                              No. .   0 8 C: R 3 0 5 I - 8 3 -   I
                       IN THE COURT OF CRIMINAL APPEALS
                             OF THE STATE OF TEXAS
                                                              RECEIVED IN
                                          §        Pet ®OY.W OF CRIMINAL APPEALS
Robert Villanueva
                                          §
vs.

Michell Slaughter,
                                          §
                                                   Respondent        DEC.22 2015
    Judge of Court                        §


                                ·                                Abel Acosta, Clerk
                     Petitioner's Request for Leave to     fil~·


                       his petition for Writ of Mandamus




TO THE HONORABLE JUDGE OF SAID COURT:

      Comes now, Robert Villanueva, petitioner herein, respectfully moves

this Honorable Court for leave to file the attached petition for Writ of

Mandamus.




                                                   Robert Villanueva, Pro Se
                                                   McConnell Unit
                                                   3001 s. Emily Dr.
                                                   Beeville, Trexas 78102




                                         1.·
                              Petition foe Wcit of Mandamus

TO THE HONORABLE JUDGE OF SAID COURT:

       Now comes, Robect Villanueva, heceinaftec known as the petitionee, in
the above styled and numbeced cause, to .request this Honorable Couct gcant
this petition foe Wcit of Mandamus, and would in suppoct theceof show:

                                              :I.
       That the petitionee has attempted to exhaust all State cemidies by
filing a Motion foe Focensic DNA Testing, pucsuant ·;.to Tex. Code od Ccim Pcoc.
Act.   11.073 on the     I Q. ~. day of   Nov       , 2015,   with the tdal Couct in
this cause, cegacding the illegal detention of the petitionee. The DNA test
in this cause would show that the petitionee was not the pecson who committed
this offense, and that the item presented foe testing would cleaely show he
is not the contcibutoc.
                                             II.
       That effective this date ,     De.c. J I ]             ,2015, no action has been
taken on the Motion foe Focensic DNA Testing, noc have the            p~titionec   been
noticed as to any .reason foe the Couct's delay. The petitionee has filed
timely .request foe judicial eeview,·but the tdal Couct ignoced the eequest.
As demonstrated with the statement of facts presented heeein, This Honoeable
Couct will be able to .recognize the intentional diseegaed foe inmate eights
demonstrated by the tcial Couets of Galveston, County, Texas. Petitionee
assects, facts   +h<tt   he filed his motion foe foeensic DNA testing on the          I~ i:b..
day of NoVf?~~ef", 2015. To this date, no .response has been eeceived
fcom the tcial Coucts. The Cleek, the ticla Coucts has a ministerial duty
to .respond to the .request foe judicial .review. Thecefoce, petitionee's
.request that this Honorable Couct gcant his petition foe Wcit of Mandamus
in this cause, and any othec .relief deemed by this Honorable Couct.


                                                       Robect Villanueva, Petitionee

                                  CERTIFICATE OF SERVICE

     The undersigned heceby certifies that a tcue an ~occect copy of the
foregoing was mailed, postage pcepaid, this the 17-:_ day of Dec.. , 2015.
To the Couct of Cciminal Appeals, Austin, Texas .


                                                       Pentionec


                                              2.
                                        I~




                                                   JOHN D. KINARD
                                                   DISTRICT CLERK
                                              GAL VES'IDN COUNTY, ·TEXAS                              I
                                                                                                     .I




GALVESTON OFFICE
600 59th St. Ste. 4001
~ALVESTON, TX 7755+-2338

In Re:        i
              Robert  .
                     V1llanueva - Cause No. 08 -CR-3051-83-l
                I



In the 405th District Court, District Court of Galveston County, Texas.

Dear Mr. Kinard;
        Enclosed is Applicant's motion for Appointment of Counsel, pursuant to
Texas Code of Criminal Procedure, Article ·11.073(1) (d).                   Will you please notify
me of the purposed docketting date using the self addressed stamped envelope
enclosed?
     Thank you for your time and attention in this matter.
                                                            Sincerely,


                                                            ROBERT VILLANUEVA
                                                            1662449
                                                            3001 S. EMILY DR~
                                                            BEEVILLE, TX 78102
                       Signed this day of          Nov J    8~          1 2015




  08- CR -3051
  DCC ORR
  Correspondence
  1131266



  llllllllllll\lllllllllllllllllllllllllll-
                                  Cause No. 08-CR-3051

Robert Villanueva                          §
                                           §
vs.                                        §
                                           §
The State of Texas                         §

                APPLICANTiS REQUEST FOR COUNSEL FOR DNA TESTING

     Comes Now Robert Villanueva, in the above styled cause and motion to this
Honorable Court to request counsel in the matter of untested material evidence,
presented by the State during his September 2010 trial in the 405th District
Court. Pursuant to Texas Code of Criminal Procedure, Article ll.073(l)(d).
     Applicant contends that duriog trial, prosecutor Bill Reed revealed to the
trial court that evidence was missing. (Glass Crack Pipe) In addition,
biological evidence (Hair) found in the victim's right hand, at the time of the
alleged murder, was also not tested in accordance with accepted police and
scientific procedures.
                               STATEMENT OF FACTS
     On July 8, 2015 Applicant received newly discovered evidence from trial
counsel's, co-counsel, attorney Holly Cooper-Roell, that Mr. Cochran confessed
to her, ''the prosecutor did turn over more evidence in the middle of trial. He
told me the month of your conviction that Mr. Reed had evidence secrected
[by him]." Mrs. Roell's [by him], insinuates that this is Mr. Cochran's evidence,
that was secreted. Mrs. Roell added, that she will cooperate with the sentencing
court because "trust me, I have a whole lot more to say." (Exhibit #1)
     Brady v. Maryland, 373 U.S. 83 (1963) requires the prosecution to disclose
any evidence that might be material to guilt, whether or not it is exculpatory.
The State has no duty to   see~   out exculpatory information independtly on the
Applicant's behalf, but once such information comes into State's possession,
then duty and Brady rule attaches. See Palmer v. State, 902 S.W. 2d 561 (Te~.
App. 1st Dist. 1995); Morton v. State, 326 S.W. 3d 634 (Tex. App. 3rd Austin
Dist. 2010)
     Although State photo exhibits, of the missing evidence was entered into
trial, State's expert witness from the DPS Crime· Lab asserted, that she never
received a glass crack pipe for "this case·.." The lab expert also contended that
no DNA testing •,.yas performed on the biological evidence (Hair) found in the
victim's right hand at the time of the murder, that no rquest for 'testing was
                                                           08-CR-3051
                                                           OCRFC
                                                           Request For Counsel
                                                           1131273
                                           1

                                                           Ill I111111111111111111111111111111111111
asked of the evidence by either the Sheriff's Department nor the State. Without
that request no testing would be performed. State prosecutor,- then insinuated,
that because the hair found was black, and the Applicant, has black hair, that
the donor of the hair found in 'the victim's right hand at the time of the
murder, does infact belong to _the Applicant.
     Having no DNA test results available for trial, and the State prosecutor's
line of_questioning to the lab e)cpert, while on the witness stand, placed the
 Applicant in the victim's right hand not only as a party to the offense, but as
 a principal. Exhibit #2 in support of the evidence existing, Exhibit #3 is in
 support that neither the glass pipe or hair was ever subjected to DNA testing
 on the case sumrnary. (Party Information) · 7/22/2015
           II
             KutzneEr v. State, 75 S.W. 3d 427 (T_ex., Cr. App. 2002)' did not decide that
 a defendant must prove his "actual innocence" as a condition to establishing
 his right to DNA testing. See Kutzner, 75 S.W. at 438, 439. Instead, Kutzner
 decided that a defendant proves his right to DNA testing of evidence by showing
 that exculpatory DNA results would establish the defendant's innocence. See
 Blacklock v. State, 235S.W. 3d 232, 233 (Tex Crim. App. 2007)
 · -~--~ • :.ApplicabL.Yillanueva,:::cO.ntends that~.a ~constitutional error assisted in the
,conviction of ''he" who is actually innocent. During trial, alleged co-defendant
 Marcus Shuff refused to testify by pleading his 5th Amendment right to be silent,
 because niether the defense nor the State could question Shuff about Nov. 21,
 2009 video confession of how, why, and when he "soely" planned and executed the
 murder for which the Applicant was on trial for, the video was not allowed to
 be presented to the jury. The defense was also denied an opportunity to properly
 confront and cross examine the lead detective of this case, who conducted that
Nov. 21, 2009 video confession by Shuff. The defense was not allowed to test the               "·
Detectives recollection or to probe into any details of the-video, so that the
jury might judge for itself wheter the detectives testimony was worthy of belief.
     Applicant's EXhibit #4 provides that the Nov. 21, 2009 video confession was
used in trial, one year after Applicant's conviction, presented by the vary same
prosecutor who argued'at the Apllicant's September 2010 trial, not to play the
video.
     Had this video been presented to Applicant's jury, it would have provided
the following facts;
1) That Shuff acted alone during the offense and nobody assisted him in his plot
    to murder the victim.




                                            2
2) No where on the video was the Applicant mentioned as a party or a principal
   to the offense.
3) The video indicates how Shuff's hair presumptively ended up in the victim's
   right hand. (Untested evidence)
4) The video·indicates that Shuff stated he used crack cocaine the night he hit
   Lacy with the bat. (Untested evidence),
 5) Shuff statement of how where, and weapon used was corroberated by three State
    expert witnesses, including where he stated he threw the murder weapon.
      During trial there was no physical evidence of guilt presented by the State
 against the Applicant. Only a theory for which the State clearly corroberated
 was unassailable by presenting a total different theory to convict Marcus Shuff
 in November of 2011, who clearly provided a credible and corroberated video
 confession of what actually happened to the victim. 'To which again, was
 corroberated by three State expert witnesses in both trials. Exhibit #5 in
 support that the State presented two di~rent theories within the two trials.
     'Whether rooted directly in the Due-Process Clause of the Fourteenth
 Amendment or in the Compulsary Proces~, or the Confrontation Clause of. the Sixth
 Amendment. The United States Constitution guatantees criminal petitioner's a
 meaningful opportunity to present a "complete" defense; The Sixth Amendment
 right to present a complete defense· encompasses a petitioner's' right under the
 confrontation clause to Rebut the State's evidence through cross-examination.
·The decision "Law" not to allow favorable evidence to an accused upon request
 and the denial to properly confront and cross-examine the Detective who conducted
 the Nov. 21, 2009 video confession, violated the Applicant's Due Process and
 confrontation rights. Kittleson v. Dretke, 426 F.3d 306 (5th Cir. 2005)
      By denying the Applicant favorable evidence, the trial court significantly
 curtailed the Applicant's ability to properly confront and cross-examine the
 prosecution's most important witness. Lead Det. Sgt. Mark Booner and may well
 have violated the Applicant right to review evidence favorable to an accused
 upon request, where the evidence is material to either guilt or to punishment.
 Brady v. Maryland, 373 U.S. 83, 87 (1963) That right is unquestionably protected
by the Due-Process Clause; See also United States v. Bagley, 473 U.S. 667 (1985);
United States v. Agurs, 427 U.S. 97 (1976). The Brady rule is based on the
requirements
   .
             of Due-Process. It's purpose ..is to ensure that a miscarriage of
                                   ;


justice does not occur. United Stat~s v. Bagley, 473 U.S. at 675 (1985). The
right to confront and cross-examine witnesses and·to ~all witness in one's own




                                       3
behalf have long been recognized as essentials to due process since (1895)
Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct 337, 339-340, 39 L.Ed.
409 (1895). It is implicit in the constitutional right of confrontation, and
helps assures the accuracy of the truth determining process. Dutton v. ,Evans,
400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed 2d. 213 (1970)
     Having excluded All testimony and statements by Shuff during trial, clearly
pt'~Vid~d_.no
            credible evidence showing that at the time of the offense· the
parties were acting together, each contributing some part towards the execution
of their common purpose. See Wooden v. State, 101 S.W. 3d 542, 546 (Tex. App.
Fort Worth 2003). Adding that Marcus Shuff was in the Galveston County Jail,
arrested two days prior, for stealing the victim's car, and was not released
until hours before the morder on Oct. 5, 2007·.
     Had the biological evidence been subjected to proper DNA testing capable
of determining the identily of the donor of the hair found in the victim's
right hand, as Applicant.belive is possible today, and such results excluded
the Applicant as the donor, it is reasonably probable that the Applicant would
not have been prosecuted' or convicted.
                                    PRAYER
                                                                             '
     Applicant prays this Honorable Court grant counsel in the matter of DNA
testing and to determine what action should be taken on the cred;ible allegations
provided by Mrs. Roell which clearly violated Applicant's constitutional rights
of a fair trial.

     Signed this day on _ _ _ _ _ _2015,


                                                            Robert Villanuera
                                                            TDCJ#1662449
                                                            3001 S. Emily Dr.
                                                            Beeville, TX 78102




                                       4
                                                                                          /:f.:; :; :·;~~::~

                                                                                          ~{~ ti~J:
                               Cause No. 08-CR-3051

 THE STATE OF TEXAS                      §                 IN THE DISTRICT COURT OF
                                         §
 VS.·                                    §                 405TH JUDICIAL DISTRICT
                                         §
, ROBERT VILLANUEVA                      §                 GALVESTON COUNTY, TEXAS

                              AFFIDAVIT OF INDIGENCY

        I Robert Villanueva, do certify I am without means to pay these proceed-
 ings and provide the following facts in support:
 1) I am a prisoner within the Texas Department of Criminal Justice and not paid
             '
    for labor.
 2) I hNe no real tangible property to considered as collateral for debt ..
 3) I am not married, nor. do I have any means of viable support.
 4) I have no means to discharge or liabilities.




                                             ~R--=-:~~·  _.._V__,..·~~QN\~~~. . -'1/
                                             Robert Villanueva                  .
                                                                                     ~/I f:5
                                             TDCJ#1662449
                                             3001 S. Emily Dr.
                                             Beeville, TX 78102




                                                                  08-CR-3051
                                                                  DCAFFID
                                                                  Affidavit
                                                                  1131271



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                                 HOLLY COOPER-ROELL

                                      ATTORNEY-AT-LAW
                                      HOLLYCOOPERROELL@YAHOO.COM




                                             July 8, 2015
          TO: Mr. Robert Villanueva                          Hon. M. Slaughter
              TDCJ# 1662449                                  405th Jud. District Court
              3001 S. Emily Dr.                              600 59th Street
              Beeville, Texas 78102                          Galveston, Texas 77551


           RE: Please give post conviction relief to Case# 08.,.. ~~- 1o52




          Dear Sir:      i
          As you know I once represented you as we were friends in the Clear
          Lake area. Your fainily has contacted my law office ahd asked me to
          return their.call, btit I made a decision not to. I know that you were NOT
          granted a fair trial. I now rethember and know many details regarding
          Mr. Cochrans' representation of you at trial. He told me in confidence
          the prosecutor did tum over more evidence in the middle of trial. He told
          me the month of your conviction that Mr. Reed had evidence secreted[by
          him] I guess , is what you call it. I believe under the Mortenson bill that
          neither the DA who tried the case or Mr. Cochran has immunity. I
          sincerely hope the Judge appoints you new counsel and removes Mr..
          Martin as I heard he used to office with Mr. Cochran so how fair is that?
          I haYe heard about 1'.x.ro years ago that "maddog' has g~:m.e free and
          continues to make the citizens in the area of Bacliff concerned[ more
          later about that]. The Chief M.E. who testified for the State has since
          been released from his job with allegations. Mr. Cochran fell in love
          with the investigator that was part of the retainer fee paid by your mother
          and had his own obsessions the week of your trial. I will cooperate with
          the sentencing court because trust me I have a whole lot more to say.

          SIGNED:        ci6~ C'J rz~
21 27 BROADWAY
GALVESTON, TX. 77550
409.763.2454X22
FAX[409.763:4309]
ANGLETON OFFC. 979.583.8165
