                                                                             WR-82,629-01
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 9/10/2015 1:25:30 PM
                                                                Accepted 9/10/2015 2:15:25 PM
                                                                                ABEL ACOSTA
                              WR-82,629-01                                              CLERK
                       TR. CT. NO. W10-00678-P (A)
                                                                 RECEIVED
                                                          COURT OF CRIMINAL APPEALS
EX PARTE                            §           IN THE   TEXAS 9/10/2015
                                                            ABEL ACOSTA, CLERK
                                    §
                                    §           COURT OF
                                    §
GERARDO REYNA                       §           CRIMINAL APPEALS


         OBJECTIONS TO THE TRIAL COURT’S FINDINGS
          AND REQUEST FOR REMAND FOR HEARING

        Now comes Gerardo Reyna, Applicant, and files these objections to

the trial court’s findings of fact and conclusions of law recommending re-

lief be denied. In support thereof, Reyna shows the following:

 I.     Introduction

        A shooting occurred at a residential area in Irving at approximately

11:30 p.m. on June 15, 2008. The Dallas Court of Appeals, in its opinion

on Reyna’s direct appeal, characterized the record as establishing that

Reyna shot the deceased as he was dropping off passengers, including the

mother of Reyna’s child. Reyna v. State, No. 05-11-00995-CR, 2013 WL

1317223 (Tex. App.—Dallas 2013, pet. ref’d). At trial, however, Reyna

maintained he was not the shooter. The State’s primary witnesses other-

wise were associates of Reyna who implicated him in the shooting.


                                        1	  
          In Reyna’s writ application he complained, among other things,

that the prosecution failed to disclose that it offered three key witnesses

leniency in exchange for their testimony, which each received after the

jury found Reyna guilty. The trial court refused to grant relief, however,

because it found: (1) the prosecutor denied offering any witness leniency;

(2) that Cardenas received favorable treatment in federal court did not

necessarily reflect any deal; and (3) Medina and Cardenas would have

testified, regardless.

          The trial court’s findings are incorrect. There is explicit evidence

that the prosecution offered deals to the witnesses. And that is all that

matters. Whether the witnesses in fact benefited, or would have testified

regardless, is not dispositive. Accordingly, Reyna objects to the trial

court’s findings of fact and conclusions of law denying relief.

  II.     The offer of leniency, not just agreed-upon deals, must be
          disclosed to the defense
	  

          In United States v. Giglio 405 U.S. 150, 152 (1972), the Supreme

Court considered whether the government’s failure to disclose an alleged

promise of leniency made to a key witness in return for testimony violates

a defendant’s right to due process, thus requiring a new trial. In that

	                                      2	  
case, Giglio filed a motion for new trial based on newly discovered evi-

dence indicating that the government failed to disclose a promise not to

prosecute a key witness in the case in return for his testimony. Id. at 151.

The Supreme Court found that at least one assistant United States at-

torney told the key witness that he would not be prosecuted if he cooper-

ated with the government. Id. at 153. The failure to disclose the promise

constituted a Brady violation and required a new trial because “the false

testimony could . . . in any reasonable likelihood have affected the judg-

ment of the jury . . . .” Id. at 154 (citing Napue v. Illinois, 360 U.S. 264,

271 (1959)).

       In United States v. Bagley, the Supreme Court considered whether

failure to disclose impeachment evidence, that is, the possible bias or in-

terest of a witness resulting from inducements made by the government,

violated the defendant’s right to a fair trial. 473 U.S. 667 (1985). In Bag-

ley, defense counsel requested in discovery motions that the prosecutors

disclose any inducements made to any witnesses. Id. at 669-70. The pros-

ecution failed to disclose that it had given two key witnesses a possibility

of financial reward for their testimony if the testimony led to the convic-



	                                    3	  
tion of the defendant in the case. Id. at 671. The Supreme Court re-

manded the case to the Court of Appeals to consider whether the testi-

mony of the witnesses was “material.” Id. at 684.

       It is crucial to note that offers of leniency, not just firm deals, are

required to be disclosed. In Giglio, the Supreme Court noted two offers:

in one affidavit a promise was made to the witness that if he testified, he

would not be prosecuted; in the second affidavit the witness was told he

would definitely be prosecuted if he did not testify and that if he did tes-

tify he would be obliged to rely on the “good judgment and the conscience

of the government” as to whether he would be prosecuted. Giglio, supra,

405 U.S. at 153. Thus, it appears to this Court that even in Giglio, there

was some question as to the directness and unequivocality of the agree-

ment not to prosecute.

       This Court has likewise required the disclosure of offers of leniency.

In Burkhalter v. State 493 S.W.2d 214 (Tex. Crim. App. 1973), both the

witness and his attorney admitted that, although no direct promise of

immunity from prosecution was ever conveyed to Whitehurst, he was told

that his testimony “could help his case.” This Court found it unrealistic



	                                     4	  
 to draw a line between an outright promise not to prosecute and a very

 real inference not to prosecute.

III.     All three witnesses benefitted from their testimony

         Michael Livermore, accompanied by his attorney, testified he shel-

 tered Reyna while the police were searching for him. (RR4.15-22). At the

 time of his testimony, Livermore had pending charges for burglary and

 drug possession and was on probation for a gun charge. (RR4.25). Liver-

 more’s probation revocation hearing was reset while Reyna’s case was

 pending. Ultimately, Livermore received only a 30-day sentence on the

 firearm charge and probation on the drug charge. The burglary case was

 reduced to a misdemeanor, for which Livermore received a thirty-day

 sentence. Livermore’s records are attached as Exhibit D.

         Jesus Cardenas, who also appeared as a witness accompanied by

 his attorney, had pending DWI and retaliation charges. (RR3.65) Addi-

 tionally, he was facing sentencing in federal court on charges for posses-

 sion of methamphetamine and possession of firearms. (RR3.103). Though

 his cases were reset during the pendency of Reyna’s trial, he denied re-

 ceiving any offer for assistance with his cases. (RR3.106, 118). Following



 	                                   5	  
Reyna’s trial, however, the pending State charges have never been re-

solved, and the federal sentence was reduced because of his assistance to

the State in Reyna’s case. See Exhibits E (state records) and F (federal

record).

        Roman Medina, who also appeared as witness accompanied by his

attorney, had pending charges of felon in possession of a firearm. Accord-

ing to his videotaped statement, made the day of his arrest (Exhibit G),

Medina was immediately concerned about the charges against him. Alt-

hough during his testimony Medina denied loading the weapons into his

car, a contemporaneous police reports contradicts his trial testimony. See

Exhibit H. Medina’s case was repeatedly reset because Medina was serv-

ing as a witness. Less than one month after Reyna’s trial, Medina’s

charge was reduced to a misdemeanor and he was sentenced to time

served. See Exhibit I.

IV.     The evidence clearly indicates that each witness was of-
        fered leniency in exchange for his testimony
	  

        In recommending that Reyna’s application for a writ of habeas cor-

pus be denied, the trial court found, on the prosecutor’s word alone, that

no plea deals were offered. See Findings at 10. This is false.

	                                   6	  
       First, the Court expressly addressed the deal Cardenas received.

More significantly, though, there is no mention of the leniency accorded

witnesses Livermore and Medina. The trial court has an obligation to ad-

dress each and every claim raised.

       In fact, all three witnesses had pending charges, and all three wit-

nesses’ cases were passed repeatedly until Reyna’s case was tried. The

reset forms explicitly indicate that resets were granted for anticipated

testimony. The very existence of such an arrangement inherently proves

an expectation of reward—there is no other reason to reset the case. Fur-

ther, while the Court found that Medina and Cardenas would have testi-

fied anyway, the finding is undermined by the fact that resets were

granted in order to procure their testimony. The only logical conclusion

is that the state expected witness co-operation and was postponing sen-

tencing to achieve that goal.

       Moreover, Medina’s attorney explicitly acknowledged that Medina

had been threatened with a federal prosecution if he did not co-operate.

(Writ Hearing-6) She also admitted telling Medina that his testimony

would benefit him. (Writ Hearing-7) In order to get that benefit, his cases



	                                   7	  
were passed several times expressly so that he could testify. (Writ Hear-

ing-7) Even though a specific bargain was not made, she understood that

the disposition of his case would be based on his testimony. (Writ Hear-

ing-7) She acknowledged the common practice that testimony would be

rewarded. (Writ Hearing-8).

              Livermore’s attorney, too, testified that, while he did not remember

the specific language used, he could not imagine permitting Livermore to

testify without such an understanding. (Writ Hearing-23,24,28) Subse-

quently, the trial prosecutor advised Livermore’s prosecutor of his testi-

mony. (Writ Hearing-27)

              In this case, Medina was expressly told that if he did not co-operate

he would be charged federally. His attorney conveyed to him the usual

practice that testimony is rewarded. To argue that he stood not to profit

flies in the face of the record. Likewise, Livermore only testified because

he expected to gain. His attorney, while not remembering the exact

words, acknowledged the expectation. Yet the jury never heard about any

of these arrangements.

       V.     Conclusion



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      The trial court rejected Reyna’s writ application because the prose-

cutor denied offering these witnesses deals. The evidence makes clear,

though, that each testified as a result of offered leniency. Reyna thus ob-

jects to the trial court’s findings of fact and conclusions of law.

                                  Prayer

      Wherefore, premises considered, Applicant prays that this Court

will grant his writ and remand the case for a new trial.

                                    Respectfully submitted,


                                    /s/ Bruce Anton
                                    BRUCE ANTON
                                    Bar Card No. 01274700
                                    SORRELS, UDASHEN & ANTON
                                    2311 Cedar Springs Road
                                    Suite 250
                                    Dallas, Texas 75201
                                    (214)-468-8100 (office)
                                    (214)-468-8104 (fax)

                                    Attorney for Applicant




                                      9	  
                        Certificate of Service

      A copy of these Objections has been mailed to the Appellate Sec-
tion, Dallas County District Attorney’s Office, 133 N. Riverfront Blvd.,
LB-19, Dallas, Texas, 75207 on ____________
                                 SEPTEMBER 10 2015.



                                  /s/ Bruce Anton
                                  BRUCE ANTON




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