' .

                                             IN THE .

                                COURT OF CRIMINAL APPEALS
                                                                        FILED IN
                                                                COURT OF CRIMINAL APPEALS
                                            OF TEXAS
                                                                       MAY 05 2015

                                                                     Abel Acosta, Clerk


                                     No. WR-80,458-01              RECEIVED IN
                                                             COURT OF CRIMINAL APPEALS

                                                                    MAY 0 12015

                                                                Abe~ Acosta, Clerk
                        EX PARTE WALTER AARON HAMILTON, Applicant




                                MOTION FOR RECONSIDERATION




      TO: THE HONORABLE JUSTICES OF THE
          TEXAS COURT OF CRIMINAL APPEALS



          COMES NOW, Walter Aaron Hamilton, Movant/Petitioner, ('Hamilton'),
      proceeding in propria persona, and pursuant to the provisions and authority
      of Texas Rule Of Appellate Procedure 79.2(d), in conlunction with the due
      proces and due course of law protections and guarantees of the United States
      and Texas Constitutions, and respectfully request that this Honorable Court
      on its own Reconsider it's Opinion rendered on March 18, 2015, whereas, this
      Court GRANTED relief and set aside Count Two but subsequently denied all other
      relief. See Ex Parte Lemke, 13 s.W.3d 791 (Tex.Crim.App. 2000): also Lookinobill
      v. Cockrell, 293 F.3d 256 (5th Cir. 2002). Ih support, Hamilton respectfully
      shows this Honorable Court as follows.
     This case does NOT require the breakinq of new ground. whereas, the State,
The Honorable Fourth Court of Appeals, The Honorable Texas Court of Criminal
Appeals, and the United States. Supreme Court ALL AGREE on this issue.

    · 1.) Reconsideration should be GRANTED in this case because this Honorable
Court has held that in all cases where issues under consideration.have been
previously addressed in an Opinion, that Opinion should be followed unless
there are urgent and compelling reasons to overrule. that precedent, See
Me Glothlin v. State, 896 S.W.2d 183 (Tex.Crim.App. 1995).


     2.) This Honorable Court has also made it clear that Aopellate            Jud~es

should achieve uniformity in the interpretation of similar laws. See Eaves v.
State, 353 S.W.2d 231 (Tex.Crim.App. 1961).




                               HISTORY OF THE CASE


     On or about February 29, 2008, Applicant was ,found guilty by a jury on
Four Counts of Aggravated Sexual Assault, Aggravated Robbery, and Aqqravated
Kidnapping. On March 3, 2008, the jury sentenced Applicant to sixtv (60) years
on Count One,. Thirty (30) years on Count Two. 'T'hree .,   ;mil   F'onr .. rren ( 10) years
on Count Five, anrl Sixty (60) years on Count Six. Applicant's Petition For
Discretionary Review was refused on september 22, 2010. Applicant's conviction
was affirmed on appeal.and a Mandate was issued on November 19, 2010. On
October 8, 2010, the Court of Criminal Appeals granted an extension of time to
file for rehearing. Rehearing Motion was.filed on Ovtober 18, 2010 and was
subsequently rejected for non-compliance of rule 79.2(c) on October 21, 2010.
On december 16, 2010, Applicant filed a Writ of Certiorari in the United States
Supreme Court. Certiorari.was denied on May 23, 2011 (Cause No. 10-9586. On
February 6, 2012, Applicant filed a Chapter 64 Motion. for Post-Conviction
forensic DNA Testing. The Trial Court appointed Counsel on february 13, 2012.
On February 19,2013, an Order was signed denying Applicant's Motion. An
Application.for Writ of Habeas Corpus (11.07) wq.s filed on March 1'3, 2013.
This Honorable Court of.Criminal Appeals received Applicant's Application·on
October 29, 2013. On March 18, 2015 thisHonorable Court handed down its Opinion.
The Court found that Applicant received multiple ·punishments in violation of the
Double Jeopardy Clause and GRANTED relief, thereby,. setting aside Count II in
Cause No. 2006-CR-3927, and denying all other relief. Applicant filed for an

                                        (2)
Extension of Time to file Motion for Rehearing on March 28, 2015, which this
Honorable Court GRANTED on April 9, 2015. The Motion for Rehearing is due on
May 1, 2015.




                                     ,ARGUMENT



A. ) OOUBLE JEOPARDY

     This Honorable Court, in relying on the Trial Court's Recommendation, held
that Hamilton received multiple punishments· in violation of the Double Jeopardy
Clause. In GRANTING relief, this Honorable Court set aside Count II. Hamilton
contends that by setting aside Count II ONLY that he received only partial
relief of what should have been Granted. The Double Jeopardy violation in
Hamilton's case runs much deeper than the Trial Court's recommendation. The
Court is correct in setting aside Countii, however, based on this Honorable
Court's precedent, the relief granted, as far as the double jeopardy violation
is concerned, should have been the setting aside of Counts II - VI.

     It is clear on the Face of the Charging Instrument that Counts II - VI
are in violation of the Double Jeopardy Clause. The decision that this Court
reached in it's Opinion with Hamilton is in Direct Conflict with this Honorable
Court's Precedent.

     The Texas Constitution in Art. 1, § 14 plainly states, "No person for the
same offense shall twice be put in jeopardy of Life or Liberty." This Honorable
Court has held that, "IN TEXAS, the     'AL~ABLE   UNIT OF PROSECUTION' for an
"ASSAULTIVE" offense is "EACH VICTIM". See Ex Parte Hawkins, 6 S.W.3d 554,560
(Tex.Crim.App.l999); Ex Parte Rathmel, 717     s.w. 2d 33,36 (Tex.Crim.App.l986).
This is dir.ectly on point with the claims in Hamilton's case where there was
ONE VICTIM during ONE continuous "ASSAULTIVE" offense.

     As stated previously, this issue with Hamilton does NOT require breaking
new ground. Furthermore, the State, the Honorable Fourth Court of Appeals, and
the Honorable   Te~as   Court Of Criminal Appeals, ALL AGREE on this issue, however,
refuse to apply the same_precedent to Hamilton's case-


                                         (3)
1.) The STATE argues1 the 'Allowable Unit of Prosecution' should be "EACH VICTIM".
    See Miles v. State, 259 S.W.3d at 248.

2.) The Honorable Fourth Court Of Appeals- AGREES- See Haight v. State. 103 s.w.
    3d 498,503 (Tex.App-SAN ANTONIO 2003).

1.) The Honorable Texas Court Of Criminal      Appeals~   AGREES. See Ex Parte Cavazos.
    203 S.W.3d 333 1 337   (Tex.Crim.APP-2006)~   Ex Parte Hawkins, 6 S.W.3d 554,560
    (Tex.Crim-App- 1999) · r=lnd Ex Parte Rathmel, 717 S.'W.2d '33,36 (Tex.Crim.App.
    1986).
     This Honorable Court hascontinued with this reasoning on 'ASSAULTIVE'
type offenses. "Robbery,,is .. an· -'ASSAULTIVE' offense. See .YGung v. State, 283 s.w.
3d 854, 862 (Tex.Crim.App.2009). "The 'Unit ofProsecution' of the offense of
Robbery is THE VICTIM." See Byrd v. State, 336 S.W.3d       242~251   n.43 (Tex.Crim.
App. 2011). "Therefore, the gravaman of Robbery [Assaultive Offense] offenses,
including Aggravated Robbery, is the defendant's Assaultive.conduct against 'EACH
VICTIM'. Id at 251. ·

     This is where the distinction must be made and the Trial Court's Recommendation
is in err. This IS NOT. a case where the 'Unit Gf Prosecution' is the NATURE of
the prohibited conduct, such as an Indecency with a Child case where the gravaman
of that statute (Tex.Penal Code Ann. § 21.11) is the nature of the prohibited.
conduct .••. "The commission of each prGhibited act determines now many convictions
may be had for a particular course of conduct." See Austin Loving v. State,
401 S.W.3d 642; 2013 Tex.Crim.App. LEXIS 950. However, This does not apply in
an 'ASSAULTIVE' offense as this Honorable COurt continues to hold.
      Furthermore, the Supreme Court of The United States also agrees. "To
determine whether· offenses are the same for Double Jeopardy purposes, ·an appellate
Court MUST construe the statutory provisions .in question to discern the 'Allowable
Unit of Prosecution' ••• ". Quoting Sanabria v. United States, 437 u.s. 54, 69-70,
98 s.ct. 2170, 2181-82, 57 L.Ed.2d 43,57 (1978). The High Court went on to say,
"A single offense should normally be charged in ONE COUNT rather than severaL
even IF DIFFERENT MEANS OF COMMITTING THE OFFENSE ARE ALLEGED. Id at 69-70,
emphasis added. So, the question remains, Why is this precedent not being foilowed
in the instant case with Hamilton,. who was charged, convicted and sentenced on
Four (4) Counts of Aggravated Sexual Assault, One (l) Count of Aggravated Robbery,
and One (l) Count of Aggravated Kidnappinq, where the "UNIT OF PROSECUTION" was
One Victim? Were this not an ASSAULTIVE offense this wouldn't be an issue.
Furthermore, Agqravated Robbery and Aggravated Kidnappinq are both ASSAULTIVE

                                        ( 4)
offenses. Again, there was only ONE VICTIM and "IN TEXAS", the 'Unit of
?rosecution in an ASSAULTIVE offense is EACH VICTIM and in the case with
Hamilton, there was only ONE VICTIM.

         Aggravated Kidnapping is also by statute an "ASSAULTIVE" offense. In
the case with Hamilton; ALL Six Counts stem from the same Criminal Episode, i.e.,
an unbroken sequence. The Court in Roberts stated, "Though to convict him of
assault the State need not have proved an abduction, in proving the abduction
for purposes of kidnapping, the State satisfied the elements for Aggravated
"ASSAULT". See Roberts v. State, 795 S.W.2d 842,882 (Tex.App.-Beaumont 1990).
This is on point with the instant case.

         Hamilton has clearly shown in the case against him that Counts 2-6, in
an unbroken sequence, are ALL "ASSAULTIVE" offenses and that the 'Unit of
Prosecution' for such offenses is EACH VICTIM, wherein, the case with Hamilton
there was ONE VICTIM.

         For the foregoing reasons, Rehearing should be granted as the Trial Court's
Recommendations directly conflict with this Honorable Courts precedent on this
issue.




B. ) ACTUAL INNOCENtE.

         This Honorable Court denied relief on this claim without any reasons in
 its.Opinion, which only addressed the previous Double Jeopardy claim. Hamilton
maintains his    innocen~e   in this crime! The Trial Court's double-talk in its
Findings of Fact and Conclusion of Law is fascinatinq. They should read it.

       First, the Trial Court found both, Trial and Appellate Counsel affidavits
                        .    .~ q                              .
 to be "Truthful and Credible: (Paragraph 5, pg.l4- Courts Conclusion of. Law).
However, BOTH attorney's have lost the Appellant's .record. This in itself, is
 "INCREDIBLE". It is rare that an Attorney loses his client's file. So, what a
·rarity this is that both of Hamilton's Attorney's have lost his record.
Appellate CounseL edward Shaughnessy III, in his affidavit {pq.21- attached to
Court's Conc;;lusion of Law) plainly states that he is ••• "unable to locate the
 file .•• " "consequently the Affiant's ability to respond to the Applicant's
 (Hamilton) complaint is limited." Four years later I would imagine so. Trial


                                        (5)
Counsell Jeffrey J. Scott at a hearing held in the 226th District Court before
the Honorable Sid L. Harle has admitted that he lost Hamilton's record in a
recent flood at his storage facility. On what evidence did the Trial Court base
its decision to find the Attorney's affidavits to be "Truthful and Credible"?
The   ob~ious   answer is HEARSAY. Noteworthy here is the fact that trial counsel
Jeffrey J. Scott was SANCTIONED,by the State Bar for his actions prior to the
Trial in this case. This was over a grievance that Hamilton had filed on Counsel
which obviously created a Conflict of Interest and the reason that Counsel
claims to have lost Hamilton's file.

        Nevertheless/ the Court after finding the Attorney's affidavits to be
truthful and credible found BOTH attorneys to be DEFICIENT and INEFFECTIVE in
its findino of Fact and Conclusion of Law. (See pg. 14 - Courts Conclusion of
Law).

      In this case Hamilton brouqht up claims under both1 a Herrera-type claim
and a Schlup-type. The Trial court correctly notes (#10, pq. 16) that a Schlup-
type claim is a procedural claim in which the Applicant's claim of innocence
" 'does not by itself provide a basis for relief', but is INTERTWINED with
OONSTITUTIONAL    ERROR   that renders .a persons conviction Constitutionally invalid."
SCHLUP, 513 U.S. at 315, 115 S.Ct. 851.

        The Trial Court in its findinqs found that Hamilton failed to establish
a "Constitutional error" and therefore.-recornrnended that the claim be denied.
Hence, the double-talk. Did not the Court "iust find that BOTH attorneys were
INEFECTIVE. thereby, violating Hamilton's ·constiturional Sixth Amendment Rioht
to Effective Counsel? This IS Constitutional Error, or does that only apply          when
in favor of the State?

        The Court goes on to say( #12) •. ·. Applicant's 1.\ctual Innocence. Claim must
be treated as a Herrera-type claim ••. A Herculean task. Of course a Herrera-type
claim is a Herculean task, hence1 why the Court disputes the Schlup claim that
Hamilton has proved in the first .place. Actually. the Trial Court in it's
recommendation verified Hamilton's claim with it's own argument. All this Honorable
Court has to do is look at Hamilton's actual Innocence Claim alonq with the
evidence provided (attached to Hamilton's Memorandum accompanying his 11.07) and
it will see1 as the Trial Court states, no REASONABLE juror would have [could
have] convicted Hamilton in light of the new evidence. Yes, the "Trial Court"
finds thqt Hamilton's claim of Actual Innocence are not "newly discovered" (see
pg. l7t #13). HOWEVER, as Hamilton states in his claim of Actual Innocence (Pg.
                                          (6)
12 -Memorandum attached to 11.07 Writ) "The Supreme Court in Schluo CLARIFIED
that "the emphasis on 'Actual Innocence' allows the reviewing tribunal ALSO to
consider the probative force of RELEVANT EVIDENCE that was either EXCLUDED or
UNAVAILABLE at trial." The Court went on to say, "Indeed. with respect to this
aspect of the CARRIER standard, (Murray v. Carrier, 106 s.ct. 2635, 477 u.s.
478) We believe that Judge Friendly's description of the inquiry is appropriate:
The Habeas Court MUST make its determination concernin9 the Petitioner's Tnnocence
in liqht of all the evidence, fNot -iust the cat and mouse fChessl game played
between the Prosecutor and the Defense Attorney] including the alleged to have
been illegally admitted and evidence tenably claimed to have been "WRONC::LY
EXCLUDED" or to have been available only after trial. Schlup v. Delo, ll5 s.ct.
851,865 (1995).

      Furthermore, this Honorable Court of Criminal Appeals held in BROWN, that
the applicant must prove that he relies upon "Newly Discovered" or "Newly Available"
evidence. The term "Newly Discovered Evidence" refers to the evidence that was
not known to the Applicant at the time of trial and could not be known to him
even with.the exercise of due diligence. He cannot rely upon evidence or facts
that were available at the time of his trial. plea, or Post-trial Motions. such
as Motions for New Trial in claims that have already been raised and relected
are not cognizable •.. " HOWEVER, this Honc;rable Court went on to say. "but an
exception·to this rule is when Direct Appeal cannot be ex\)ected to provide an
adeguate record to evaluate the claim in question and the claim might be sub-
stantiated throuoh additional evidence 9athering in a habeas corpus proceeding.
Ex Parte Brown, 205 S.W.3d 538,545 (Tex.Crim.Apo.2006). This is precisely the
point with Ineffective Assistance of Counsel Claims on an 11.07 State Writ of
Habeas Corpus; which is the CONSTITUTIONAL VIOLATION claimed in this ground by
Hamilton and admitted to by the Trial Courtl

      It is for these reasons that Hamilton contends that the Trial Court erred
in it's Recommendation to this Honorable Court. Rehearing o?hould be GRANTED on
this issue as the Trial Courts Recommendation is in conflict with this Honorable
Court's precedent.


***NOTE*** It is worth reminding the Court that the Honorable Fourth Court of
Appeals found error in this case.(See Court's Ooinion). The Trial Court now finds
error in Hamilton's habeas application. ALL CONSTITUTIONAL ERROR. Trial Counsel
and Appellate Counsel BOTH lost Hamilton's record.


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.'
'




    C. )   lAC - APPELLATE COUNSEL


           With no comments this Honorable Court also denied relief on this claim.
    The Habeas Courts .Recommendation is contrary to its Finding of Fact and
    Conclusion of Law• In its Recommendation (Pq.l2, #9) "Applicant complains
     in his Third Groud for relief that Counsel did not raise the issue of Prosecutorial
    Misconduct contrary to Applicant's wishes.". "Said comolaint clearlv indicates
     that alleged misconduct was known to Applicant at time of trial." The Court
     further stated in its Recommendation (Po.l7, #14), "Generally, Prosecutorial
    Misconduct is a type of claim that should be raised up on appeal if a review of
    the record shows that at trial a defendant had knowledge of the factual    ba~is

    for which he supports his Prosecutorial Misconduct .. " See ExParte·Webb, 270
    S.W.3d 108,111 (Tex.Crim.App. 2008). The Court went on to sav. " ••• this Court
    concludes that Applicant had knowledqe at the time of trial of the factual basis
    for which he supports his Prosecutorial Misconduct Claim and said Claim should
    have been raised on appeal." (See Pq. 18, #14).

           When the Habeas Court plainlv admits that the Claim of Prosecutorial
    Misconduct should have been raised on appeal. How can the same Court in the same
    argument not find Counsel to be Ineffective in not doino so? Furthermore, How
    can this Honorable Court not even acknowledqe such CONSTITUTIONAL ERROR?




                                        CONCLUSION


           Hamilton has clearly shown that he was convicted on a Multiplicitous
    Indictment. That the Double Jeopardv Claim is clearly on the face of. the charqinq
    Instrument. The relief GRANTED should have been extended to include Counts 2-6.

           Furthermore, Hamilton has shown that his Actual Innocence claim should
    fall under a Schlup-Type claim as his claim IS Intertwined with CONSTITUTIONAL
    ERROR. The Habeas Court found that Hamilton's Trial Counsel and Appellate
    Counsel were BOTH DEFICIENT AND INEFFECTIVE.

           Finally, Hamilton has clearly shown. and the Habeas Court's own words
    show that Counsel on appeal was also Ineffective in not bringinq forth a Prosecutorial
    Misconduct claim on Direct appeal. A claim that permeated the entire trial.
    Counsel was also requested to bring forth other Exculoatorv Evidence which he
    neqlected to do. (See Ground IIL Applicant's 11.07 Writ and attached Memorandum)

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'
•
    .


        Counsel's deficient performance directed affected the later decision of the
        Honorable Fourth Court of Appeals in affirming Hamilton's conviction. All of
        these Claims have merit and it is for this reason that Rehearinq should be
        GRANTED.


             This Motion is grounded in this Honorable Court's precedent and is made
        in good faith and not for delay.




                                             PRAYER



             WHERE, PREMISES CONSIDERED, Hamilton prays that this Honorable Court GRANT
        his Motion For Rehearing and that relief be GRANTED in his habeas writ. Hamilton
        prays that his conviction be set aside due to Actual Innocence. Hamilton further
        prays that in the alternative, Counts 3-6 also be set aside as they clearly
        violate the Double Jeopardy Clause, and that relief also be GRANTED on Ground
        III finding Counsel on Appeal to be Ineffective, thereby GRANTING Hamilton a
        new appeal so that these claims can be properlv put before the Appellate Court,
        and any other relief that may be due Applicant.




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.. .
'




                                  CERTIFICATE OF SERVICE



            I, Walter Aaron Hamilton, TDCJ-CID #1493992, Applicant/Movant, being
       presently incarcerated at the O.B. Ellis Unit of the Texas Prison system, here
       in Walker County, texas, do hereby certify that a true and correct copy of the
       above and foreaoing Motion For Reconsideration was mailed to: District Attorney,
       Bexar County, 300 Dolorosa St. No. 5072, San Antonio, Texas, 78205, on this
       the 2fnd day of April, A.D. 2015, by depositing the same into the Internal
    Prison Mail System, with first class postage pre-oaid.




                                                       Yl£,~         L&JLL
                                                    ~alter     Aaron Hamilton, Pro-se
                                                        Applicant I Movant




                                     INMATE DECLARATION


            I, Walter Aaron Hamilton, TDCJ-CID #1493992, Applicant, being presently
       incarcerated at the O.B. Ellis Unit of the Texas Prison System, here in Walker
    County, Texas, declare under the penalty of perlury that the above and foreaoing
       is true and correct to the best of my knowledge and belief.


           EXECUTED on this ·the ~d day of April, A.D. 2015.·




                                                     '=Walter Aaron Hamilton, Pro-se
                                                       Applicant I Movant
                                                       TDCJ-CID #1493992
                                                       D.o.B. 11/07/65
                                                       Ellis Unit
                                                       1697 FM 980
                                                       Huntsville, Texas 77343


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