i

No. 13-14-00238-CV



IN THE
THIRTEENTH COURT OF APPEALS
FOR THE STATE OF TEXAS


Jerry Hartfield,

Appellant,

vs.

The State of Texas,

Appellee.

_________________________________

APPELLANTS REPLY TO STATES BRIEF
_________________________________


David R. Dow
Texas Bar No. 06064900
ddow@central.uh.edu
Jeffrey R. Newberry
Texas Bar No. 24060966
jrnewber@central.uh.edu
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
TEL: (713) 743-2171
FAX: (713) 743-2131




ii
TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... ii
INDEX OF AUTHORITIES ................................................................................... iii
APPELLANTS REPLY TO STATES BRIEF ....................................................... 1
I. Mr. Hartfields claim is cognizable in his application filed pursuant to
Article 11.08. ................................................................................................... 4

A. The CCA recognized that the concerns that ordinarily make a pretrial
application an inappropriate vehicle by which to raise a speedy trial claim
are not present in Hartfields case. .................................................................. 4

B. Mr. Hartfields case is fundamentally different from every speedy trial case
cited by the State. ............................................................................................ 9

II. With respect to the second Barker factor, the State misconstrues Vermont v.
Brillon, 556 U.S. 81 (2009). .......................................................................... 16

III. The trial courts ruling that Mr. Hartfield has not waived the attorney-client
privilege was correct. .................................................................................... 19

IV. The State is correct that the third Barker factor is not concerned with
whether Hartfield could formulate a properly-pled speedy-trial claim ......... 22

PRAYER ................................................................................................................. 24
CERTIFICATE OF SERVICE ................................................................................ 25
CERTIFICATE OF COMPLIANCE ....................................................................... 25




iii
INDEX OF AUTHORITIES
Cases

Barker v. Wingo,
407 U.S. 514 (1970) ........................................................................................ 5

Bennet v. State,
818 S.W.2d 199 (Tex. App.Houston [14th Dist.] 1991) ........................... 15

Ex parte Burgett,
850 S.W.2d 267 (Tex. App.Fort Worth 1993) .......................................... 15

Ex parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) .................................................... 4, 9

Ex parte Graves,
271 S.W.3d 801 (Tex. App.Waco 2008, pet. refd) .................................. 13

Ex parte Jones,
449 S.W.2d 59 (Tex. Crim. App. 1970) ........................................................ 10

Ex parte Lamar,
184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd) .......................... 14

Ex parte Weise,
55 S.W.3d 617 (Tex. Crim. App. 2001) ........................................................ 10

Ex parte Wilson,
956 S.W.2d 25 (Tex. Crim. App. 1997) ........................................................ 21

Graves v. Dretke,
442 F.3d 334 (5th Cir. 2006) ......................................................................... 13

Hartfield v. Thaler,
403 S.W.3d 234 (Tex. Crim. App. 2013) ................................................ 2, 3, 4

Lizcano v. State,
No. AP-75,879, 2010 WL 181772 (Tex. Crim. App. May 5, 2010) ............... 2



iv
Ordunez v. Bean,
579 S.W.2d 911 (Tex. Crim. App. 1979) ........................................................ 4

Smith v. Gohmert,
962 S.W.2d 590 (Tex. Crim. App. 1998) .................................................. 4, 11

State v. Munoz,
991 S.W.2d 818 (Tex. Crim. App. 1999) ...................................................... 18

United States v. MacDonald,
435 U.S. 850 (1978) ................................................................................ 4, 5, 6

Vermont v. Brillon,
556 U.S. 81 (2009) .................................................................................. 16, 17

Vermont v. Brillon,
955 A.2d 1108 (Vt. 2008), revd, 556 U.S. 81 (2009) ............................ 16, 17

Zamorano v. State,
84 S.W.3d 643 (Tex. Crim. App. 2002) .......................................................... 5

Statutes

Tex. Disciplinary R. Profl Conduct 1.05 ................................................................ 20

Tex. R. App. P. 74.9 .................................................................................................. 8

Tex. R. Evid. 503 ..................................................................................................... 20

1

No. 13-14-00238-CV



IN THE
THIRTEENTH COURT OF APPEALS
FOR THE STATE OF TEXAS


Jerry Hartfield,

Appellant,

vs.

The State of Texas,

Appellee.

_________________________________

APPELLANTS REPLY
1
TO STATES BRIEF
_________________________________

TO THE HONORABLE JUDGES OF THE THIRTEENTH COURT OF
APPEALS:

On March 4, 1983, the Texas Court of Criminal Appeals issued its mandate
to the 130th Judicial District Court that that court give Mr. Hartfield the new trial
which the CCA had ordered he was due in 1980 (II C.R. at 201-02, Hartfield v.

1
In this reply, Mr. Hartfield addresses only those assertions on the part of the State that
he deems warrant response. He does not abandon any arguments made in his amended brief.






2
State, 13-14-00240-CR).
2
Seven and one half years ago, with the assistance of a
fellow inmate, Jerry Hartfield a man who reads and writes on a first grade level
3

began to alert the State that he had never received the new trial. Hartfield first
alerted the State in a supplement to a habeas application filed pursuant to Article
11.07 of the Texas Code of Criminal Procedure (II R.R. at 73). Two months later,
in January 2007, he asked the CCA to compel a new trial through a petition for a
writ of mandamus.
4
Petition for Writ of Mandamus, In re Hartfield, No. WR-
66,609-02 (Tex. Crim. App. Jan. 31, 2007) (attached as Exhibit E to Appellants
Brief). He next attempted to raise his speedy trial claim in May 2007 in another
application filed pursuant to Article 11.07 (II C.R. at 213, Hartfield v. State, No.
13-14-00240-CR). Five months later, in October 2007, Hartfield began attempting
to raise his claim in the federal courts by filing both a petition for a writ of habeas

2
For the same reasons as those given in Appellants amended brief at 5 n.1, it is
necessary at times in this reply to cite the clerks record filed in Cause No. 13-14-00240-CR.


3
Despite the States contrary assertion, see States Brief at 67, Lizcano v. State, No. AP-
75,879, 2010 WL 181772 (Tex. Crim. App. May 5, 2010) does not support the States claim that
Hartfield cannot rely upon the report of Dr. Owens from his 1978 trial. Lizcano merely extended
the holding of Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) to psychological
examinations to determine mental retardation. Lizcanos holding is that when a defendant
demonstrates intent to introduce evidence of mental retardation, a trial court may order the
defendant to submit being examined by an independent, state-sponsored psychological
examination. Lizcano, 2010 WL 181772 at *8 (emphasis added). It does not support the
States proposition that Hartfield may not rely on the report in these proceedings in the absence
of the Courts acting on the States Lagrone motion. Moreover, the State is the party that offered
Dr. Owens report into evidence in these proceedings at the December 19 hearing as part of its
Exhibit 1.

4
Despite the States contrary assertion, see States Brief at 6 n.5, as the CCA has made
clear its denial of relief on these pleadings was not because it found his speedy trial claim to be
without merit. Hartfield v. Thaler, 403 S.W.3d 234, 240 (Tex. Crim. App. 2013) ([O]ur denial
of [Hartfields] application for writs of habeas corpus and mandamus were based on his failure to
follow the proper procedure).



3
corpus and a petition for a writ of mandamus that asked the federal district court to
order the State to either retry him or release him. Throughout the next six years
that his petition was pending in the federal courts, the State took no action
whatsoever toward bringing him to trial. Federal proceedings culminated in the
Fifth Circuits certifying a question regarding the status of Hartfields conviction
and sentence to the Texas Court of Criminal Appeals in December 2012.
Over one year ago, on June 12, 2013, the Texas Court of Criminal Appeals
answered the question and resoundingly affirmed what Jerry Hartfield already
knew: he has been held by the State for over thirty years under no conviction or
sentence. Hartfield v. Thaler, 403 S.W.3d 234, 240 (Tex. Crim. App. 2013). The
Texas Court of Criminal Appeals suggested that Mr. Hartfield seek release from
his unlawful custody by filing, in the trial court, a pre-trial petition for writ of
habeas corpus. See id. Immediately on the heels of the CCAs ruling, exactly one
year ago, Mr. Hartfields counsel heeded the suggestion of the Court and filed such
a petition (I C.R. at 6-16). It was only then that the State began to take action
toward bringing Mr. Hartfield to trial. However, as proceedings in the court below
have revealed, the passage of time has prejudiced his ability to present a defense to
such a degree that no trial could possibly be fair. Hartfields right to a speedy trial
has been violated. This Court should order his immediate release from an unlawful
confinement that now exceeds three decades.





4
I. Mr. Hartfields claim is cognizable in his application filed pursuant to
Article 11.08.

A. The CCA recognized that the concerns that ordinarily make a
pretrial application an inappropriate vehicle by which to raise a
speedy trial claim are not present in Hartfields case.

Whether it intended to overrule precedent or merely recognized that Mr.
Hartfields case is unique, the Court of Criminal Appeals clearly indicated in its
June 12, 2013 opinion that filing an application under Article 11.08 was one of two
means by which Mr. Hartfield could raise his speedy trial claim. See Hartfield,
403 S.W.3d at 240 (Alternatively, Petitioner could have filed an application under
Article 11.08). The States dismissive attitude toward the CCA it characterizes
the Courts language as a single, fleeting sentence at one point in its reply and as
mere dicta at another, States Brief at 23, 30 is nothing more than an attempt
by the State to continue doing what it has been doing for more than thirty years,
namely: keep Mr. Hartfield incarcerated while he is under no conviction or
sentence. Hartfield, 403 S.W.3d at 240.
The State correctly observes that CCA precedent regarding speedy trial
claims is grounded in the Supreme Courts opinion in United States v. MacDonald,
435 U.S. 850 (1978). States Brief at 19-20; see also Ex parte Doster, 303 S.W.3d
720, 725-26 (Tex. Crim. App. 2010); Smith v. Gohmert, 962 S.W.2d 590, 593
(Tex. Crim. App. 1998); Ordunez v. Bean, 579 S.W.2d 911, 914 (Tex. Crim. App.
1979). But the MacDonald Courts holding that a denial of a speedy trial motion
was not immediately appealable was based on two grounds that were present in the



5
particular case of Mr. MacDonald: that it is typically difficult to determine the
degree to which a defendant has been prejudiced by the delay prior to the trial, and
that allowing immediate appeal on speedy trial issues would frustrate the purposes
of the Speedy Trial Clause. United States v. MacDonald, 435 U.S. at 859-60, 861-
62 (1978). These concerns of the MacDonald Court are present in most, perhaps
nearly all, speedy trial claims, but they are clearly not at issue in Mr. Hartfields
case.
The State concedes that the proper resolution of [a speedy trial] claim often
requires consideration of the impact of the delay upon the defendants ability to
present possible defenses. States Brief at 59 n.25 (quoting 43 George E. Dix &
John M. Schmolesky, Tex. Prac., Criminal Practice and Procedure 35: 26 (3d ed.)
(West 2013)); see also Barker v. Wingo, 407 U.S. 514, 530 (1970); Zamorano v.
State, 84 S.W.3d 643, 647-48 (Tex. Crim. App. 2002). And the State is correct to
observe that [t]his may be impossible to address without careful attention to the
trial evidence, its strengths, and possibly contradicting evidence. States Brief at
21 (quoting 43 George E. Dix & John M. Schmolesky, Tex. Prac., Criminal
Practice and Procedure 35: 26 (3d ed.) (West 2013)). The fact that this inquiry
may typically be impossible, however, is neither true nor relevant in Mr.
Hartfields case, because Mr. Hatfield was already previously tried. Although it
would require speculation to assess prejudice in the case of a defendant who has
not been tried, ascertaining the prejudice in Mr. Hartfields case would not require
any speculation whatsoever. We know what evidence the State would present at



6
trial because the State presented that evidence in its 1977 prosecution of Mr.
Hartfield. And, because of the proceedings in the court below, we know the
current state of that evidence. In short, the first concern expressed by the
MacDonald Court is irrelevant here.
The MacDonald Courts second concern was that allowing speedy trial
claims to be immediately appealed would threaten precisely the values manifested
in the Speedy Trial Clause. MacDonald, 435 U.S. at 862. Specifically, the Court
feared that delay caused by an interlocutory appeal would prejudice the
prosecutions ability to prove its case, increase the cost to society of maintaining
defendants subject to pretrial detention, and prolong the period during which
defendants released on bail may commit other crimes. Id. It is, of course,
laughable to suggest that those concerns are even remotely present in Mr.
Hartfields case.
The CCA ordered a new trial for Mr. Hartfield in 1980. Any prejudice that
would result to the State because of delay and any costs associated with
incarcerating Mr. Hartfield prior to trial have already long since been incurred.
Further, since the CCA issued its most recent opinion, affirming that Mr.
Hartfields incarceration in the Department of Corrections has been entirely
unlawful, Mr. Hartfield has acted with diligence and without delay in seeking relief
in the basis of his speedy trial claim. The CCA ordered a new trial thirty-three
years ago. Measured in that context, the additional time required to fully litigate
Mr. Hartfields speedy trial claim through this Article 11.08 proceeding would



7
constitute a tiny fraction of the delay that has occurred solely as a result of the
States wrongful detention of Mr. Hartfield. However, and importantly, the 11.08
proceedings have to date caused no delay in the new trial proceedings underway in
the trial court. Though it is Hartfields belief these 11.08 proceedings will prove
the new trial proceedings are impermissible, he has taken no action to cause any
delay in the new trial proceedings.
Moreover, any delay in the prosecution of Hartfield, any fault for any
increased difficulty to the State prosecuting its case, and any costs associated with
keeping Mr. Hartfield incarcerated during the delay, would all result from the
States own wrongful conduct. The CCA handed down its opinion ordering a new
trial in 1980. The order became final when the mandate issued on March 4, 1983.
For the next thirty years, the State took no action toward carrying out this dictate.
The State was content to allow Mr. Hartfield to remain in prison under no
conviction or sentence and allow taxpayers to foot the bill for that incarceration for
thirty years. Had Mr. Hartfield not initiated these proceedings, the State would
have been content to keep Mr. Hartfield incarcerated indefinitely in spite of the
CCAs mandate, in spite of any increasing difficulty in prosecuting him caused by
the delay, and in spite of the costs of incarcerating him.
United States v. MacDonald undergirds the CCAs previous rulings that
speedy trial claims are not immediately appealable and therefore not cognizable in



8
petitions filed pursuant to Article 11.08. Realizing that none of the concerns that
were present in MacDonald have any applicability to Mr. Hartfields case, the
Court of Criminal Appeals in June 2013 stated unequivocally that a petition filed
pursuant to Article 11.08 is one of two means by which Mr. Hartfield could
exhaust his claim. The statement was certainly not dicta, and it is inconceivable
that the CCA made this observation unthinkingly. On the contrary, the issues of
whether Mr. Hartfields claim has been exhausted and whether attempts to exhaust
would be futile were threshold issues in proceedings that were at that time pending
in the federal courts.
If the State believed that the CCA had erred in addressing the exhaustion
issue in its June opinion, a mechanism existed by which the State could have raised
that concern. Within fifteen days of the Court issuing its opinion, the State could
have filed a motion for rehearing. Tex. R. App. P. 74.9; see also I R.R. (Hearing
on States Motion to Dismiss Writ of Habeas Corpus) at 18 (Judge Estlinbaum:
The State could have filed a motion to rehear). The State did not file such a
motion. The CCAs June opinion authoritatively identifies the state law procedural
avenues applicable in Mr. Hartfields. One of those avenues is a habeas petition
under Article 11.08. This Court has the authority to grant relief and order Mr.
Hartfields immediate release.



9
B. Mr. Hartfields case is fundamentally different from every speedy
trial case cited by the State.

The State cites several cases in support of its claim that a pretrial habeas
application may not be used to assert a violation of the right to a speedy trial. But
every case relied on by the State is fundamentally and meaningfully different from
Mr. Hartfields.
For example, Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010),
States Brief at 18, did not even involve the same legal issue presented in Mr.
Hartfields case. The central legal issue in Doster was a failure to comply with the
Interstate Agreement on Detainers. Ex parte Doster, 303 S.W.3d 720, 721 (Tex.
Crim. App. 2010). Though noting the two were similar, the Court expressly stated
the speedy disposition of the charges under the IAD is not an identical right to
the constitutional right to a speedy trial. Id. at 727. Mr. Hartfields claim is
that his constitutional right to a speedy trial was violated. The Courts opinion on
whether pretrial habeas is available to a claim raised under the IAD is not
applicable to Hartfield.
Similarly, the relevant issue in Ex parte Weise, 55 S.W.3d 617 (Tex. Crim.
App. 2001), States Brief at 18, has no relevance to Mr. Hartfields case. The issue
in Weise was whether a pretrial writ of habeas corpus may issue on the ground
that a penal statute is being unconstitutionally applied because of the allegations in



10
the indictment or information. Ex parte Weise, 55 S.W.3d 617, 618 (Tex. Crim.
App. 2001). In the course of its discussion, the CCA observed that it had
previously held that a speedy trial claim could not be raised through a pretrial writ
of habeas corpus, but it neither amplified nor applied that holding in Weises case.
Id. at 620. Instead, the CCA in Weise simply held that the issue of whether the
illegal dumping statute requires a culpable mental state is not appropriate for
interlocutory appeal; that holding is wholly inapplicable to Hartfield. Id. at 621.
Finally, Ex parte Jones, 449 S.W.2d 59 (Tex. Crim. App. 1970), upon which
the State also relies, States Brief at 18, addresses a different procedural vehicle
from the one invoked by Mr. Hartfield. Although the CCAs opinion in Jones
lacks a great deal of details, it seems to address whether a denial of a motion to set
aside an indictment filed pursuant to Article 27.03 can be immediately appealed.
See Ex parte Jones, 449 S.W.2d. 59, 60 (Tex. Crim. App. 1970). Mr. Hartfield did
not raise his speedy trial claim in an Article 27.03 motion. Recognizing this
procedural vehicle would not allow for immediate appeal, Mr. Hartfield chose the
other procedural vehicle listed by the CCA as being available to him a petition
filed pursuant to Article 11.08.
5


5
The State is correct that counsel for Mr. Hartfield filed a motion to set aside the
indictment pursuant to Article 27.03 of the Texas Code of Criminal Procedure (I C.R. at 114-16,
Hartfield v. State, 13-14-00240-CR). Counsel filed the motion on the eve of the December 19
hearing (six months after filing the application filed pursuant to Article 11.08 and three weeks



11
The State also cites several cases that do superficially resemble Mr.
Hartfields, but closer examination reveals important differences between those
cases and Hartfields. For example, Smith v. Gohmert, States Brief at 18-20, does
address whether Smith could raise his constitutional speedy trial claim in a pretrial
writ of habeas corpus. Smith v. Gohmert, 962 S.W.2d 590, 591 (Tex. Crim. App.
1998). But the facts of the case are so dissimilar to the facts in Mr. Hartfields as
to make reliance on it untenable. Specifically, at the time he was charged with
capital murder, Smith had served only six months of a ninety-nine year sentence
for aggravated robbery. Id. Seven and one-half years later or roughly eight years
in to his ninety-nine year sentence he raised a speedy trial claim through a
petition for mandamus and/or habeas corpus relief challenging the capital murder
prosecution. Id. Observing that both mandamus and habeas corpus are
extraordinary remedies and, as such, are unavailable if there is an adequate remedy
at law, the CCA held that pursuing the speedy trial claim through an Article 27.03
motion was an adequate remedy for Smith precisely because he was many years
away from being parole eligible on his ninety-nine year sentence for aggravated

after the trial court denied the States motion to dismiss (I C.R. at 43, Hartfield v. State, 13-14-
00240-CR)) because the Court had indicated it believed that should it find in favor of Mr.
Hartfield, it needed some vehicle by which to dismiss the indictment. Both the motion and
counsels testimony at the December 19, 2013 hearing make clear the motion was filed solely for
this purpose and that the vehicle by which Hartfield raised his speedy trial claim was the
application filed pursuant to Article 11.08 (I C.R. at 114, Hartfield v. State, 13-14-00240-CR; II
R.R. at 1-3).



12
robbery. Hartfields situation is obviously and significantly different from
Smiths. Unlike Smith, who was in prison under a lawful ninety-nine year
sentence, Hartfield has been held by the State under no conviction or sentence for
thirty years. Unlike Smith, who would have remained in prison for decades
regardless of how his speedy trial challenge was resolved, Mr. Hartfield would be
entitled to immediate release if he were to prevail.
Moreover, perhaps because of the extraordinary and unique facts in Mr.
Hartfields case, the CCAs June opinion recognized that a motion to set aside the
indictment in Mr. Hartfields case was not an adequate remedy at law and that a
pretrial writ of habeas corpus was therefore an available vehicle through which to
raise his speedy trial claim. Forcing Hartfield to seek relief by raising his claim in
a pretrial motion to set aside the indictment would add potentially a year or more to
the already thirty years that he has been wrongfully imprisoned. A pretrial motion
is simply not an adequate remedy for Mr. Hartfield, and the Court of Criminal
Appeals recognized this very fact in its June 12 opinion.
The State also cites an opinion from the Waco Court of Appeals overruling a
speedy trial claim raised by Anthony Graves in a pretrial writ of habeas corpus.
States Brief at 20. The appellate court held that Gravess claim was not
cognizable because a pretrial motion filed pursuant to Article 27.03 was an
adequate remedy. Ex parte Graves, 271 S.W.3d 801, 807-08 (Tex. App.Waco



13
2008, pet. refd). Though Anthony Graves and Jerry Hartfield are similar in that
new trials were ordered for both, Gravess speedy trial claim is distinguishable
from Hartfields. The Fifth Circuit opinion ordering the district court to grant his
petition for a writ of habeas corpus was handed down on March 3, 2006. Graves v.
Dretke, 442 F.3d 334 (5th Cir. 2006). The Fifth Circuit did not hold that Graves
had been incarcerated in the absence of a valid conviction; indeed, it was the Fifth
Circuit itself that set aside the conviction. The same year the court of appeals
issued its judgment, Graves was released from TDCJ and transferred to the county
jail. See Offenders No Longer on Death Row,
http://www.tdcj.state.tx.us/death_row/dr_offenders_no_longer_on_dr.html
(indicating Graves was released from TDCJ on September 7, 2006). Proceedings
in what would have been Mr. Gravess second trial were initiated soon after he was
returned to the county jail and had been initiated prior to Mr. Graves filing his
pretrial writ of habeas corpus.
Whereas Graves was transferred to the county jail a matter of months after
his conviction was vacated, Mr. Hartfield remained in the custody of the TDCJ for
more than thirty years following the opinion vacating his conviction. The Waco
courts opinion in Mr. Gravess case therefore cannot control Mr. Hartfields.
Ex parte Lamar, 184 S.W.3d 322 (Tex. App.Fort Worth 2005, pet. refd),
States Brief at 20, also differs factually from Mr. Hartfields case in an important



14
way. Lamar received one year of deferred adjudication in November 2003. Two
months later, in January 2004, Lamar was arrested on an unrelated matter. Id. at
323. And less than a month after that, on February 2, 2004, the State filed a
motion to adjudicate the original charge (i.e., the one to which Lamar had received
deferred adjudication). A year later, on February 22, 2005, Lamar filed a pretrial
writ of habeas corpus raising a speedy trial claim. That same day, the trial court
was prepared to set the case for trial. Id. Lamar asked the court not to set the case
for trial until after the speedy trial issue had been resolved. Finding that a pretrial
motion to set aside the indictment was an adequate remedy for Lamar, the Fort
Worth court held she was not entitled to habeas relief.
Unlike Lamar, Mr. Hartfield has not asked the Court to delay proceedings in
the States effort to retry him while his speedy trial claim is resolved. And more
importantly, Lamars trial court was ready to proceed to trial one year after the
State filed its motion to adjudicate nowhere near the thirty years Mr. Hartfield
has waited.
The remaining two cases relied upon by the State are just as far afield. Ex
parte Burgett, 850 S.W.2d 267, 267 (Tex. App.Fort Worth 1993), States Brief
at 20, involved a party who filed a speedy trial challenge a mere three months
following his arrest. And Bennet v. State, 818 S.W.2d 199, 200 (Tex. App.
Houston [14th Dist.] 1991), States Brief at 20, involved a defendant who appeared



15
in court eight times over the eleven months following his indictment and whose
trial commenced a mere fifteen months after he was indicted.
Every case relied upon or even cited by the State is so dramatically unlike
Mr. Hartfields case as to be irrelevant and uncontrolling. None of the applicants
in any of the cases cited by the State waited anywhere near the thirty years for their
trial that Mr. Hartfield has waited for his. Indeed, counsel is aware of no cases in
Texas or otherwise in which any applicant has waited an amount of time
comparable to that endured by Hartfield. Mr. Hartfields case is extraordinary and
probably unique; and its uniqueness was implicitly acknowledged by the CCA
when it acknowledged the availability of a pretrial writ of habeas corpus as one of
the two means by which Mr. Hartfield could raise a speedy trial claim to challenge
his lengthy and unlawful incarceration.
Because Hartfields claim is cognizable in an application filed pursuant to
Article 11.08, like the Court below did, this Court should address the merits of his
claim.
II. With respect to the second Barker factor, the State misconstrues
Vermont v. Brillon, 556 U.S. 81 (2009).

As was the case in the court below, the State would have this Court believe
that the failure to move the case forward at issue in Vermont v. Brillon, 556
U.S. 81 (2009), provides support for its proposition that the State is not responsible



16
for the delay in bringing Hartfield to trial. States Brief at 44-51. By removing
this one phrase from its context to support its argument that Hartfield then and
now incarcerated by the State had some affirmative duty to bring himself to trial
(though the CCAs 1983 mandate was obviously addressed to the State and not to
Hartfield), the State misconstrues Brillon. However, as the opinion below in
Brillon reveals, the failure to which the Court referred in fact involved a series of
different attorneys representing Brillon and Brillon taking affirmative steps to
delay the trial, Vermont v. Brillon, 955 A.2d 1108 (Vt. 2008), revd, 556 U.S. 81
(2009), and Brillon therefore provides no support for the States claim. Brillon
was arraigned on July 30, 2001. Id. at 1117. The first scheduled setting was an
evidentiary hearing set for August 15, but the day before the hearing, defense
counsel requested a continuance. Id. The next setting noted in the opinion was
scheduled for October 2, but counsel again asked for a continuance. Id. The State
asked for the trial to be set for February 2002, but four days before jury selection
was to begin, defense counsel filed another motion for continuance. Id. Brillon
then told his attorney he was fired, and counsel filed a motion to withdraw. Id. at
1118. A new attorney was appointed who felt he was conflicted, so the court
appointed a third. Id. Three months later, Brillon filed a pro se motion seeking to
have the third attorney removed. Id. This pattern continued throughout the period
of delay. Though Brillon was upset with his attorneys asking for continuances and



17
failing to communicate properly with him delays he said amounted to them
failing to move his case forward and though he requested to be tried promptly,
the Vermont Supreme Court erred in attributing this delay cause by Brillons
counsel to the State. Vermont v. Brillon, 556 U.S. 81, 92 (2009). Had
Hartfields trial counsel taken affirmative steps such as requesting continuances or
had counsel merely agreed to continuances sought by the State, these actions
would be attributable to Hartfield, and it would be appropriate to find him
responsible for any portion of delay caused by those actions. However, to suggest
that Brillon stands for the proposition that Hartfield is responsible for the delay
because trial counsel did nothing is to misrepresent the holding in Brillon. The
court below correctly recognized that Brillon does not stand for the proposition
that Hartfield is responsible for the delay in bringing him to trial (I C.R. at 169-71).
State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999), States Brief at 43-
44, similarly provides no support for the States proposition that the delay should
be found to be attributable to Mr. Hartfield. Throughout the seventeen-month
period that Munozs trial was delayed the State and counsel for Munoz were
engaged in ongoing plea negotiations. State v. Munoz, 991 S.W.2d 818, 822 (Tex.
Crim. App. 1999). After the fourth plea offer, the parties reached an agreement,
but at the June 18, 1996 hearing, Munoz reneged on the deal and asked for a better
one. Id. at 823. The State refused and the court set a trial date for August 19,



18
1996. Id. The CCA held that delay caused by good faith plea negotiations is a
valid reason for the delay and should not be weighed against the prosecution. Id. at
824. Munoz provides no assistance to the State in trying to justify its delay in
bringing Hartfield to trial. Throughout the delay, the State was engaged in no good
faith negotiations with Hartfield. The State, ignoring the CCAs mandate, took no
actions. Munoz certainly does not stand for the proposition that the State can
justify the delay when he does absolutely nothing for thirty years to attempt to
resolve a case or bring it to trial.
The Court should find the court below was correct that [n]either Hartfield
nor his attorneys bear any blame for the 30-plus year delay in the case being re-
tried and that the second Barker factor weighs against the State (I C.R. at 171,
175).
III. The trial courts ruling that Mr. Hartfield has not waived the attorney-
client privilege was correct.

Robert Scardino represented Mr. Hartfield at his trial in 1978 and on direct
appeal. Attorneys from the Attorney Generals office procured an affidavit from
Scardino in 2008 during federal habeas proceedings. On January 29, 2009,
Magistrate Judge Stephen Smith of the Southern District of Texas granted Mr.
Hartfields motion to strike Scardinos affidavit because the affidavit violates the



19
attorney-client privilege. Order, Hartfield v. Quarterman, No. H-07-3676 (S.D.
Tex. Jan. 29, 2009). As the court recognized, while a
habeas petitioner implicitly waives the attorney-client privilege when
he asserts a claim of ineffective assistance of counsel, see, e.g.,
Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003), a habeas
petitioner does not implicitly waive the attorney-client privilege when
he asserts other claims that do not question his attorneys
effectiveness. See, e.g., In re Lott, 139 Fed. Appx 658, 660-61 (6th
Cir. 2005). Hartfield has not asserted an ineffective assistance of
counsel claim in his petition nor has he expressly waived the attorney-
client privilege.

Id. The affidavit given by Mr. Scardino purports to disclose confidential
conversations conversations that Mr. Hartfield denies took place between
Scardino and Hartfield. The affidavit is a blatant ethical violation. A client has a
privilege to prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition of professional
legal services to the client. Tex. R. Evid. 503(b)(1). A communication is
confidential if it is not intended to be disclosed to third persons. Tex. R. Evid.
503(a)(5). Except in certain circumstances, a lawyer shall not knowingly[] reveal
confidential information of a client or a former client to anyone, other than the
client, the clients representatives, or the members, associates, or employees of the
lawyers law firm. Tex. Disciplinary R. Profl Conduct 1.05(b).
As Magistrate Judge Smith recognized, a client can waive the privilege
when he raises a claim that his attorney provided ineffective assistance. See Tex.



20
R. Evid. 503(d)(3); Tex. Disciplinary R. Profl Conduct 1.05(c)(5)-(6). Mr.
Hartfield has never raised a claim to any court that Mr. Scardino provided
ineffective assistance. A lawyer may reveal confidential information when he has
been expressly authorized to do so by the client, the client consents, when the
lawyer has reason to believe it is necessary to prevent the client from committing a
criminal or fraudulent act, or to the extent revelation is necessary to rectify the
consequences of a clients criminal or fraudulent act. Tex. Disciplinary R. Profl
Conduct 1.05(c). None of these exceptions are applicable. Just as the affidavit
was stricken from the federal habeas proceedings, the court below was correct not
to consider the affidavit or to allow Scardino to testify about its contents at the
December 19, 2013 hearing. In its brief, the State argues that Mr. Hartfield
impliedly accused Mr. Scardino of being ineffective. States Brief at 70-71. The
State cites no examples and counsel is unaware of any examples of any court
finding that a defendant raised a claim of ineffective assistance impliedly. If it
were possible to impliedly raise a claim of ineffective assistance of counsel and
counsel in no way supports the proposition that such is possible raising the claim
would still require a defendant to demonstrate that his attorney performed his
duties in a manner that fell below an objective standard of reasonableness. Mr.
Hartfield would not be able to raise a claim either expressly or impliedly that
Mr. Scardino was ineffective for failing to inform him that he could file a writ of



21
habeas corpus to reverse the purported commutation because Mr. Scardino had no
duty to inform him of this. In Ex parte Wilson, 956 S.W.2d 25, the Court of
Criminal Appeals held that while an appellate attorney has an obligation to inform
a defendant of the result of his appeal and that he can pursue discretionary review
on his own, because the defendant has no right to counsel for purposes of
discretionary review, appellate counsel has no duty to express professional
judgment about possible grounds for review or to discuss the advantages of further
review. Ex parte Wilson, 956 S.W.2d 25, 26-27 (Tex. Crim. App. 1997). Just as a
defendant has no right to counsel for purposes of discretionary review, a defendant
has no right to counsel during state habeas proceedings unless he is under a
sentence of death. Mr. Hartfield was not under a sentence of death and had no
right to counsel in habeas proceedings. Scardino had no duty to discuss the
advantages of habeas proceedings. Without a duty, Hartfield could not either
expressly or impliedly raise a claim that Scardino was ineffective. Mr. Hartfield
has in no way expressly or impliedly waived the attorney-client privilege.
Furthermore, the affidavit and the testimony the State sought to elicit at the
hearing is irrelevant to the Barker analysis. As Hartfield has argued to this Court
and the court below and as the court below correctly recognized, finding Hartfield
responsible for the delay in bringing him to trial requires finding that he took
affirmative steps to delay the trial. Regardless of whether the purported



22
communication between Scardino and Hartfield occurred and Hartfield certainly
does not concede it did [n]either the [sic] Hartfield nor his attorneys sought
delays, continuances or took any other acts to prevent the Wharton County district
courts from trying the case at any time after mandate issued on March 4, 1983 (I
C.R. at 171). [T]he State has not identified one single action taken by Hartfield or
his attorneys to delay this case or prevent the case from being called to trial (I
C.R. at 171).
IV. The State is correct that the third Barker factor is not concerned with
whether Hartfield could formulate a properly-pled speedy-trial claim.

Judge Estlinbaum found that the only Barker factor that weighs against
Hartfield is the third factor: whether he asserted the right to a speedy trial (I C.R. at
191). He weighed this factor against Hartfield because he found that the
documents in which Hartfield expressed his desire for a new trial were not properly
pled. See, e.g., I C.R. at 178 (Hartfield did not file the writ on the Court of
Criminal Appeals prescribed form); I C.R. at 179 (faulting Hartfield for filing his
petition for a writ of mandamus in the wrong court); I C.R. at 180 (finding a
subsequent habeas application was not an assertion of his right to a speedy trial
because it failed to satisfy any of the exceptions that allow a court to consider a
subsequent application).



23
The State is correct that the third Barker factor is concerned with whether
[Hartfield] wanted a new trial, not whether he could formulate a properly-pled
speedy-trial claim. States Brief at 66. Hartfield expressed his desire for a new
trial in numerous documents all of which the State received notice. The court
below erred in finding these were not assertions of his right to a speedy trial. This
Court should find that because Hartfield did assert his right to a speedy trial, this
factor, like the other three, weighs against the State and that Hartfields right to a
speedy trial has been violated.



24
PRAYER
WHEREFORE, Mr. Hartfield respectfully prays this Court finds that his
right to a speedy trial under the Sixth Amendment has been violated. If this Court
finds that his constitutional right to a speedy trial has been violated, the indictment
against him should be dismissed with prejudice and he should be released.
Respectfully Submitted,

s/ David R. Dow
___________________________
David R. Dow
University of Houston Law Center
Texas Bar No. 06064900
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131

s/ Jeffrey R. Newberry
__________________________
Jeffrey R. Newberry
Texas Bar No. 24060966
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-6843
Fax (713) 743-2131


Counsel for Jerry Hartfield



25
CERTIFICATE OF SERVICE

I certify that on the 20th day of June 2014, a true and correct copy of the
above legal document was delivered to the following:

The Honorable Steven Reis
Criminal District Attorney
1700 7th Street, Room 325
Bay City, Texas 77414-5094
Tel. (979) 244-7657
Fax (979) 245-9409


s/ Jeffrey R. Newberry
_________________________
Jeffrey R. Newberry



CERTIFICATE OF COMPLIANCE

This reply complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in a conventional typeface using MS Word in Times
New Roman 14-point font for body text and 12-point font for footnote text. The
reply contains 5,825 words, excluding the parts exempted by Tex. R. App. P.
9.4(i)(1)


s/ Jeffrey R. Newberry
_________________________
Jeffrey R. Newberry