Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 1/26/2015 8:21:25 PM KEITH E. HOTTLE Clerk *1 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 In The Fourth Court Of Appeals San Antonio, Texas 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 . 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 Martinez’s convictions in an unpublished Memorandum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 . 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 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, vi z., that Mr. Martinez failed to explain
how “each ruling made by the trial court was ‘clearly erroneous.’” Slip op . at 10-1, citing
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]
*4 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 . 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 , and has addressed the court’s
individual rulings, with authorities as to why the rulings were clearly erroneous.
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 . 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 .
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 *6 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 N ANCY B. B AROHN 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
[1] As it was, Mr. Martinez’s brief was in excess of the word limitation and required permission of the court to file.