`September ll, 2015

, _ :, *, _ Valentin Moreno/ Jr.
Abel Acosta, Clerk ~ ' 1 788216, Robertson Unit
- . ., ~ 12071 FM 3522
Court of Criminal Appeals Abile Texas 79601
P,o.'Box 12308 4 . ne'
Capitol Station _ ' `

Austion, '_I‘exas_ . ‘ _ _ _ ' v ~ n v E(MF!\[ _D{N

~-r~

Re: Your Letter Dated (O9-Ol-15) & Refiling ' fFLhQF(-=,`"M“*L AD“EALS
Last)known Writ No. WR-49/474-O4
go 18 Z§§€i'§}

Greetings Mr. Acosta:

On June 15, 2015, I filed an application for writ of habeasé` rpusJ”anthe
332nd District Court of Hidalgo County, Texas. The cause ndmb& `th§§'ein,U was
CR-0517- 96- F(3). On July 20, 2015, Judge Mario E. Ramirez, Jr., entered his
Findings of Facts, Conclusions of Law, Recommendation and Order. I then filed
in this Court, Applicant' s Objections and Applicant' s Request for Judicial
Notice. However, these pleadings were all sent back by you, with a letter
advising me, that my application had not been received by your office. Your
letter further advised me to contact the Hidalgo County District Clerk, with

any questions I may have.

It is my understanding, that at this time, the mentioned application was sent
and received by your office and filed on September 2, 2015. It appears that,
the mentioned application was received by your office, a day after you sent
me the mentioned letter. /,

Enclosed you will find the following pleadings: Applicat‘s Motion for Remand
for an Evidentiary Hearing, Applicant's Reguest for Judicial Notice and the
Applicant's Objections to the State's Response. all to be filed with the
current application for writ of habeas corpus, and brought to the attention
of the Court, as time permits. '

In the enclosed, self-addressed stampted envelope, please return to me a
stampted filed copy of this cover-letter.

Thank you for your attention and assistance.

Respectfully,

Q//¢/M /%,W

cc flle

 

EX PARTE

vALENTIN MORENO, JR .

APPLICANT

IN THE COURT OF CRIMINAL APPEALS

AUSTIN/ TEXAS

Writ NO.
Out of the 332nd District Court/

Cause No. CR-0517*96-F

¢O'>¢&’>¢O°W>¢O'>

Hidalgo County/\TEXAS

APPLICANT'S REQUEST FOR
JUDICIAL NOTICE

 

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW, Valentin MOreno, Jr., Applicant pro Se/ in the above referenced

cause, and respectfully files this Applicant's Request for Judicial Notice. In

support thereof/ the applicant would show the following:

`I.

Pursuant to Rule (c), (d), and (e) of the Texas Rules of Evidence, Applicant

respectfully requests the Court take Judicial Notice.

II.

(l) On March 3, 1997, Applicant was convicted by a jury of the offense of

capital murder and sentenced to life imprisonment.

(2) On June 151 2015, Applicant filed his third application for writ of hdxss
corpus (hereinafter, cited as AA-3), under Articles ll.O7 and 11.073 of the

Code of Criminal Procedure.

(3) The State filed their Response to AA-3 and the state's Findings of Fact[

Conclusions of Law, Recommendation and Order on July 81 2015. Applicant

did not recieve a copy of those pleadings, till July 21, 2015.

(4) Applicant has been informed that, 332nd District Court Judge Mario E. Ramirez,

Jr., adopted the State's proposed Findings of Fact, Conclusions of Law,

Recommendation and Order

Page l.

III.

Comes now Applicant, arguing that the State is attempting to mislead dds
Court, with false statements. Additionally,_the State has elected to ignore
and not respond, to Applicant's claims submitted under Article ll.O73 and
this Courts ruling in Ex Parte Robbins, 2014 Tex. Crim. App. LEXIS 1900.
Furthermore, Applicant would bear emphasis that, the State's Response has
admitted and conceded THAT, Applicant meets the provisions set forth in art.
ll.O73, and that the State did engage in prosecutorial misconduct. Based on

the foregoing, Applicant respectfully asks this Court to take Judicial Notice.

IV.
ARGUMENT

IN AA~3, Applicant argued that, the State influenced and/or contaminated
the in-court-identification of a "critical" state witness: Beatrice Trevino
(hereinafter, Ms. Trevino), with unduly suggestive post-event information and
post-event misinformation, (hereinafter, PEI & PEM).

The essence of Applicant's argument in AA-3, is based on what Ms. Trevino
alleged, at applicant's trial, after testifying for the State. According to
Ms. Trevino, [b]efore applicant's trial, she confessed to the lead pnr£cmrr
(Sofia Arizpe), that she believed she had mis-identified the applicant. In
response, the prosecutor tells Ms. Trevino that, she is not making a mistake
because another witness has also identified the applicant and two witness
couldn't be wrong. [See Exhibit A,'Pages l3, 19-& 20, attached hereto.]

In regards to this argument, the State's response alleges:

[T]his claim has been litigated on direct appeal adversely to applicant.
Further, the only "new" aspect of this claim is that the witness was '
influenced by some post event information. However, the post event
information applicant complains of was only provided to the witness
after she testified in his trial. The State contends this could not

have influenced her testimony. [See Exhibit B, "State's Re@onse", Rg. 5,
ExmirtelL attmi£dlrzetoJ

Page 2.

First, Applicant would shed light and substantiate his position on this
"before" and "after" debate. Applicant is supporting his argument that, the
State influenced Ms. Trevino's identification with PEI and PEM, with "Ms.
Trevino's testimony from applicant's trial." The "[o]nly" way that, Ms.
Trevino could have testified about what occurred between her and the lead
prosecutor, [d]uring applicant's trial, the 'incident between her and the
prosecutor had to have occurred "[b]efore“ applicant's trial. [See Exhibit
A, "Beatrice Trevino's Trial Testimony", Pg.l3, 19 § 20.]

Second, Applicant contends that, when the above "before" and "after"
issue in controversy is resolved, the aftermath is an admission by the State
that, "the State 'did' influence Ms.'Trevino with the PEI applicant complains
about." [See Exhibit B, "State's Response“, Pg.5, Footnote 3.1

Third, Applicant contends that, Hidalgo County Assistant District AUIxney
Michael W. Morris has violated State Bar Rule 3;03 (a)(l) & (5), by knowingly
and intentionally attempting to defruad‘this Court, with a false statement.
The trial court record is clear, the incident where Ms. Trevino was exposed
to suggestive PEI, occurred "before" applicant's trial. Mr. Morris in the
State's response, attempts to deceive this Court with a false statement and
mis representation of the facts, solely to cover-up a serious act of
prosecutorial misconduct. For the foregoing reasons, applicant respectfully

requests for a hearing and sanctionsq as per T.R.A.P 52.11.

V .
ARGUMENT

In AA-3, Applicant argued that, the State presented the false scientific
testimony of Dr. A.J. Alamia (hereinafter, Dr. Alamia), and that the State

relied on Dr. Alamia's false testimony at trial. The essence of this anyn€nt

Page 3.

was argued by Applicant in 'two' ways. First, under an actual innocence
claim, under Schlup v. Delo, 513 U.S. 298, 315 (315). Applicant alleged
that the State_presented and obtained the primary conviction, with the false
scientific testimony of Dr. Alamia. A constitutional violation that, resulted
vin the conviction of one who is innocent. Second, sought habeas relief under
the newly enacted Article 11.073, of the Code of Crim. prod. In said article
it states in part: (a) This article applies to relevant scientific ewdizrs'drm:
(2) contradicts scientific evidence relied on by the State at trial.
lhrough Dr. alamia's scientific testimony, the State led the jury to
believe that, in traumatic event the human memory functions like a camera. In
the State's closing arguments, the State emphasized on Dr. Alamia's analogy
that the human memory works like a camera, to bolster the trial testimonies
of the State's other "key" witnesses.
In support of his arguments in AA-3, Applicant submitted an affidavit
from psychology professor Dr. James Aldridge. According to Dr. Aldridge, the
human memory does "[n]ot" function like a camera, and the scientific trial
testimony of Dr. Alamia was misleading and false. [See Exhibit C, “Dr. James
Aldridge's Affidavit, attachered hereto.] Additionally, in support of Dr.
Aldridge's affidavit, Applicant alse submitted a report from the Innocence
Project and a 2012 unanimous decision by the New Jersey Supreme Court (state
v. Larry R. Henderson).
In regards to this argument, the State's Response alleges:
[A]pplicant supports the claim that this witness provided "false"
testimony by way of an opinion provided by another expert. As such,
this is more properly a battle of experts rather than "false"
l testimony. [See Exhibit B, state's Response",pg.S, Exmzrte 2.]
First, Applicant did not only present the opinion of another expert (Dr.

Aldridge). In support of that argument, and inconjuction of dr. Aldridge's

affidavit, Applicant presented data from the Innocence Project. Said data

Page 4..

VERIFICATION

I, Valentin Moreno, Jr., hereby declare under the penalty of perjury, that
the contents in the foregoing motion are true and correct.

Done on this day of , 2015.

 

Valentin Moreno, Jr.

CERTFICATE OF SERVICE

I, Valentin Moreno, Jr., hereby certify that the original copy of applicant's
request for Judicial Notice, was sent by U.S. Mail to the Clerk of the Court
of Criminal Appeals, and a copy sent to hidalgo county District Clerk and
hidaldgo county assistant district attorney Michael W. Morris.

Done on this day of / 2015.

 

Valentin Moreno, Jr.

Page 7.

shows;that, in over 75 percent of DNA exonerations the principle cause for
the erroneous guilty verdict was mistaken eyewitness identifications. Most
of those DNA exoneration cases, "involved a traumatic event." These DNA
exoneration cases are "proof", that the human memory does not function like
a camera. There has been over 2000 DNA exoneration cases since Applicant's
trial. Furthermore, Applicant would vigorously add emphasis to the decision
by the New Jersey Supreme Court, the essence of said case is eyewitness
identifications and the scientific evidence on that subject,

In regards to the State's response, that dr¢ Alamia's trial testimony
and Dr. Aldridge's affidavit, amount to nothing more than a battle of experts.
Applicant argues and would ask this Court to take Judicial Notice, that the
State has incidentally conceded that, Applicant meets the provisions under
article ll.O73(a)(2). Applicant contends that a "battle of experts",
translates into contradicting experts. [see Exhibit B, Pg.5, quirte 2.]

The scientific evidence Applicant has presented in support of this argument
does much more than just contradict, the scientific relied on by the State at
trial. Because this issue is a previously, unresolved issue in controversy,
that if resolved in applicant's favor would entitle him to habeas relief.
Applicant.is requesting this Court take Judicial Notice of the State's
Reponse (e.g., "battle of experts"), and all the scientific evidence has
presented. 'Ihe "battle" is a (20) year d')arge inexpert ".."rret‘lbdolgy". See, art. ll.O73 (d)

(eff. 9/01/15). VI
STATE BAR RULE 3.03 VIOLATIONS

Applicant has identified violations of State Bar Rule 3.03, by a represnt-
ative of the Hidalgo County District attorney's Office. Assistant District
michael Morris has made false statements on critical issues, surrounding an
actual innocence claim. pursuant to the foregoing, Applicant respectfully
requests a hearing and sanctions,‘ _as per T.R.A.P. 52.11; Tex. R. Prof'l Discp. conduct

. .04.
803andS v Page 5.

VII.
CONFLICT OF INTEREST

 

._..;.

Applicant would respectfully ask this Court to take Judicial Notice that,
the enactment of State Bar Rule of disciplinary Procedure 15.06(c), creates
of conflict of interest. In most, if not all, state habeas corpus litigation,
is handled by the same district attorney's office that convicted the habeas
corpus applicant. This 'includes' putting together "proposed Findings of Fact/
Conclusions of Law, Recommendations and Orders", which the district courts
almost always adopt.

Applicant contends that, that there is a serious "conflict of interest"/
when district attorneys are confronted with claims of prosecutorial misconduct
that can result in sanction and/or imprisonment. It is either the same district
attorney responding for themselves and/or their brethern, pursuant to claims
of habeas corpus on prosecutorial misconduct. thmntdr;art.ZJM_C.Cr.P.

Thus, Applicant asks this Court to take Judicial Notice that the enactment
State Bar Rul of Disciplinary Procedure 15.06(c), creates a conflict of
interest. Specifically, to "Proposed Findings of Facts, Conclusions of Law,

Recommendation and Order".

PRAYER
WHEREFORE, PREMISES CONSIDERED, APPLICANT respectfully prays that this
Honorable Court, accepts the foregoing and takes judicial Notice of the

issue presented therein. And, grants any relief this Court deems proper.

Done on this 3[;/ day of di ' , 2015. '
respectfully Submitted/
%/;;J§A/W of

Valentin Moreno, Jr., Pro se
788216, Robertson Unit

12071 FM. 3522

abilene, Texas 79601

Page 6.

 

 

VERIFICATION “

I, valentin Morene, Jr., hereby declare under the penalty of perjury¢ that

the contents in the foregoing motion are true and correct.

none on this Maay of 757<;_ , 2015.
/MZ;T/%M ga

Valentin Moreno, Jr.

CERTFICATE OF SERVICB

I¢ Valent%n Moreno¢ Jr., hereby certify that the original copy of applicant's
request for Judicial Notice, was sent by U.S. weil to the Clerk of the Court
of Criminal Appeals, and a copy sent to hidalgo county District Clerk and

hidaldgo county assistant district attorney nichael w. Morris.

'Done on this §L_ day of . /»;Z §§ , 2015.
62{;&5?%; /¢?Z;ba¢O//;]L

Valencin woreno, Jr.

( Page 7.

 

 

 

 

 

 

l . ~ l.
nm l v BEATRICE TREVINO, _E;%&\\C>\_r !\
.- 2 `the witness, having been previously examined, cautioned
3 and sworn upon her oath to tell the truth, the whole
4 truth and nothing but the truth, then testified as v
5 follows, to-wit:
6 DIRECT EXAMINATION
7 BY MR. GOULD:
8 Q. Please state your name.
9 A. l Beatrice Trevino.
_10 Q. Okay. And you are the same Beatrice Trevino that
11 testified previously in this case?
12 A. Yes, sir.
13 Q. Okay. Now, after your testimony on Tuesday afternoon,
14 v you approached us right after that; is that correct?
15 A. Yes, sir.
16 Q. 0kay. And that's myself and Mr. McInnis?
17 A. Yes, sir.
18 Q. Okay. Now, you also recall having testified about
19 Catalino and valentin and there being some question
20 about there being two people named Cat?
21 A. Yes, sir.
22 Q. ` Okay. what is it that you wanted to explain about
23 that?
24 A. On the day I went to give my statement, I recall befgre
25 _ ‘ f I gave my statement that I had mentioned Cat but 1 had

 

 

 

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said Catalino first and that name is -- like, I know
Cat as Valentin, so kind of -- I think I kind of got
them confused as Cat because I know Valentin more than
I do Catalino. n

Okay. And whenever you were -- who did you talk to?
Do you remember?

The DA.

Over at -- whenever you went to_the sheriff’s office.

I talked to -- the time I stated that, it was three in
there. It was the head of the detectives and the other
two that were -- Solis and -- 1 can’t remember back. I
can’t remember.

Okay. Did you view any photographs while you were
there at the sheriff’s office?

Yes, I did.

Okay. And could you explain to the jury how it was
that they showed you these photographs.

They first brought in one photograph of Valentin Moreno
and then they brought in another at a separate time.
Okay. And what did they do when they brought in these
separate photographs?

What did they do?

Did they ask you anything or --

If I recognized Valentin. And I said, "Yes, I do

recognize him." The other one I could not recognize.

 

MAGGIE HINOJOSA, C.S.R. 11

 

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All right. Now, this matter of your saying you get
confused -- a

Yes.

-- did you try and ever tell any representative of the
District Attorney's office about this?

Yes, I did.

Who did you try to tell?

I tried to tell the District Attorney.

Are you talking about Ms. Arizpe?

Yes.

Okay. And when did you first tell her about this?
Tuesday.

Tuesday?

Yes.

okay. And that was before your testimony; is that
correct?

Yes.

And was there any response in reference to that?
Yes.

And what was that response?

Something like I was changing the story, that I had
already given a statement. And I tried to explain this
had happened before I gave my statement.

okay. And, so, what was the -- what was the bottom

line that you were told?

 

MAGGIE HINCJOSA, C.S.R. 12

 

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Q.

A.

That I was trying to change my statement but I’m not
trying to change my statement. I'm just trying to
state something that had happened before I stated my
statement.
Okay. All right. Now, did you ever have an occasion
to speak with Ms. Arizpe before Tuesday?
Yes.
Okay. And when was that, if you remember?
I don’t recall the date. _She called -- she had called
me twice on the phone and once she went to my house.
Okay. And when she went to your house, did you explain
to her any reservations about your identification of
any people there?
Yes.
Okay. What did you tell her then?
At the time she went to my house I told her what I
could recall on my statement. And she had -- she said
something about, "Well, it has to be correct," or
something like that, "because somebody else states the
same." And I was like, well, I can’t be a hundred
percent sure so I cannot say that I was a hundred
percent sure.

MR. GOULD: I'll pass the witness.

THE COURT: Ms. Arizpe.

CROSS EXAMINATION

 

MAGGIE HINOJOSA, C.S.R. 13

 

 

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BY MS. ARIZPE:

Q. Mrs. Trevino --
A. Yes, ma'am.
Q. -- you gave a statement to the police department;'is

that correct?

A. Yes, ma'am.

Q. And you've testified before; is that correct?

A. ¥es, ma'am.

Q. And the last time you were called in not by the State

but by the Defense; is that correct?

A. Yes, ma'am.

Q. And in your testimony did you not say pursuant to the
questions of the attorney when you were asked, "would
you please -- one at a time, who was the first guy that

got into the vehicle"?

A. ¥e$.
Q. "Juanito was the driver."
"Okay. And guy number two?"
"Valentin Moreno, Joe Garcia."
"And the third?"
"The fourth I saw but I did not recognize."
Do you remember saying that?
A. Yes, ma'am.
Q. You never mentioned anything about a Catarino; is that
correct?

 

MAGGIE HINOJOSA, C.S.R. 14

 

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A. No, ma'am.

Q. Okay. d

A. But --

Q. Now, you were asked again, "You've indicated -- okay.
was Juanito carrying any weapon, if you saw?"

"No."

"Okay. Was Valentin carrying a weapon, if you
know?"

"Yes."

"What weapon was he carrying?"

AE§“~/j d "A cuerno de chivo."
' RJ£Q,

"And was Joe -- was what has already been
identified as Joe Garcia carrying any weapon?"

"Yes."

"And what was that?"

"A handgun."

"And that fourth person that you have not been
able to identify but you have told us it's not Jessie
Trevino, was he carrying a weapon?"

"Yes."

"And what kind of weapon was that?"

"I'm not sure what kind of rifle but it was a
rifle."

Do you remember that testimony?

A. ¥es, ma'am.

 

MAGGIE HINOJOSA, C.S.R. 15

 

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Do you remember your testimony also when I asked you
about our conversations at your house --
Yes, ma'am.
-- that you said that you did not recall because you
had not read your statement?
Yes.
Do you also.recall in your statement that you gave to
the sheriff’s office when you said, "I then saw
Juanito, Valentin Moreno, also known as Cat, and Joe
Garcia start to jump into Juanito's red Pontiac
Sunbird"?
Yes.
Do you remember saying that?

Do you remember signing your statement on
December 21st of 1995?
Yes, ma'am.
Do you remember giving this statement to Joseph
Buenrostro?
Yes.
And when we discussed this again, isn’t it true that I
told you, well, you've already testified under oath --
Yes.
-- about one thing? You gave a statement under oath

about the same thing.

But as I tried to explain, this was before I gave my

 

MAGGIE HINOJOSA, C.S.R. 16

 

 

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statement and there was three people there that heard
what I had stated. t
Okay. But when you signed this statement, did anybody
force you to sign it?
NO.
When you came into this courtroom, did you ever tell
the jury that you were not sure about Valentin Moreno?
I told them that I wasn’t a hundred percent sure.
That's correct. You said not one hundred percent sure.
Right.
But you never said anything about not being sure about
Valentin at all being there --
Uh-huh.
#- isn’t that correct?
That's correct.
And you never once in that trial mentioned a Catarino,
did you, not once?
No, I did not. But I did mention it --
But not in the trial?
NO.
That’s all I want to know.
Not in the trial.
In the trial you never mentioned him.

Now, this Catarino that you’re talking about, do

you know his last name?

 

MAGGIE HINOJOSA, C.S.R. 17

 

,4.~\.

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Herrera.

Okay. Where does he live?

Edinburg.

Okay. And, so, this -- when you came to my office, I
told you, well, it's not in your statement and you
never testified under oath --

Right.

-- and you were placed under oath.

Right._ But as --

Now, let me --

Try --

Now, let me ask you this, please: Are you telling me
now and this jury that you lied in your statement?

I did not lie in my statement but there is some stuff
that I remember now that did not pertain to the other
case.

Okayu

And I do wish to say that at this time,

okay._ Okay. This is all I'm asking you: Did you lie
in this statement when you said Valentin Moreno, also
known as Cat, jumped into Juanito's red Pontiac? Did
you lie here?

No.

Did you lie under oath when you were asked about

Valentin Moreno and you said he was carrying a weapon,

 

MAGGIE HINOJOSA, C.S.R. 18

 

 

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BY

Q.

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Q.

a cuerno de chivo? Did you lie under oath here?
Not under oath, Not-intentionally.
Okay. Well, I mean, it’s one or the other, right?
well, it’s really not if I confused the nicknames with
the names.
But you know the two individuals, don’t you?
I know Valentin more than I do Catalino.
Okay. And isn’t it true that you indicated in your
testimony when you testified under oath --
Right.
-- Joe Garcia, Juanito Trevino, and Valentin Moreno --
when you testified under oath, the only person you said
was not in the car was Jesus Trevino?
Right. That is correct.
And you never told us about Catarino at all?
No.

MS. ARIZPE: I pass the witness, Judge.

REDIRECT EXAMINATION

 

MR. GOULD:

But you did tell the sheriff’s office about Catalino
early on before you gave your statement?

Yes,
Okay. And you attempted to explain your confusion to
Ms. Arizpe before you testified under oath in court the

last time, didn't you?

 

MAGGIE HINOJOSA, C.S.R. 19

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Yes,
And Ms. Arizpe tried to say, well, somebody else has
identified so and so, so you've got to go ahead and
stick with your statement?

MS. ARIZPE: Objection, Your Honor.
Counsel is speculating as to what that statement may
have been, Your Honor. He was not present.

THE COURT: Sustained. Rephrase the

question.

BY MR. GOULD:

Q.

A.

Okay. what was it that was said?
To the point where I got it -- I got it as she’s
stating that two people couldn't be wrong, one being at
the scene where they were in and one being at the scene
where the shooting was at. And that’s when I disagreed
and I said I couldn't be a hundred percent sure what
had happened over there because I wasn’t over there.
Okay. And all of these statements that you were asked
about in the last time you testified, all of those
statements were made after you had expressed your
reservations to Ms. Arizpe when she came to your house?
Yes.

MR. GOULD: I pass the witness.

THE coURT: Ms. Arizpe.

 

RECROSS EXAMINATION

 

MAGGIE HINOJOSA, C.S.R. 20

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BY

Q.

MS. ARIZPE:

At the last trial, Ms. Trevino, you remember we
addressed that situation at your house where you had
said that you were not sure?

Yes, ma'am.

Let me read this to you and see if you recall my
question to you in court.

"And you told me that you were distracted and
turned away and that you didn't know who got into the
car?“

Your answer, "I also told you I didn't recall my
statement."

"Okay. But at what point in time -~ but in that
point in time you told me that you were distracted"?
¥es.

"I didn't recall my statement," is your answer,

"On your statement you said that?"

"1 told you that 1 didn't recall what I wrote --
I had told them in my statement."

Question, "And remember that I asked you if you
said in your statement that Juanito, Valentin, and Joe`
got into the car. would that be correct?"

And do you remember telling me, "I can’t say
that because I was distracted and looked away"?

Yes.

 

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Now, remember that conversation?
¥es, ma'am. _
And this is your answer: "I can’t say that I can
pinpoint them a hundred percent. That’s what I told
you."

"Okay. Because it’s a hundred percent that you
couldn't pinpoint them, a hundred percent?"

And you proceeded to say you were a hundred
percent that Jessie wasn’t there.

Now, in that statement remember that you said
you were distracted and you weren't sure who got into
the car?

Yes.

when we came into court, what you said in court, "No,
that’s not what I meant. I didn't remember what was in
my statement," remember that?

Yes,

And when you came to court to testify, the first thing
that the defense attorney did was to allow you to take
your statement to read it.

Yes,

And then you testified and said what you said in your
statement was correct. Do you recall that?

what I said in my statement was, if I recall, some of

the stuff wasn’t in there and some of the stuff that I

 

MAGGIE HINOJOSA, C.S.R. 22

 

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said was --

Okay. well --

-- revised.

-- let me go to specifics then. .Let me go to
specifics.

Okay.

You said that what was correct in your statement was
the three guys. You were not a hundred percent sure
but there were three guys.

The fourth one, I didn't recall.

The fourth guy you later indicated you were distracted
at some point, may have not seen him, but you knew it
was not Jesus Trevino?

Yes.

And that’s correct, isn’t it?

Yes, ma'am.

Okay. And the last time you never mentioned Catarino
to the defense attorney. You never mentioned it to the
court, to the jury --

Right.

-- or to me; is that correct?

That is correct. But to each case you remember a
little bit more that pertains to that particular case,

and this is the case where I remember that part.

Let me ask you this: Are you saying Catarino Herrera

 

MAGGIE HINOJOSA, C.S.R. 23

 

 

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Q.
A.

Q.

was in that car and had the cuerno de chivo? Is that
what you’re saying? '
I'm not stating that, ma'am.
Okay.
I'm stating that I confused the two names, two of the
nickname.
Okay. Now, is Valentin Moreno, Jr., known as Cat to
you?
yes.
And you've known Valentin Moreno since what year?
’92.
And the reason you know Valentin Moreno since ’92 is
because you were a security guard at P.S.J.A. South?
Yes, ma'am.
And that’s where you met Valentin Moreno?
Yes, ma'am.
And you had seen him hanging around at times with your
nephews?
Yes, ma'am.
MS. ARIZPE: I pass the witness.
MR. GOULD: No questions, Your Honor.
THE COURT: All right. Step down. You
are subject to recall.

¥our next witness.

MR. McINNIS: Judge, we would call Sabrina

 

 

MAGGIE HINOJOSA, C.S.R. ' 24

 

 

tamm ibp 56%‘§5§§ - M

  

Ex parte n § . ; ' miDeputy#M
§

Valentin Moreno, Jr., §
§

Applicant §

 

STATE’S RESPONSE TO APPLICATION
FOR A WRIT OF HABEAS CORPUS SEEK]NG RELIEF FROM FINAL
FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE,
ARTICLE 11.07

 

TO THE HONORABLE JUDGE OF SAlD COURT:

COMES NOW the State of Texas, by and through the Criminal District
Attorney of Hidalgo County, and files this Response to Application for a Writ of
Habeas Corpus Seel<ing Relief nom Final Felony Conviction under Code of
Criminal Procedure, Article 11.07,and would show_ that, pursuant to Section_ 4 of
Article 11.07 of the Texas Code of Criminal Procedure, no hearing is necessary in
this matter; and that, in fact, the application for a writ of habeas corpus should be
DISMISSED. ‘

STATEMENT OF FACTS
The records of the case below reflect the following:
1. On March 3, 1996, Applicant was convicted by a jury of the offense of
capital murder and was sentenced to life Imprisonment in the institutional

Division of the Texas Department of Criminal Justice.

8. On June 15, 2015, Applicant filed his third application (hereinafter cited as
AA) for a writ of habeas corpus under article 11.07 of the Texas Code of
Criminal Procedure alleging: (l) prosecutorial misconduct; (2) due
ineffective assistance of counsel; (3) cumulative error; and (4) actual
innocence

9. The State was served with Applicant’s Application on June 23, 2015, and its
response is therefore due no later than July 8, 2015. See TEX. CODE CRIM.
PRoC. art. 11.07 § 3(b) (2015).

10. This Court must determine whether or not there are controverted, previously
unresolved facts, material to the legality of Applicant’s confinement no later

' than July 26, 2015. See id. § 3(¢).
ARGUMENT
In his first application for a writ of habeas corpus, Applicant raised issues

which challenged the merits of the underlying conviction. On April 24, 2002

Applicant’s first application was properly denied. (WR-49,474-02). On May lO,

2011, Applicant filed a second application for writ of habeas corpus, which Was

dismissed as subsequent under section 4 of A.iticle 11.07 of the Texas Code of

Criminal Procedure. (WR-49,474-04). Applicant filed a second subsequent writ

asserting alleging: (l) prosecutorial misconduct; (2) due ineffective assistance of

Applicant asserts that he is actually innocent and that his conviction is a ,
result of constitutional violations. AA at 6, 8, 12. Specifically Applicant alleges
that: the prosecution engaged in misconduct by eliciting “false testimony” from
defense expert Dr. A.J; Alamiaz; the prosecution influenced State witness Beatrice
Trevino’s identification with unduly suggestive post-event information3; the State
presented false testimony through Yvonne Gonzales; and the State withheld
ballistic evidence. AA at 6-7. Additionally, Applicant alleges that trial counsel
was ineffective for: failing to investigate Dr. Alarnia’s proposed v Scientific
testimony; investigate Yvonne Gonzales’ identification; failed to investigate
ballistic evidence; failed to investigate prior incidents with Det. Buenostro; and
Counsel failed to protect Applicant’s interests and constitutional rights with
regards to Beatrice Trevino’s revelation regarding her identification Applicant
alleges that he meets the exception to the prohibition against subsequent Writ
applications set forth in Section 4(a)(2) of the Code of Criminal Procedure. 1

To establish that‘ he has met the “fundamental miscarriage of justice”
exception in Section 4(a)(2), an applicant is required to make a prima facie

showing of actual innocence in order to demonstrate that the constitutional

 

2 Applicant supports the claim that this witness provided “false” testimony by way of an opinion
provided by another expert. As such, this is more properly a battle of experts rather than “false”
testimony.

3 This claim has been litigated on direct appeal adversely to applicant. Further, the only “new”
aspect of this claim is that the witness Was influenced by some post event information. However,
the post event information applicant complains of was only provided to the witness after she
testified in his trial. The State contends this could not have influenced her testimony.

testimony4. See Applicant’s Exhibits A-7 and A-l35. This does not establish that
applicant is actually innocent rather; it establishes that if the expert is to be
believed, the eye witness’ testimony might be flawed. Without definitive evidence
that Applicant did not participate or could not have participated, these experts do
not establish any claim of actual innocence As for Yvonne Gonzales’ affidavit, it
merely states that she cannot be sure her identification of Applicant was properly. _
See Applicant’s Exhibit A~l6. Given the intervening years and the fact_that she
does not state that Applicant was not a participant, this affidavit does not provide
affirmative evidence which shows or tends to show that Applicant is actually
innocent. Rather, it merely states that Ms. Gonzales is no longer as sure as she was
at trial of her identification of _Applicant. Applicant must make some showing of
actual innocence; not just raising some doubt as to his guilt. See Ex parte
Franklz`n, 72 S.W.3d 67l, 677 (Tex. Crim. App. 2002).

As such, Applicant’s claim is procedurally barred by the prohibition against
subsequent writs and the court should not consider the merits of or grant relief

based upon the subsequent application

WHEREFORE, PREMISES CONSIDERED, the State prays:

 

4 Each expert also states that they were available to testify at the time of the trial; as such, the
evidence is not newly discovered as it would have been available at the time of Applicant’s first
writ. See Applicant’s exhibits A-7 and A-l3. `

5 Further, the State would point out that Mr. Scott’s “opinion” on what a witness could see is
outside of his expertise as a ballistics expert.

.Certification of Compliance

I certify that this application is in compliance with 73.1 (d), (e) and (f), and

/
Michael W. Morris

is comprised of 1789 words.

Certificate of Service
l hereby certify that a copy of the “State’s Response to Application for a
Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under Code
of Criminal Procedure'Article ll.07” was served on Valentin Moreno, Jr., TDCJ
number 788216, Robertson Unit, 12971 FM 3522, Abilene,_ TX 79601, on July 8,

2015, via certified mail, return receipt requested.

` , `M//

Micgaei W. Mis

.Certification of Compliance

I certify that this application is in compliance with 73.1 (d), (e) and (f), and

/
Michael W. Morris

is comprised of 1789 words.

Certificate of Service
I hereby certify that a copy of the “State’s Response to Application for a
Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under Code
of Criminal_Procedure Article 11.07” was served on Valentin Moreno, Jr., TDCJ
number 788216, Robertson Unit, 12971 FM 3522, Abilene,_ TX 79601, on July 8,

2015, via certified mail, return receipt requested.

 M//

MicK ael W. Mo/is

EK\A\QJ\T C/ ~ l

NO

 

 

 

 

 

 

 

 

 

 

 

M

TI-IE STATE OF TEXAS
COUNTY OF M
BEF'ORE ME, the undersigned authority, on this day personally appeared
JAMES ALDRIDGE, who

swore or affirmed to tell truth, and stated as follows:

“My name is JAl\/JES ALDRIDGE

I arn of sound mind and capable of making this sworn statement l have personal knowledge of
the facts written in this statement. I understand that if I lie in this statement l may be held

criminally responsible This statement is true

l. l received a Ph.D. in Experimental Psychology with a subspecialty in human learning and
memory from the Svtate University of New York at Binghamton in 1976. I have been a
professor in the Psychology Depaitment at the University of Texas Pan American and its
predecessors since 1077, where I have taught advanced courses in memory for my entire time
there. I have also produced numerous articles and presentations on memory and the

perception of situations in professional journals and at professional conferences

n 2. l am speaking for myself and not for the university

3. I have never met Valentin Moreno and am offering the following information without a fee,

~as a public service All information is verifiany Well within my area of expertise

page l of 3 _ J ames Aldridge Affidavit

Mr. Moreno has asked me to comment on an assertion made in his trial and provided me with
pages 90 through 110 of Volume XVII of the transcript The witness appears to assert that in
individual emotional situations memory always becomes highly accurate or photographic l

declare with a a reasonable degree of scientific certainty that such an assertion was

` misleading and not true, and was not an accepted characteristic indicated by memory research

at the time of Mr. Moreno’s trial. In.fact, intense emotionality may diminish the accuracy of

memory The assertion made by the witness to Mr. Moreno’s jury was therefore incorrect

lt was suspected at one time that memories for large-scale earthshaking events, such as the
bombing of Pearl Harbor or President Kennedy’s assassination, are unusually accurate
However, even in these situations it tunis out that the circumstances may make memories
quite vivid even if they are inaccurate Vividness being mistaken for accuracy may cause a

person to be quite confident of a false memory.

In two thirds of convictions overturned on the basis of DNA evidence the convictions were at
least in part based on eyewitness testimony. Although Mr. Moreno’s case does not involve
DNA evidence, the frequency of inaccurate eyewitness testimony revealed by these cases is

an important indicator that memories of eyewitnesses are not as reliable as once thought

Mr. Moreno also asked me to comment on whether post-event information may lead to
distortion of memory for the event. The answer is definitely-yes, _and this occurs to a much
larger degree than common sense would lead one to expect This was established as early as
1974, when a researcher named Elizabeth Loftus studied the effect of questions asked after
viewing an automobile accident If a question included the word “smashed”, witnesses were
almost twice as likely to later falsely remember broken glass than if the same question used
the word “hit”. Worse, the false detail apparently became a permanent part of the witness’s
memory of the accident This result spawned a large amount of research which confirmed and

expanded the finding that even seemingly trivial information after an event could cause large

' distortions in memory of the event.

page 2 of 3 _ James Aldridge Affidavit

, l\ "

/'l

8.

1 was working at the University of Texas_ Pan American in Edinburg at the time or Mr.
Moreno’s trial, as was another memory expert who could have also testified to points 4 - 7

above l, at least, was never contacted if l had been l would have testified to them as l am

 

doing now, pro bono. M » _
Kz`/V ' § w

 

 

State of Texas
County of Hidalgo

' SWO to and SUBSCRIBED before me, the undersigned authority, orr ;; `

57a/hrs Q/r//z/r/éa

[PRlNT the first and last names'of the person who is signing this aflidavit_]

the [/ day or /tut~'mtba;/ 1 z@/_</ year by

 

~ a a Notary Public, State of Texas [Notary’s signature.]
i,f §§ MY coMMlssloN E)<PiP,Es -
'z _ June1,2017 »‘

[Notary’s seal must be included.].

 

;\_.

page 3 of 3 -- James Aldridge Affidavit

 

