. B AROHN
                                       NANCY B. BAROHN




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