                                                                       ACCEPTED
                                                                   03-16-00368-CR
                                                                         13161216
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                            10/10/2016 10:29:38 PM
                                                                 JEFFREY D. KYLE
                                                                            CLERK
       TEXAS COURT OF APPEALS
      THIRD DISTRICT, AT AUSTIN
                                                  FILED IN
                                           3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
                                          10/10/2016 10:29:38 PM
            NO. 03-16-00368-CR               JEFFREY D. KYLE
                                                   Clerk



    Daniel Albert Talamantes, Appellant

                     v.

        The State of Texas, Appellee



   FROM COUNTY COURT AT LAW #7
         TRAVIS COUNTY, TEXAS
       CAUSE NO. C-1-CR-06-723321
HON. ELISABETH EARLE, JUDGE PRESIDING



REPLY BRIEF OF THE APPELLANT


                          Mr. Bristol C. Myers
                          Texas Bar No.: 24009734
                          1411 West Avenue, Suite 200
                          Austin, Texas 78701
                          512-478-2100
                          512-478-2107 fax
                          bristol.myers@gmail.com
                          Attorney for the Appellant 
                          TABLE OF CONTENTS




TABLE OF CONTENTS.....................................................................2

INDEX OF AUTHORITIES……..…………………….………..….3

ARGUMENT…………………………………………………..…….4

CONCLUSION…………………………………………………….18

CERTIFICATE OF SERVICE…………………..………………….19

CERTIFICATE OF COMPLIANCE…………………..…….…….19 




                                                                                     !2
                INDEX OF AUTHORITIES

United States Supreme Court

United States v. Cronic,
466 U.S. 648 (1984)…………………………………………………11

Texas Court of Criminal Appeals

Ex Parte Perez,
398 S.W.3d 206 (Tex.Crim.App. 2013)…………………………..…4

Lomax v. State,
233 S.W.3d 302 (Tex. Crim. App. 2007)……………………………8

Texas Courts of Appeals

Ex Parte Bowman,
483 S.W.3d 726 (Tex.App.-Houston [1st Dist.] 2016)…………….6

Talamantes v. State,
No. 03-07-00668-CR (Tex. App.—Austin, 2009)……………….…8

Other Authorities

“Performance Guidelines for Non-Capital Criminal Defense
Representation,” Standing Committee on Legal Services to the
Poor in Criminal Matters, adopted by the State Bar Board of
Directors, January 28, 2011…………….…….……………13-14, 16




                                                           !3
                                   ARGUMENT

LACHES—The State still has an actual burden to prove
       prejudice stemming from unreasonable delay, and
       its reliance on the mere passage of time is
       insufficient to meet that burden.



      A. The State still has a burden of proving prejudice.

      There is no rebuttable presumption of prejudice to the State.1

Perez broadened the scope of facts for a court to assess

prejudice, but it did not absolve the State of having to prove

prejudice to benefit from the laches defense. 2 The burden of

proving prejudice remains on the State. Proof of mere passage

of time is insufficient to raise laches as a defense.3

      B. The prejudice claimed by the State is imaginary.

      The State’s perception of prejudice hangs on the difficulty of

re-trying Mr. Talamantes if this conviction were overturned.4


1   Ex Parte Perez, 398 S.W.3d 206, 210 (Tex.Crim.App. 2013)
2Id. at 215 “We reaffirm Carrio’s holding…alter[ing it]…only to the extent that we now
apply Texas common law, rather than the federal standard to define the parameters of the
doctrine of laches in Texas habeas corpus cases.”
3   Id. at 219
4   State’s Brief, pp. 15-19,
                                                                                      !4
      The State stipulated that the arresting officer was still with

the Austin Police department,5 and the obvious presumption is

that he would be available to testify at a re-trial. However,

bearing the burden of proof of prejudice, the State failed to call

the officer at the habeas hearing to ask whether or not his

testimony at a re-trial would be adversely affected by the delay.

Perhaps the State was fearful that the ordinary course of

business in DWI trials would come to light on the record.

      The State is in no worse position for a re-trial in this case

than it is on the trial of any other DWI case. The State’s

assertions that the officer would be “skewered” or “berated” 6

for relying on his report or the video ignores the reality of how

police and prosecutors have to prepare for DWI trials.

      There were over 49,000 crimes reported in the City of Austin

in 2007, not including drug offenses, and DWIs.7

5   RR2 p. 3
6   State’s Brief pp. 8,17
7Austin Police Department Annual Crime and Traffic Report: 2008 Final Report.
http://www.austintexas.gov/sites/default/files/files/Police/
2008_crime_and_traffic_report_(reissued)_042210.pdf
                                                                                !5
      There have consistently been over 3000 DWI arrests annually

in Austin since the mid-1980’s, and in recent years that number

has exceeded 6,000 DWI arrests annually. 8 There are currently

2300 employees of the Austin Police Department,9 though not

all of those are police officers, not all police officers work patrol,

nor are all patrol officers working at night when more calls

come in. Factoring in that a police officer’s job also entails

writing traffic tickets, responding to noise complaints, burglar

alarms, and other calls for service that do not result in a

reported crime, there is no way (barring a significantly unique

experience with a subject) that an officer is going to remember

the fine details of a DWI arrest made the month before.

      This is why police reports and patrol car videos are made,

and the reality is that officers have to rely heavily on those

reports and videos every time they testify anyway.10

8 “Evaluation of the Austin Police Department DWI Enforcement Unit,” p. 12, fig. 3-1, U.S.
Dept. of Transp. National Traffic Safety Administration. (August 2003); http://kxan.com/
investigative-story/thousands-of-dwi-arrests-in-austin-many-not-prosecuted/
9   http://www.austintexas.gov/department/police
10   Ex Parte Bowman, 483 S.W.3d 726, 737-738 (Tex.App.—Houston [1st Dist.] 2016)
                                                                                         !6
       The parallels between this case and the Bowman case have

been briefed by both sides. The State suggests that it is more

prejudiced here than in Bowman because Mr. Talamantes had no

trial and, therefore, no trial transcript to further help refresh the

memory of his arresting officer. To the contrary, the State is at a

greater advantage without a transcript because defense counsel

has zero ability to impeach the officer’s testimony by prior

inconsistent statement—a trial strategy far more effective in

DWI cases than “skewering and berating” an officer for simply

continuing to do his job between the time of arrest and the date

of trial.

  C. The State’s argument of unreasonable delay in filing the
application for habeas corpus relief misstates and
misinterprets the facts.

       As an initial matter, the State falsely claims that Mr.

Talamantes attacked the validity of this conviction on direct

appeal in his murder case.11



11   State’s Brief pp. 1, 4, 7
                                                                      !7
     The State then uses its own falsehood to suggest that Mr.

Talamantes had been aware of the potential to attack this

conviction for a long time. The truth is, on the direct appeal of

the murder, Mr. Talamantes continued to press that the DWIs

should not have been used as felony-murder predicates, despite

Court of Criminal Appeals precedent.12

     The State claims overturning the conviction in this case

prejudices the outcome of the felony-murder prosecution. This

court, like the trial court, should confine itself to addressing the

claims raised in this case. Taking a “totality of the

circumstances” approach to determining prejudice in the laches

context is not a license to consider the irrelevant or the obscure.

Moreover, any prejudice to the State to the felony-murder

judgment is speculative.13




12Talamantes v. State, No. 03-07-00668-CR (Tex. App.—Austin, 2009); Lomax v. State,
233 S.W.3d 302 (Tex. Crim. App. 2007)
13 Every morsel of prejudice claimed by the State in this case is based on speculation,
given the State’s failure to procure the testimony of Mr. Talamantes’ arresting officers to
at least attempt to prove some actual prejudice.
                                                                                              !8
  A subsequent 11.07 writ would have to be granted, an

uncertainty in itself, followed by a recommendation to grant

relief, followed further by a separate review of any

recommended relief.

  On the other hand, if a “totality of the circumstances”

approach is taken toward prejudice, then it should also apply to

an assessment of the reasonableness of the delay in filing for

habeas corpus relief.

  Mr. Talamantes is not a man who has slept on his rights. He

has been in constant litigation since he was found guilty of

murder, of which, this conviction was an essential element. It

took over 4 years—from filing date to Court of Criminal

Appeals ruling—to finally resolve the 11.07 writ in Mr.

Talamantes’ murder case.




                                                                 !9
      The State misconstrues the tenor of Mr. Talamantes’

testimony: it is not that Mr. Talamantes had no idea what

habeas corpus is14; it is that he was unaware that this particular

claim for relief existed.15 He never knew that there was a DWI

video in this case, did not know to ask before he entered his

plea in this case, and his appointed lawyer never suggested it.

He was never told by his lawyer in the felony-murder case, nor

did any of his prior post-conviction lawyers suggest, that he

should re-examine the validity of his DWI convictions.

      It is subjectively and objectively reasonable to expect that

clients will rely on their lawyers’ advice. Lawyers are hired or

appointed because of the expectation that lawyers are more

knowledgeable about the law, and therefore are beneficial to

their clients. It is also subjectively and objectively reasonable for

a person facing a 50-year sentence for murder to focus on

challenging that conviction.

14   State’s Brief p. 13-14
15   RR2 pp. 79-80, 84-85
                                                                     !10
DENIAL OF COUNSEL—The issue was properly preserved,
                and the State has no good answer for it.



      A. The issue is raised by the application for habeas corpus.

                  “In the absence of a reliable alcohol
                concentration, DWI is essentially a crime
                based on opinion. Defense counsels’ total
                reliance on the opinions of police in
                Talamantes’ cases deprived him of any
                meaningful adversarial testing of the
                prosecution’s cases against him. Therefore, in
                both of his DWI cases, Talamantes was
                denied his rights to counsel…”16 ,17



      Additionally, both sides presented evidence, not just about

appointed counsel’s individual performance, but about the

overall jail call process, because in this case proof of

constructive denial and ineffective assistance was entangled in

the same set of facts.




16   CR p. 21
17Deprivation of “meaningful adversarial testing” is taken from United States v. Cronic,
466 U.S. 648, 659 (1984) which the State cites in its own brief (p. 20) as the test for
determining a constructive denial of counsel.
                                                                                           !11
  B. The State is trying to cover up the Travis County “meet
& plead” jail call system.

      The State’s Brief provided no answers to the systemic failing

of the Travis County jail call system that results in constructive

denial of counsel. When asked what he did for Mr. Talamantes

that Mr. Talamantes could not have done for himself, appointed

counsel barely had an answer, eventually coughing up that he

rendered advice on “what the risks of trial might entail.”18 This

particular lawyer was ill-suited for that task (see below), but

even he admitted he could not effectively provide that advice in

a DWI without the video.19

      The State’s brief had no counter for the fact that Mr.

Talamantes and similarly situated defendants are forced to

decide to go to trial: 1) without having seen the video first or, 2)

after suffering additional pretrial incarceration in order to

obtain the video and make a fully-informed decision.


18   RR2 p. 71
19   RR2 p. 72
                                                                  !12
      Instead of addressing these systemic problems in its brief,

the State attempts to shift appointed counsel’s duty to conduct

discovery onto Mr. Talamantes, suggesting that it was up to Mr.

Talamantes to divine the existence of the patrol car video. The

State had ample opportunity to ask Mr. Talamantes if he

actually knew there was a patrol car video on the date he

entered his plea, but chose not to.20 It does not matter…

      It was counsel’s duty to independently explore all avenues

leading to relevant facts, regardless of the client’s wish to admit

guilt, and determine whether the charges are factually and

legally correct.21 Under no circumstances should counsel have

recommended acceptance of a plea agreement unless

appropriate investigation of the case had been completed,




20   RR2 pp. 76-115
21Guideline 4.1A “Performance Guidelines for Non-Capital Criminal Defense
Representation,” Standing Committee on Legal Services to the Poor in Criminal Matters,
adopted by the State Bar Board of Directors, January 28, 2011.
                                                                                     !13
including evidence likely to be introduced at trial.22, 23

      The State suggests on page 23 of its brief that appointed

counsel spent two whole days working on Mr. Talamantes’

case. The State intends to create a false impression of diligence

on the part of appointed counsel. Appointed counsel in this

case, appointed counsel in Mr. Talamates’ companion case, and

Mr. Talamantes himself all describe their jail call experience as

being one in which the initial meeting and all the work happen

in a single court setting.24

      The State also points to appointed counsel’s 40 years of

experience25 to create a false impression of competence on the

part of appointed counsel in this case. In truth, nobody would

ever hire the man, and he has essentially no DWI trial


22   Id. at Guideline 6.1A.
23One of the “foremost” purposes of the Guidelines is promotion of professionalism in the
representation of indigent defendants. Peruse the Guidelines. Absorb the method and
process they contemplate. The Guidelines are what “Counsel” is supposed to be in the
Constitutional sense of the word. Then contrast those standards with what Mr.
Talamantes and his lawyers testified about the Travis County jail call operation: meet and
plead in sixty minutes or less.
24   RR2 pp. 14, 47-49, 77-79, 83-85
25   State’s Brief p. 6
                                                                                       !14
experience (that he can remember).26 Everybody has to start

somewhere, but forty years with virtually no retained clients is

another way of saying there is no market value for the services

he offers. Forty-years in criminal law with no trials is as non-

adversarial as a potted plant.




      INEFFECTIVE ASSISTANCE OF COUNSEL

      A. The State issues Mr. Talamantes a Bar Card.

      As noted above, in order to excuse the deficient performance

of appointed counsel who failed to obtain Mr. Talamantes’

patrol car video, the State argues that it was up to Mr.

Talamantes to know the video existed and to urge his lawyer to

get it. It was counsel’s job to conduct full discovery before

demanding that Mr. Talamantes decide between a plea or a

trial, and it is the justice system’s job to make sure appointed

counsel can do that without penalizing the defendants who



26   RR2 p. 40
                                                                   !15
appear within it.27

      B. A credibility finding is only as good as it is specific.

      The State argues that Mr. Talamantes cannot show prejudice

because the trial court found him not credible. 28 Of course, the

trial court found his lawyers’ testimony credible. The trial court

did not make credibility findings specific to the issues in this

case. A general finding of “not credible” does not mean that the

truth is the opposite of everything that witness says.

      Mr. Talamantes gave his name for the record. Was this not

credible? What about his education? His admissions regarding

his criminal history? Mr. Talamantes’ description of his jail call

experience, particularly the courtroom setting and the relatively

quick disposition of cases is actually corroborated by the

testimony of his lawyers.

      Despite the trial court’s generalized finding on his

27See again the Performance Guidelines, Note 21, supra. As part of the justice system
the State Bar set standards for the performance of counsel. As part of the justice system,
the Third Court of Appeals should remove institutional impediments to those standards
being met.
28   State’s Brief p. 27
                                                                                        !16
credibility, Mr. Talamantes’ specific credibility in testifying that

he would have proceeded to trial in this case is corroborated by

the videos of both arrests29, particularly when compared to one

another, coupled with his admission that he would NOT have

gone to trial in his first DWI.

  C. The State assails its own Laches argument by
overstating the strength of its DWI case.

      The State concedes that Mr. Talamantes does not need to

prove he would have been acquitted or even merely had a

better outcome had he gone to trial.30 Even so, Mr. Talamantes

had a good chance of either a better offer, better outcome, or an

acquittal in this case, given how he looks and sounds on his

video. A decision to reject the 90-day offer would have been

rational.

      All of the evidence the State now lists to support a

conclusion that it would have been irrational to reject a 90-day




30   State’s Brief p. 28
                                                                   !17
plea offer and face a jury in Travis County (of all counties),

remains readily available for presentation to a jury now,

unimpaired by the passage of time.




                         CONCLUSION

   Appellant asks the reviewing court to reverse the habeas

court’s ruling on the relief requested by the Appellant, set aside

Appellant’s no contest plea and resulting conviction, and

remand the case to the trial court for meaningful adversarial

testing of his DWI charge.

                                    Respectfully submitted,

                                    /s/ Bristol C. Myers
                                    Bristol C. Myers
                                    Texas Bar No.: 24009734
                                    1411 West Avenue, Suite 200
                                    Austin, Texas 78701
                                    512-478-2100
                                    512-478-2107 fax
                                    bristol.myers@gmail.com
                                    Attorney for the Appellant




                                                                 !18
                        Certificate of Service
   My signature certifies that on October 10, 2016, a true and
correct copy of this brief was served on all parties available
through the e-file/e-service system.
                                     /s/ Bristol C. Myers
                                     Bristol C. Myers



                       Certificate of Compliance
    My signature certifies that, in accordance with Texas Rule of
Appellate Procedure 9.4(i)(3), that the word count of this brief
in its entirety as calculated by the word processing system on
which this brief was written is 2,866.



                                    /s/ Bristol C. Myers
                                    Bristol C. Myers




                                                                 !19
