Case Information

*1 ' .

IN THE .

FILED IN COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS OF TEXAS MAY 05 2015 Abel Acosta, Clerk RECEIVED IN No. WR-80,458-01 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 *3 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-

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) *5 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 *6 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. *7 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.

' .

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) *9 ' .

•

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.

*10 ' . ..

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