                                                                                                WR-62,593-04
                                                                                COURT OF CRIMINAL APPEALS
                                                                                                 AUSTIN, TEXAS
                                                                                Transmitted 8/25/2015 4:25:50 AM
                                                                                  Accepted 8/25/2015 8:06:00 AM
                                          NO. 762351                                              ABEL ACOSTA
                                                                                                          CLERK
                                         NO. 62,593-04
                                                                                 RECEIVED
                                                                         COURT OF CRIMINAL APPEALS
EX PARTE                                        §                 IN             8/25/2015
                                                                      THE 232ND JUDICIAL
                                                                            ABEL ACOSTA, CLERK
                                                §                 DISTRICT COURT OF
                                                §                 HARRIS COUNTY, TEXAS
                                                §
                                                §                  AND
                                                §
                                                §                  THE TEXAS COURT OF
BERNARDO ADAN TERCERO                           §                  CRIMINAL APPEALS

          APPLICANT BERNARDO TERCERO’S REPLY TO THE STATE’S
        “MOTION TO DISMISS APPLICANT’S SUBSEQUENT APPLICATION
               FOR WRIT OF HABEAS CORPUS AND MOTION TO
                 DENY REQUEST FOR STAY OF EXECUTION”

       COMES NOW Applicant, Bernardo Adan Tercero, by and through his pro-bono counsel,

Walter C. Long, and pursuant to the provisions of Article 11.071, Vernon's Ann. C.C.P., presents

this his Reply to “Respondent’s Motion to Dismiss Applicant’s Subsequent Application for Writ of

Habeas Corpus and Motion to Deny Request for Stay of Execution,” and as grounds therefore, would

respectfully show this Honorable Court the following:

       The Respondent, State of Texas, answered Mr. Tercero’s application for habeas corpus with

two assertions: (1) Mr. Tercero does not satisfy the subsequent application requirements of Article

11.071, Section 5; and/or (2) Mr. Tercero has presented grounds for relief that are without merit.

Respondent’s Motion to Dismiss at 1-2 [hereinafter “Motion”]. On the basis of these two assertions,

the State asks this Court to dismiss Mr. Tercero’s application and deny his motion for a stay of

execution. Id. The State is mistaken.

       1. The State errs in asserting that Mr. Tercero has not satisfied the
       requirements of Article 11.071 §5.

       The State does not contest that in Ex parte Chavez this Court held that the unknowing false
testimony standard in Chabot v. State is new law with respect to any applicant who has not filed an

application after Chabot. Mr. Tercero is clearly within the school of applicants for whom Chabot

is new law according to Chavez. Chabot v. State, 300 S.W.3d 768 (Tex. Crim. App. Dec. 9, 2009);

Ex parte Chavez, 371 S.W.3d 200, 207-08 (Tex. Crim. App. 2012). Instead, the State’s argument that

this should not be an authorized subsequent application is all about factual unavailability, which is

not a ground that Mr. Tercero is arguing.

       The State thus asserts that Mr. Tercero provides “no reasonable explanation for the dilatory

urging of the instant ground for relief” when “the factual basis for the instant claim was available

when the applicant filed his 2008 subsequent state habeas application.” Motion at 6. The State

confuses the two “availability” prongs of Section 5 (a) (1). Mr. Tercero is relying upon the legal, not

factual, unavailability prong. In 2000, when Mr. Tercero’s trial investigator interviewed Ms. Cotera,

shortly after trial, and she told him that she had given some false testimony, there was no legal basis

upon which appellate or state habeas counsel could have raised a claim based upon her false

testimony alone. That basis did not arise until Chabot first recognized that false testimony—whether

known or unknown to the State—violates due process. Mr. Tercero’s point is that, no matter how

long the fact that Ms. Cotera testified falsely had been known, there was no vehicle for Mr. Tercero

to use that fact to object on due process grounds until Chabot, which was issued a year and a half

after the filing of Mr. Tercero’s most recent prior state habeas application.

       Mr. Tercero is raising a Chabot, not Napue, claim. Napue v. Untied States, 360 U.S. 264

(1959). The Vargas memo, providing some information in 2000 that Cotera testified falsely, does

not establish all of the elements needed to plead a Napue claim, because it discloses no evidence that




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the prosecutor Sally Ring or any of her agents knew that Ms. Cotera was testifying falsely.1

Reasonably, they could not have known unless they literally invented some of Cotera’s testimony,

because Cotera’s testimony exclusively had to do with things she alleged Mr. Tercero said to her in

her presence alone.

         It is clear from the Vargas memo that the prosecutor’s behavior with Ms. Cotera, if true, may

have contributed to her presentation of false testimony. Additionally, the odd circumstance of Ms.

Cotera’s recruitment as a witness by Ms. Ring herself, during trial, only days before Cotera is put

on the stand, suggests that the State was aware of the weakness of its circumstantial evidence case

that Mr. Tercero shot Mr. Berger with the intent to kill him. The behavior suggests overreaching in

order to protect a threatened conviction. However, there is no evidence to this day that Ms. Ring

knew that she was creating false testimony and, thus, establishing a Napue violation.

         The State argues as though it would like to defeat Mr. Tercero’s attempt to obtain jurisdiction

through the new legal basis in Chabot now, by having Ms. Ring supply the missing Napue element,

confessing that she did know Cotera testified falsely. Should this Court have any doubt about

whether the prosecutor was ignorant of Ms. Cotera’s false testimony it should stay Mr. Tercero’s

execution date and remand the case to the trial court for fact finding.2


         1
            According to the Vargas memo, Ms. Cotera alleged that the prosecutor told her to “say that Bernardo had
killed for pleasure,” but she did not testify to that in court. She said that the prosecutor told her not to talk about the
allegation that they had made when they first met her—that Tercero had accused her of keeping the gun and some
money. She stated that her false testimony about Mr. Tercero saying that he killed because there was a child witness
was the product of her feeling afraid and threatened by the State, denying that the prosecutor had asked her to make
that statement “precisely.” Application Exhibit 3 (Rudy Vargas, Supplemental Report #2, at 5-6).
         2
           Nothing remotely was said about an “imminent Brady claim” in the Suggestion. Motion at 7. To the
contrary, Mr. Tercero said Cotera accused the prosecutors of misconduct in the Vargas memo, that he was “not
raising a claim here, but wishe[d] the Court and the Harris County District Attorney’s Office to know of Ms. Cotera’s
statement, because it [was] very concerning.” Suggestion at 9 n.8. It is very concerning to think that the Harris
County District Attorney’s office would let Mr. Tercero be executed while a serious question exists whether its
agents might have generated false testimony in a State’s witness, even inadvertently or unknowingly.

                                                             3
       2. The State mischaracterizes Ms. Cotera as an inconsistent witness.

       The State alleges that, in her current affidavit, Ms. Cotera now blames rage that she felt

against Mr. Tercero, rather than any State “misconduct,” for her false testimony, as though she has

changed her story and is an vacillating witness. Motion at 7-8 (citing Ex parte Harleston, 431

S.W.3d 67, 89 (Tex. Crim. App. 2014)). The State cherry picks, privileging para. 8 of Ms. Cotera’s

affidavit over the prior paragraphs (6 and 7) in which Ms. Cotera talks about the lie told her by the

prosecutors — that Mr. Tercero accused her of keeping money from the robbery and the pistol —

causing her to be very afraid of prosecution, jail, and deportation, as well as causing her to be

enraged at Mr. Tercero because she believed the State’s lie. This is completely consistent with the

Vargas memo which also portrays her as fearful of the State and upset with Mr. Tercero.

       3. Mr. Tercero has presented a meritorious claim.

       Mr. Tercero has pled a claim which, if taken as true, entitles him to relief from his conviction

and/or sentence. The centrality of Ms. Cotera’s false testimony to the State’s proof of intent to kill

cannot be debated. Only Cotera provided (false) testimony that Mr. Tercero intended to kill to

eliminate witnesses. Otherwise, no one testified that they saw Tercero aim or point his gun at anyone.

The gun came into view in the struggle between Mr. Tercero and Mr. Berger that the most

conservative witness, Ms. Johnson, said lasted a full minute, which is a long time. 16 SF 247. Ms.

Johnson corroborated Mr. Tercero’s testimony that he and Berger tussled face to face. Id.; 19 SF 60;

see Motion at 9.

       Presumably, if Mr. Tercero had aggressed initially against Mr. Berger while also wanting him

dead, he would have out-and-out shot Mr. Berger rather than tried to push him in the direction of the

door. Mr. Tercero’s surprise at seeing Berger in the store and aggression toward him, Motion at 9


                                                  4
(surprise; going to other side of the counter); id at 10 (Alberty and Johnson talking about Tercero

as aggressor), reflect a startled robber, not necessarily a murderer.

        The State found itself reduced to a gunshot wound angle arising in the midst of a two person

melee as the basis for intent to kill. No one saw Mr. Tercero take any additional shots at Berger or

anyone else; the additional live rounds on the floor possibly having been dropped from a racked gun

or Mr. Tercero’s pocket prior to or during the melee.

        The State’s case for specific intent to kill was not supported by an “abundance of evidence”

at all. Motion at 10 (citing Ex parte Weinstein, 421 S.W.3d 656, 667-68 (Tex. Crim. App. 2014)).

That probably is why the State reached out to interrogate Ms. Cotera during the trial and shored up

its weak evidence with her alleged admissions by Mr. Tercero regarding his mens rea at the time of

the offense. The weakness of the State’s case is why the State relied on Cotera to argue no less than

seven times that “guns don’t accidentally go off during a robbery. Guns are used to eliminate

witnesses during a robbery.” 20 SF 52, 53, 55, 59, 60, 66, and 67. Of course, guns accidentally go

off during robberies. Absent Cotera’s “untouched” (20 SF 65-66) testimony, that plausibly happened

in the instant case.




                                                  5
       WHEREFORE, PREMISES CONSIDERED, Mr. Tercero respectfully requests that this

Court grant his motion for stay of execution, find that his application has met the requirements of

Section 5 (a) (1) of Article 11.071, Texas Code of Criminal Procedure, grant review of the

application and remand it to the trial court for an evidentiary hearing on the claim that the State

unknowingly presented false testimony, and ultimately grant Mr. Tercero relief from his conviction

and sentence.

                                                      Respectfully submitted,



                                                      /s/ Walter C. Long
                                                      WALTER C. LONG

                                                      Walter C. Long
                                                      Texas Bar No. 24002491
                                                      P.O. Box 41557
                                                      Austin, Texas 78704
                                                      512-912-0722 (office phone/fax)
                                                      512-554-2269 (cell phone)
                                                      waltlong@aol.com




                                  CERTIFICATE OF SERVICE

        I, Walter C. Long, do hereby certify that a true and correct copy of the foregoing document
has been served by electronic means on this, the 25th day of August, 2015, to the office of Assistant
District Attorney Josh Reiss, Harris County District Attorney’s Office, 1201 Franklin Street #600,
Houston, Texas 77002, and also by email at reiss_josh@dao.hctx.net.


                                                      /s/ Walter C. Long
                                                      Walter C. Long


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