Texas Court of Criminal Appeals 4 33 l 'w’ol

Abel Acosta, Clerk
P.O. Box 12308, Capital Station
Austin, Tx. 78711

MAY 8, 2015

RE: Filing Applicant's rebuttal to the State's answer to his application

for Writ of Habeas Corpus in cause No. 11-CR:2803-H

Dear Clerk,
Please file the applicant's rebuttal to the State's answer with
his application for Writ of Habeas Corpus so it may be presented to

the court.

Respectfully,

Orlando Reyes
TDCJ-ID # 1796916
Mark W. Stiles Unit
3060 F.M. 3514
Beaumont, Tx. 77705

RECENED.\N

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MAV 15 2015

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IN THE
TEXAS COURT Of CRIMINAL APPEALS

AUSTIN, TEXAS

FROM THE 347th DISTRICT COURT
NUECES COUNTY, TEXAS

TRIAL No. 13-12-00468-CR
CAUSE No. llFCR-2803-H

EX PARTE
ORLANDO REYES
# 1796916

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APPLICANT'S REBUTTAL TO STATE'S

ANSWER TO APPLICATION FOR HABEAS CORPUS

To The Honorable Judges of Said Court;

Comes now Orlando Reyes Pro-se Applicant in the aboved numbered cause

and files his Rebuttal to the State's answer to his application for

Writ of Habeas Corpus and will show in support Thereof the following:

1.

The State would claim that the applicant is confused about the'
evidence contained within the record. Elizabeth Williams stated
quite clearly that she did a urinalysis on the victim and that

the ViCtim did not have any Bladder infection or Dysuria.

See: Cross-examination of Elizabeth Williams by defense counsel.

(RR. v. 3, pp. 63)

Q. Were you able to detect whether or not she
had a bladder infection?v
A. Her urine was clean.

ln fact, the State attempted to keep out not only page five of

'the Same report which they knew to be contradictory to the Labs¢

done at Driscoll Children's Hospital that Same night as the SANE

exam. But, the ED report notes which were in fact made by Elizabeth

Williams and Leticia Castenada.

(1)

Mr. Garicia: ln the examination done by the refering
' ,physician they found Dysuria.
Ms. Gonzales: Your Honor l object to anything not
in evidence.
These records were in fact in evidence and part of the complete SANE
Record. The State would have this Court believe the applicant was
confused but, the State was in fact attempting to Withhold evidence
contradictory to it's version of the facts. That the pain was caused
by the alleged assault and not dysuria. However, the evidence the
State so strenously objects to not only contradicts it's version of
the facts but, Elizabeth Williams testimony as well. see: (RR.v.3,pp.73)
Q. Did you do any examination that would
find or detect dysuria during your SANE
exam?
A. Yes sir.
Q. And those findings were what?
A Negative.
Ms. Williams clearly makes false Statements throughout her testimony
that extends to her first claiming that she discharged the victim but
did not admit her. To then claiming she had no knowledge the victim
was even admitted to the hospital.
Q. Do you know if she was even admitted to
Drscoll Children's Hospital?
A. l did not admit her. l discharged her.
Q. Did you know she was admitted on or about
the same date?
A. l,do not.
Ms. Williams statements would be akin to the driver of an automobile
sitting at an intersection and claiming to have no idea how she got
there or what the color of the traffic lights were. The Applicant
clearly shows that the State withheld exculpatory evidence and that
Ms. Williams testimony is false. This evidence goes directly to the

`credibility of one of the State's key witnesses see: Graves v. Dretke,

442 F. 3d. 334 (Sth cir. 2006>

(2)

" Brady applies equally to evidence relevant to

the credibility of a key witness in the State' s

case against the defendant. "
The State also claims that the applicant was specifically identified
as the assailant, The facts clearly show that different people were
alleged to have committed the assualt on the victim including, the
sister's of the victim's mother, 24 year old boyfriend. The boyfriend'
of the sister-in-law and " Guero " (AKA Adam Rivera). ln fact she
clearly identifies Guero as the person who touched her. Knows that

Guero is a different person than tha applicant. (RR. v. 3, pp. 96-97)

Q. Do you know who Orlando is?
A. Yes, That used to be my Grandmother' s
boyfriend.

see Also: Cross-examination of Monica Soliz (RR. v. 3, pp. 182)

Q. Guero is your brother right?

A. Yes.

Q. Do you think it is suprising that she chose
the name Guero and not Craig, or Mark or
Anthony and specifically said "Guero" had
touched her?

A. Yes.

see Also: Cross-examination of Carmen Rodriguez (RR. v. 3, pp. 196)

Q. Do you know Monica Soliz?
A. Yes Sir.

Q. Guero is her brother right?
A. Yes sir.

And (RR. v. 3, pp. 200-201)

Q. Diamond has known Guero all her life?

A. Yes.

Q. Did you know that your daughter Diamond,
is saying Guero touched her?

A. No.

The State claims that Adam Rivera was in Jail at the time of the

assualt, but no definitive date was ever established as to when the

assualt happened. see: Cross-examination of Monica Soliz (RR. v. 3,pp. 184)
Q. Do you know when she says this incident took

place?

A. No.
Q. lSo when she gave this outcry, she did not
tell you how far back it happened, did she?

(3)

A. Just told me it happened. _
Q. She did not tell you how far back it

-- happened, did she?
A. l did not ask her.
This is clearly contrary to the evidence the State claims supports
the applicant's conviction, ln fact, this evidence that a man named’
Guero touched the victim, That Guero is the brother of Monica Soliz,
the person that claims that it W@S the applicant WhO aSSaulted her
niece. And that no time or date was ever established as to the alleged
assault as the State claims,is evidence that is more than sufficient
to provide reasonable doubt that the applicant committed the offense.
see: Zuniga v. State, 144 S.W. 3d. 477 (Tex. Crim. App. 2004)
" Contrary evidence in a criminal case does not
have to outweigh evidence of guilt but has to
be only ehough to provide reasonable doubt. lf
however, contrary evidence does outweigh evidence
supporting the verdict, then the beyond a
reasonable doubt standard has not been met by
the State. "
The evidence and facts in the record are clearly contrary to what the
State alleges and the applicant's conviction is a constitutional
violation, since any conviction in which the State fails to prove
every essential element of the offense is a violation of Due Process

guaranteed by the 14th Amendment of the United States constitution.

The state claims that the trial court found his enhancement paragraphs

to be true after he entered pleas of "not true" and that the record
Supports the State's claim on what they allege to be page 63 volume 5
of the reporter's record. However, the applicant does possess a copy
of his appellate record and the reporter's record clearly ends on page
ii62" of volume 5. see: (Exhibit Appendix). No record exists of such a
finding by the trial court and if such a finding does exist in the
State's records then it is clear from the exhibit that the record the

applicant possesses has been altered. This is clear misconduct by the

State and it's agents and violates not only Texas Statutes, but the
applicant'S right to a fair trial pnzmant to the oth Amendment and

(4)

his right to due process pursuant to the 14th Amendment._see: Tex.
Penal Code 37. 10 (a) (1)
" A person commits Tampering with a governmental
record if he: knowingly makes a false entry"or
false alteration of a governmental record.
see Also: Penal Code 37. 10. 2 (a)
" An offense under this section is a felony of
the third degree if it is shown that the record

is used for the purpose of determining the
connection or relevance in a criminal action.

n
The State also claims that the trial court's decisions to admit evidence
areunassailable on HID&S review. Clearly the State has become confused
as to the provisions of both the Texas Constitution and the United
States Constitution. lf the State was correct in this assertation,

no abuse of discretion standard would even exist as determined by the
United States Supreme Court and this Honorable court. Any evidence
admitted by the trial court in which probative value is substantially
outweighed by unfair predjudice is an irrational act by the trial

court and a violation of the applicant's right to due process. To

allow a video that shows the applicant wearing orange jail coveralls,
chained to a wall and has no evidentiary value, no statement of guilt,
or confession, clearly falls under the 14th Amendment of the United
States constitution. see: Freeman v. State, 230 S.W. 3d. 392 (Tex.

Crim. App. 2007)

" lf the appellateu record reveals criteria

reasonably conductive to a risk that the
probative value is substantially outweighed

by unfair prejudice, then the trial court acted
irrationally in admitting the evidence, abusing
it's discretion. "

Therefore the applicant asserts that such an error resulted in a
violation of the applicant's substantial rights. Any evidence admitted
by the trial court that was clearly intended to cause the applicant

prejudice. And had an injurious effect on the jury's verdict and

such a conviction cannot be allowed to stand. see: King v. State,

(5)

953 S.W. 2d. 266, 271 (Tex. Crim. App. 1997); citingl&nieakos\h Unitai
~States, 328 U.S. 750, 776 S.Ct; 1239, 90 L.Ed 1557 (1946)
o A substantial right is affected when the error had a
substantial and injurious effect or influence on the
jury's verdict. "

. The State would claim that the applicant recieved effective assistance of counsel
and that the applicant's trial and appellate counsel's performance was not deficient.
§§y_constitutionally effective trial counsel would have known to either file a
pre-trial motion to suppress such a prejudicial video showing the applicant in
Jail clothes and chained to the wall being interogated; or object to such evidence
and request a hearing out of the presence of the jury. By failing to do so, trial`
counsel's performance met both prongs of Strickland. Counsel's performance was
deficient. And it prejudiced the applicant. The State also conviently fails to

address trial counsel's failure to call the admitting and refering physician of the
victim to Elizabeth Williams,in order to refute Ms. Williams testimony that the
victim did not have Dysuria, as well as the State's assertation that the victim's
pain was caused by assualt and not Dysuria. Had trial counsel had the physician
testify as to her own diagnosis. lt would have clearly supported the evidence that
trial counsel possessed. The victim_di§_have Dysuria and it, not any alleged assualt
by the applicant was the source of her pain. This was credible, qualified medical
testimony that would have controverted Elizabeth Williams testimony and the State's '
version of the facts. Failure to introduce credible controverting expert testimony
is ineffective assistance. see: Hartfield v. Quarterman, 603 F. Supp. 2d. 943

' (2009) Tex.

" Failure to present controverting expert testimony known
to counsel is deficient performance. "

Applicant's appellate counsel was also ineffective in failing to/present claims
that rose to the level of constitutional violations and as a result prejudiced
the applicant. Had appellate counsel presented claims of the trial court's abuse!s~

of discretion. And the State's withholding of exculpatory evidence, there is a

reasonable probability that the outcome would have been different. see: Young v.

(6')

Dretke, 356 F. 3d. 616 (5th Cir. 2004)
" That as'a result of counsel's deficient performance there

was a reasonable probability the outcome may have been
different. "

CONCLUSION
The State would have this Honorable court believe that none of the several con-
stitutional violations asserted by the applicant in his Habeas claim_are assailable.
The State is clearly confused on this point, since both the Texas and United States
constitutions will not allow a conviction that is a result of such violations to
stand. Therefore the assertations made by the State are incorrect and as a result
the applicant requests this Honorable court grant him relief through Writ of Habeas

Corpus.

PRAYER FOR RELlEF
Wherefore premise having been considered the applicant prays that this Honorable
Court grant him relief through his application for Writ of Habeas Corpus and any
other relief to which he is entitled.

Respectfully Submitted,

Orlando Reyes
TDCJ-ID # 1796916
Mark W. Stiles Unit
3060 F.M. 3514
Beaumont, Tx. 77705

DECLARATION
l hearby declare under penalty of perjury the foregoing is true and correct.
Executed on this 8th day of May, 2015.

Duly Sworn,

Orlando*Reyes
TDCJ-ID # 1796916

(7)

APPEND lX

1. Page 62 of Reporter's Record Volume 5. (End of volume, Clerk'S Declaration)

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62

 

 

there's any other way to protect the community from a

'man who is going to continuously break the law and

continuously put everyone in the community in danger,
from little girls to people who could be in the
building that he decides to burn down because he's
high. 'That's where we're at.
THE COURT: Thank you. Let me take a
recess and see you back here at 1:15. All right?
Thank you.

(Recess)

(Myra Haney, Official Court Reporter for
the 347th District Court, took the following

sentencing.)

 

CYNTHIA.MOTAL, CSR, RPR

 

 

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THE sTATE oF TEXAS )
COUNTY OF NUECES )

I, Myra G. Haney, Official Reporter in and
for the 347th Judicial District Court of Nueces
County, State of Texas, do hereby certify that the
above and foregoing contains a true and correct
transcription of all evidence and other proceedings
requested in writing by counsel for the parties to be
included in this volume of the Reporter's Record, in
the above-styled and numbered cause, all of which
occurred in open court or in chambers and were
reported by me.

I further certify that this Reporter's Record
of the proceedings truly and correctly reflects the
exhibits, if any, admitted by the respective parties.

I further certify that the total cost for the
preparation of this Reporter's Record is $

and was paid by

 

WITNESS MY OFFICIAL HAND this the day

Of , A.D. 2012.

 

MYRA G. HANEY, RPR, CSR #2874
Expiration Date:12/31/13
Offi§ial Reporter

347t District Court

vNueces County, Texas

901 Leopard, Room 802

Corpus Christi, Texas 78401

 

MYRA G. HANEY, CSR, RPR

 

 

