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IN THE CQURTOFCR|M|NAL AppEALS
CoURT oF cRIMINAL APPEALS NOV 05 2013
AUSTIN/ TEXAS
A@e%
Ex parte § COSU,@€@W
Valentin Moreno, Jr., § Writ No. 49,474-05
Applicant §

APPLICANT'S OBJECTIONS TO THE TRIAL COURT'S
FINDINGS OF FACT, CONCLUSIONS OF LAW:
RECOMMENDATION AND ORDER

 

TO THE MOST HONO§ABEE COURT OF'CRIMINAL APPEALS:

COMES NOW, Valentin Morenoh Jr., Applicant, Pro Se in the above referenced
cause, and respectfully files 'Applicant's Objections To The Trial Court's Fdxfrgs
Of Fact, Conclusions Of Law, Recommendation And Order'. In support, thereof, the
Applicant would show the following:

I.
JURISDICTION

This most Honorable Court posses exclusive habeas corpus jurisidiction over
the parties and subject-matter, herein, pursuant to Chapter ll in the Texas Code

of Criminal Procedure Ann. (Vernon 2015).

II.
STATEMENT OF CURRENT FACTS

 

l. Applicant filed a successive application for a writ of habeas corpus, on June
15, 2015. Therein, challenging a jury's guilty verdict for the offense of

Capital Murder, under a claim of actual innocence.

2. The Attorney Representing the State, filed the State's Original Response and
Answer, on July 8/ 2015.

3. The trial Court_adopted, the State's proposed "Findings of Fact/ Conclusions

of Law, Recommendation and OrderV, on June 20, 2015.

4. The successive application/ was received and presented to this Honorable Court,

on Spetember 22, 2015. Where it is currently pending.

Page l.

III.
STANDARD__

¢

Applicant's application is a successive writ of habeas corpus, therefore/
in order for review and consideration of the merits of applicat's claims, hernEt
first overcome Section 4, Article ll.O7 of the Texas Code of Criminal Procedure.
To do so, Applicant must met the "fundamental miscarriage of justice" exception
in Section 4(a)(2). Applicant is required to make a 'prima facie' showing of
actual innocence, inforder to demonstrate that the constitutional violations at
his trial did, in fact, result in a miscarriage of justice; 'the conviction of
one who is innocent'. See; Ex parte Brroks, 219 S.W.3d 396, 401 (TCCA 2007).

"A credible claim of actual innocence serves to bring the applicant within
the "narrow class of cases" implicating a fundamental miscarriage of justice."
In other words, showing actual innocence by a preponderance of the evidence is a
gateway through which a habeas applicant must pass in order to have his otherwise
barred constitutional claims considered on the merits. Id at 400 (citdgj&juup\n¢Dek»
513 U.S. 298, 315 (1995).

A credible gateway claim,_requires reliable evidence that was not present at
trial. And, Applicant's burden at the gateway ‘stage', is to demostrate that more
likely than not, in light of the new evidence no reasonable juror would find him
guilty beyond a 'reasonable doubt'. To make such an assessment, the habeas court
needs a fully developed record, and in respect to the Schlup inquiry/ "must dxsk%x
Jall the evidence, old and new';" Id at 327-328. [Biecause a Schlup claim dwok£s
evidence the trial jury did not have before it, the inquiry lrequires the habeas
court to assess how reasonable jurors would react to the "overall", xnewly
supplemented record!. Emphasis added, a Schlup inquiry, requires a holistic j
judgment about "all the evidence“, and its likely effect on reasonable jurors

applying the reasonable doubt standard:;_~:;:.::House v. Bell, 547 U.S. 518, 126 S.Ct`. 2064 (2006).

Page 2.

IV.
ARGUMENT

, First, Applicant djejs'to the trial court's ruling, because the record is
not fully developed, and there are controverted, previously unresolved facts,
that are material to Applicantfs Schlup claim and the la;dic{of?usxrnvkidxr

For example, Applicant argued, that before his trial the SUIB contaminated
the in-court-identification of State witness Beatrice Trevino, with suggestive
and prejudicial post event information. (Note: Ms. Trevino recanted and admitted
mis-identifying applicant, after trial.) The State's response, was that they did
provide Ms. Trevino with the complained post event information, but only did sol
after applicant's trial. See; State's Original Response and Answer, Pg. 5, thnj£
3. The "before" and "after" issue, therein/ was never resolved by the trial court.
Therefore, the trial court could not have adequately and justly enter a ruling, in
regards to a Schlup inquiry.

Additionally, Applicant argued, the‘State mislead the jny with the scientific
testimony of Dr. A.J. Alamia. Specifically, the testimony that conveyed to the jxy
that the 'human memory functions like a camera in traumatic events'. Applicant
submitted credible scientific evidence, that showed, such testimony was misleading
and incorrect. Again, the issue was never resolved.

Applicant objects to the trial court's Findings of Fact, Conclusions of Law/
Recommendation and Order. Based on the habeas resord not being adequate and fully
developed, for a Schlup inquiry. House v. Bell, 126 S.Ct. 2064 (2006).

OLD AND NEW EVIDENCE

 

A Schlup inquiry requires the trial court, consider all the evidence, old and
new. The evidence elicited and presented at trial by the State, consisted of three
eyewitnesses (hereinafter, Ms. Gonzales, Mr. Guerrero and Ms. Trevino), and an

expert on eyewitness identifications (hereinafter, Dr. Alamia). Thegzimmqroxwdjjon

Page 3.

The evidence presented by the defense, consisted of alibi witnesses: Mr.
Acosta, his wife Berta Acosta and their daughter Sabrina Molina.

(A)> At trial, Ms. Gonzales testified, that applicant was one of five
shooters. She stated, that she did not know nor had she ever seen applicant
before. But, that applicant was the shooter that had his face covered with a

bandana and beanie, and she was a hundered percent positive about his "eyes".

(New Evidence)> §i£§t, Applicant.presented Ms. Gonzales' affidavit, therein,
she recants her in-court-identification of the applicant and admits to having
mis-identified him. Additionally, she states, that detective Buenrostro provided
her with information about applilcant being a member of the same gang suspected
responsible for the shooting; Second, ballistic expert Max Scott determined, dim
Ms. Gonzales' version of the shooting was misleading and not true. It.is.skyufhz¥m
to Note, that where the shooters were standing before and during the shooting, was
instrumental and essential to the basis of the opportunity Ms. Gonzales got to view
the alleged shooters faces. Also, the ballistic expert determined, that the store
attendant's (Eolores Martinez) version of the shooting had the most reliability
and accuracy/ based on the'expertlsrinterpetation of the physical evidence. Note:
Mr. Martinez version of the shooting, severely contradicted Ms. Gonzales' version;
on number of weapons, the kind of weapons, number of shooters, number of pequnmxms/
how and where shooting happend, and discription of perpetrators. Ehi£d, :forrnisic
voptometry specialist Dr. Paul Michel_ determined/,that Ms. Gonzales‘ identificationwm
of applicant's "eyes", was 'blatantly invalid'. Fourth, suggestive post event
information can influence and contaminate a witness' memory. According to the
scientific evidence presented. Finally,'hoi[hxmimsckzmifkraxilegal stand point/
it is acknowledge and accepted the the human memory is malliable. And, 75 percent

of all wrongful conviction, are the result of "mistaken eyewitness identifications".

(B)> At trial, Ms. Trevino testified, that Valentin "Cat" Moreno (applicant)
was of of four persons, that left in her nephew's car, and minutes after the car
had left she heard alot of gun shots. She also stated, that applicant had an
assault rifle when he got in the car.

After testifying for the State, Ms. Trevino approached defense counsel
(Richard B. Gould and Norman E. Mclnnis)iwith a troubling disclosure. According
to Ms. Gonzales, sometime before trial, she had confessed to the prosecutor(SoEa

`Arizpe), that she believed she had made a mistaked and misidentified the&q;dd&ym.

Page 4.

And, in response, the prosecutor told her, that she was not making a mistake/
because a witness that had been at the crime scene had stated the same ('had
also identified the applicant'), and two witnesses at two different locations
couldn't be wrong..."

zBased on what Ms. Trevino had told them, the defense attorneys called her
as their first witnesses. Therein, she testified about what she had told the
prosecutor and what the prosecutor had told her in response. At she did not
recant her earlier identification of the applicant.

After the trial, at a motion for new trial hearing, Ms. Trevino recanted
and admitted having mis-identified the applicant.

(New Evidence)> §§£§t, Ms. Trevino's recantation after trial, she stated
that she had confused applicant with Catarino "Cat" Herrera. After testifying
for the State, Ms. Trevino stated that she had told the prosecutor, that she
believed she made a mistake and mis-identified the applicant; "confusing him
with Catarino "Cat" Herrera". And, that in response the prosecutor told her/
that she was not making a mistake, because another witness had stated the same/
and two witnesses couldn't be wrong.“In regards to that,exchange, between witness
and prosecutor, applicant presented scientific evidence on post~event information
and post event misinformation (hereinafter PEI and PEM). Pursuant to that PEI and
PEM scientific evidence, Applicant argued that the state influenced/contaminated
Ms.TbaddFs in-court-identification of him. Second,.Ms, Trevino had testified that
she knew applicant by the nickname "Cat", from her job as a security guard at
PSJA High. Applicant presented, numerous affidavits from classmates, a principle
and a youth probation officer, all of the stating, that applicant was not known
by the nickname Cat. Note: Applicant and Mr. Herrera were bestfriends and break-
dancing partners in middle and high school. And, on numerous occasions dressed
alike. ghird, Applicant has shown that detective Buenrostro had a personal bias
against him. Ms. Trevino that when she gave her statement at the Sheriff's Office,
she initially identified Catarino as Cat. At some point, detective Buenrostro
showed her an individual picture of Applicant, and he became Cat, the suspect.
Fourth, based on dectective Buenrostro's role in this case, today, under Article
38.02. of the Code of criminal Procedure, he wouldn't be allowed in the kiztifkatky1
procedures. Finally, "now" from a scientific and legal stand point, it is achrmlsi§d
and accepted, that the human memory is malliable, especially, to suggestive PEI
and PEM. And, that 75 percent of all'wnxghj_oundcdmns,anathetn§myjof”n&stakénf‘

eyewitnesses".

Page 5.

(C)> At trial, Dr. Alamia testified, that in traumatic events the human msmxy
functions like a camera; 'taking snapshots that stay ingrained in the memory'. In
Closing Arguments, the prosecutor emphasized of Dr. Alamia's scientific testimony
in a way, that bolstered and substantiated the testimonies of the prosecutions key
witnesses.

(New Evidence)> First, the Applicant presented a report from the Innocence
Project, which shows, that 75 percent of DNA exoneration cases, the principle
cause of the erroneous guilty verdict, was “mistaken eyewitness identifications".
Thus, proving the human memory does not work like a camera; Second, research from
the scientific community (forensic psychology and neuroscience), has found that the
human memory does not function like a camera or video recorder. (Note: This Court
acknowledge the scientific community's latest finding and conclusion in these areas
of science in Tillman v. State, 354 S.W.3d 425 (TCCA 2011)(citing, the unanimous
decision, by the New Jersey Supreme Court in New Jersey v. Henderson, 208 N.J. 2081
2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011). In addition to seven experts that U§mifkd
at an evidentiary hearing, the court also considered a 2001 survey of sixty¥four
expertsi The New Jersey opinion, was presented as an exhibit (exhibit A.l) in sq}rmt
of his application and memorandum); ghi£d, an affidavit from psychology professor
Dr. James Aldridge was also presented. According to Dr. Aldridgeis, the scientific
testimony of Dr. Alamia, was 'misleading and incorrect'. Fourth, On September 1/
2013, the Texas Legislature created Article ll.073 of the Code of Criminal anedne.
Mostly, because they acknowlege how incorrect science was responsible for erroneous
guilty verdicts. Additionally, they grasp how science has changed. Today, Dr. Akmda%;
testimony that the human memory works like a camera, would be deem "Junk Science".
Finally, during Applicant's trial, what is know today (an astranomical amount of

data), was not known.
In regards to the foregoing (new evidence), the trial'odii_oiylmdetnafbfkmd§

finding: _

"Dr. Michel and Mr. Scott's affidavits merely challenge the credibility
of the witness Yvonne Gonzales and do not make an affirmative showing

of actual innocence. Similarly, the affidavit provided by Ms.meakB
does not make an affirmative showwing of actual innocence. It merely_
that Ms. Gonzales is no longer as sure as she was at trial of her ident-
ification of Applicant."

Not only does Ms. Gonzales claim drm_she believes the applicant is innocent and she

mistakenly identified him. Two experts, in two different fields, both deterimed that

Page 6.

her trial testimony was misleading, not true and invalid. In a nutshell/ "Ms.
Gonzales is claiming she made a mistake; 'mis-identified applicant'. A ballistic

expert/ is claiming that the ballistic related evidence, shows Ms. Gonzales' trial

testimony was misleading and false. A fda§§jc optemtry expert, finds that WB.CbnEHes'

identification of applicant's "eyes", was 'misleading and invalid'." Applicant
contends, that when all this new evidence is seen together, it raises alot more than
just doubt...

LFurthermore, Applicant add emphasis, that a Schlup inquiry requires the habeas
court to consider "[a]ll the evidence, 'old and new'." The trial court did not some
of the new evidence and none of the old evidence.

OLD EVIDENCE

(a) The store attendant, did not testify, but he provided an eyewitness aoxxnt
to law enforcement, within minutes of the crime. According to Dolores Martinez's
statements/ thre were three guys, only two of them had weapons, other than one shot
fired by the public phone, the shooting occurred as the truck was leaving, the two
shooters were dark complexion and the other guy light complected with blondish hair.
(Note: The applicant is light complected, but his hair has always been black. Also,
according to ballistic expert Max Scott, based on the evidence, this was the best
witness});(b) Ociel '®zzy' Martinez was a suspect two days after the crime. Yet, the
lead detective (Martin Trevino), determinedq that Mr. Martinez was not involved and
was at his home on the night of the crime. (Note: About a year later, Mr. Martinez
in an affidavit alleged, that he was with Jose Garcia and Juanito Trevino when they
committed this crime. Additionally, nine witnesses and Mr. Martinez himself, placed
Mr. Martinez at the "get-together" that the shooters were at, minutes before lamdng
land commiting this crime. Five witnesses, claimed Mr. Martinez got in the car twob&d
in the shooting. Further, Martinez's affidavit states, that the Applicant was not
with them; (c) Numerous witnesses that were present at this Pget-together", U§ijk§
- that the Applicant was not there; (d) According to the store attendant's sister, one

of the detectives, told Mr. Martinez, that he could return to Mexico/ because they
would not need him as_a witness; (e) According to two persons, when they were youths

detective Joseph Buenrostro threatened them into signing false statements against

Page 7

the applicant. (Note: The three witnesses in the primary case, only identified the
applicant after being reinterviewed by detective Buenrostro.);g(f) Mr. and Mrs.
Acosta, their daughter all testified that applicant was at their home/ at the time

this crime occurred.

Applicant contends, that all the evidence he has presented, in the course of
nineteen plus years/ make a prima facie showing of actual innocence. Pursuant to
the foregoingy Applicant respectfully objects to the trial court's Findings of Fact/
Conclusions of Law/ Recommendation and Order.

Additionally, based on the foregoing, the Applicant requests for an evidentiary
hearing, so that the record can be fully developed and adequate for a Schlup dziury.

V;
J]HCDL.NIIGE

Applicant respectfully asks this Honorable Court, to take Judicial Notice, of
the New Jersey Supreme Court decision in the Henderson case. Specifically, the
scientific issues discused there, are at the heart of Applicant's arguments and
claims (e.g., lPost Event Information’ and 'Post Event Mis-Information outamdrmdub
and the human memory not working like a camera.) See; Tillman v. State, 354 S.W.3d
425 (TCCA 2011). 4

VI.
CUNCLUSION

This conviction was obtained through the eyewitness accountsiofl§iu Guerrero/
Yvonne Gonzales and Beatrice Trevino, and eyewitness identification expert Dr. A.J.
Alamia. No other evidence tied Applicant to this crime. Today, it would be held,
that this conviction was obtained with the ?[w]orse" kind of evidence, 'eyewitness
identifications'. Two of the three witnesses mentioned above, have recanted and
admitted having "mis-identified" the Applicant. One of those witnesses, Ms. Trevino
had confessed to the prosecutor months before trial, that she believed she had mis-

identified the Applicant. And, as for Ms. Gonzales, she claims she mis-identified

Page 8.

Applicant's "eyes". An identification of the 'eyes' that an optometry specialist
determined to be invalid. Yet, even with other credible evidence supporting these
two witnesses claim that they made a mistake and mis-identified the applicant, and
with the fact, that mistaken identification account for 75 percent of all wrongful
jrconvictions. And, the strong evidence that shows the scientific testimony of Dr.
Alamia, that was used to "bolster" and "substantiate" the testimonies, vesmmslexirg
and incorrect. The trial court, recommends that applicant's application be dismissed.

Based on all the evidence and arguments, Applicant contends he has shown, that
the [m]ajority of the evidence used to convict him, was misleading and incorrect.
Additionally, Applicant has shown, that this conviction was obtained through many
acts of prosecutorial misconduct and ineffective assistance of counsel. But, more
importantly, Applicant has shown that his casey comes within the 'narrow class of
cases' implicating a fundamental miscarriage of justice ..... the incarceration of
someone (Applicantz who is actually innocent.

For the foregoing reasons, Applicant respectfully objectsato the trial court's
Findings of Fact, Conclusions of Law, Recommendation and Order.

t VII.
PRAYER

WHEREFORE/ PREMISES CONSIDERED, the Applicant respectfully Prays that this most
Honorable Court, accept his objection, herein, and remand the case back to the trial
court: for an evidentiary hearing so the record can be fully developed and a new
Findings of Fact, €onclusion:of;Law, Recommendation and Order. And, for the Court

to grant any other relief deemed just and adequate.

Sigened on this é'{£~ day of W/Me/ ,2015.

Respectfully Submitted/

MM%WQ

Valentin Moreno/ Jr.

Applicant/ Pro Se

788216, Robertson Unit

1207l Fm 3522

Abilene, Texas 79601
Page 9.

§ VERIFICATION{
I, Valentin Moreno/ Jr., hereby declare under the penalty of perjury, that

the statements herein, are true and correct, and offered in good faith.

Sigened on thisM day of § £g/éMz/~, 2015.

Valentin Moreno/ Jr
Applicant, Pro Se

CERTIFICATE OF SERVICE
I, Valentin moreno, Jr., hereby certify that the original copy of Applicant's
Objections to the Trial Court's Finding of Fact, Conclusions of Law, Recommendation
and Order, were sent by U.S. certified Mail, to the Clerk of the Court Of Criminal
Appeals, Austin Texas , and that notice of thesaua was sent to Hon. Michael Morris

via U.S. lst Class Mail.
Done on this é£ day of /@¢/g/néj% , 2015.
MWM@£<

Valentin Moreno, Jr.

Page lO.

