                                 TEXAS COURT OF CRIMINAL APPEALS
This document contains some
pages that are of poor quality            AUSTIN, TEXAS                 I RECE~VED ~N
                                                                       OOURT OF CRIMINAl APPEALS
at the time of imaging.                            §
                                                                        I          FEB 09 2015
                                                   §

                                                   §                    I       Abd Aeom1, Clerk
    EXPARTE'                                                            I
    Isaias Palacios                                §
                                                          Cause Nos. CR36475 & CR36477
                                                                        I
                                                                        I
                                                   §

                                        WRIT OF MANDAMUS                I

    To The Honorable Judge of Said Court:

         Comes now, Isaias Palacios, petitioner ·±n the above styled and numbered cause
                                                                        I
    of action and files this original Application For Writ of Man<;Jamus, pursuant to
                                                                        I
    Art. 11.07 Section 3(c) of the Texas Code of Criminal Procedure and would respectfully

    show the court the following:                                       i
                                                   I.                   I
                                                                        I
         There   i~   no known practice of barring non-capital state writ applicant's from
                                                                            I

                                                                        I
    filing a supplemental application. As indicated above nothing in art. 11.0 7 res ticts

    an applicant from filing a supplemental argument. Tex. Rules of Appellate procedures,
                                               .                            I               .      .
    Rule 73 applies to "postconviction r3pplications for writ of h~abeas corpus" and
                                                                            I
                                                                            I
    does not address supplemental applications. Therefore, pursuant to              T.~C.C.P.   art.
                                                                            I
    11.07 §3(c) petitioner moves this Honorable Court of CriminaljAppeals to grant his

    mandamus because there is substantial controversy· as m3terial lfacts which wiil
                                                                            I
    entitle petitioner to relief as a matter of law.

                                               II.

         Petitioner filed his original writ of habeas corpus 11.07              in the 142nd
                                                                            I
    Judicial District Court, Midland County, Texas.on oc about the 8/11/2014. Petitioner,
                                                                            I

    Page 1
                                                                   I
filed a .supolemental argument in support; thereof, supplementing the original

argument found in   ~round   (4) four, which the prosecution wit~he1d exculpatory as
                                                                   t·'"../.
well as impeachment evidence on or about the 8/22/2014. See exhibit (a) supplemental

argument, which the trial court.had a :)uty to rule 'on within 135 _days which has

expired as of this date. Therefore, pursuant
                                    -
                                             to art._ 1!.07
                                                        --
                                                            §3(c),
                                                             i
                                                                   failure of the
                                                                    I
court to act within the allowed 35 days shall constitute a forwarding of the
                                                      I
petitioner's supplemental argument to the Texas Court of          . I.         l           l            I
                                                                Cr~~~na            Appea s.       ~~weyer,

 petitioner's case has been before the court for 1
                                                     ~
                                                           months ands- days
                                                                   1'---                       and he

has no other adequate remedy available.

                                          III.

     The act sought to tx:{~~ompelled is ministerial , not discretionary in nature.

T.C.C.P. art. 11.07 §3(c) requires respondent to i'inmediately transmit to the Court

of Criminal Aopeals a copy of the 11.07 habeas corous "supplemental argument," any
                                                                       I

answers filed, and a certificate reciting the date upon #hicB that filing was made,

if the convicting court decides that there are no issues to Je resolved. At this
                                                                        I
time there has been no cooy of the supplemental l_L 0 7 · arqumeqt, answers filed, nor
                                                                       I           ·
a certificate reciting the date upon which that f ~.l.~ng was tr.ansm1tted to t h e Court
                                                                        I
                                                                        i
of Criminal Aopeals. However, had such documents been transmitted to the Court

of Criminal Appeals by Respondent as required by statute, peJitioner would have

received notice from the court.
                                                                        I              -
                                                                        I
                                          IV .

     . In order to obtain mandamus relief in a criminal matter, .a petitioner must
                                                                        I
                                                                        I
meet a two-prong test. First, petitioner must show that he has no other: adequate
                                 -                                      I
remedy to seek redress for the alleged error by the trial court.
                                                            I
                                                                 See -
                                                                     Board of Pardons
                                                                       --------

and Parole:3 v.• Court of A£Peals,· 910
-·
                                          s.w.   2d 481, 483 (Tex. Grim. App_. 1995). There
                                                                        I
is no other remedies in petitioner's case for his suppl em en ta11 argument to be heard
                                                                           I
                                                                           I




Page 2
                                                                                I
                                                                                I

                                                                                I
                                                                                I
by the Court of Crinia l Appeals ,. or federal court s because the trial court · is
                                                                 1

     .                           -                                         .    I
holding oe_. ti tioner s supp.lemental 11.07, argument and has not made a ruling. Secondly,
                        1

                                                                                I                         - .    .
the act petitioner seeks to compel must be ministerial in nature under art. 11.07,

it is ministerial for the trial court to rule on the 11.07 sJpplemental argument,

so that the Court of Criminal Appeals can consider his claimJ. See Hilbig v.

McDona ld , 877 _s. W. __
                        2d .__
                            469 . Moreover. ·a t h eoret1.ca.L        ~-
                                                          . ,,.... y c.u...:;;cre
                                                                          ·         .I
                                                                                  t ~onary .act my non the 1ess
become ministerial in application if the facts and circum.3tances of given case lead
                                                                                !
to, but one rational course of action. See Braxton v. Dunn, 803                              s.w.   2d 318, 320. The
                                                                           -        I
Court of Criminal Appeals also recog:1izes a clear right to tHe relief sought as
                                                                1-
being functional equivaleni: of. a mini.steral rJCt. Holmes v. THird Court of Appeals, No.

71, 764 N. 4 slip. op at 5, 1994 WL 135476, Tex. Crim. App.                    ~pirl           20, 1994; _Whitsitt

v. Ramsay, 719     s.w.     2d 333.
                                                   v.
                                                 PRAYER

     WHEREFORE, PREMISES mNSIDERED, petitioner respectfully r,equest a findino that
                                                                                    I
                                                             II
the Respondent did not transmit docu1nents to the Co'.lrt of Criminal
                                                                I
                                                                      App:=als within
                                                                                    I
a r-easonable time after        th·~   date they were requested and that petitioner brought

this litigation in good faith and has substantially prevailed. Petitioner prays

for an order directinq Respondent to transmi tt a copy of the                       ln.      07 supplemental

argument of habeas corpus,             ~ny   answers filed, and a certific:ate reciting the date

upon which that ftndinq was made to the Court of Criminal App~als as directed in

Article 11.07 Section 3(c) of the Texas Code of C:Limiiial -Procldures and all relief

as requested, which is set out in exhibit (a).


                                                                                    l
                                                                                    I
                                                               Respectfully Submitted
                                                            ~ ~                                      2/:J/2o/S-
                                                              rsaias Palacio~
                                                              1675 South FM 8525
                                                                                        1

                                                              Colorado City,l Texas
                                                                                  79512


                                                                                        II
Page 3
-   l




                                        CERTIFICATE OF SERVICE


              I Isaias Palacios, hereby certify that a true copy of the!above Application

        For Writ of Mandamus was served on the Clerk of the Texas . Coutt
                                                                       I
                                                                          of Criminal Appeals

        in Austin, Texas on      J   day of   Febcuacy           ,2015, by placinq a ::::opy in
                                                                          I
        the   u.s.   Mail at the Wallace Unit.



                                                                         II




                                                           ~~
                                                                         I .
                                                                          I
                                                                          I

                                                                          I
                                                                          I




        page 4
                                           (EXHIBIT 1-a)
f   ":"-




                                                     /                                       FIL.ED
                                    CAUSE NOS • CR 36-4 75 & CR 36-4 77

                                                     §

                                                     §
                                                                                        Ct:ARISSA GRANADO, ;;: :: I ... '
           EX parte                                  §               IN THE DISTR:i:CT·T:·o!JRT··-FOR . .
           Isaias Palacios                                                       I
                                                     §               l42ND JUDICIAL DISTRICT
               Pro'Se Applicant
                                                     §               MIDLAND !COUNTY, TEXAS
                                                                                 .
                                                    §
                                                                          I
                        SUPPLEMNETAL 11.07 APPLICATION WITH BRIEF IN SUPI!ORT

               Applicant, Isaias Palacios.asks this Honorable Court to gJant his "original
                                                                                 II
           application" challenging his conviction in CR 36-475 and CR 36-477, or in the
                                                                                 !
           alternative grant relief based on his "supplemental applicatidn" by finding tl":le

           prosecution withheld favorable evidence that was material to Jpplicant's
                                                                         I
                                                                                    defense.
                                                                                 I

           Applicant requests a hearing on said matter. Applicant stands ion the arguments

           presented in his "supplemental application" as well as all prJvious arguments
                                                                                 I
           made in his "original application."

                             ARGUMENT IN SUPPORT OF SUPPLEMENTAL   APPLICATIO~
                                                                                 !
                                    USE OF SUPPLEMml'AL APPLICATION.
                                                                         I. appl.1.cat1ons
               There is no known practice of barring Non-capital state wrll.t         .

           from filing a supplemental application. As ·:indicated above ndthing in Article
                                                                             •
                                                                                 I
                                                                                 I


           11.07 restricts an applicant from filing a supplement. Rule      73        of the Texas Rules

           of Appellate Procedure applies to "Postconviction Applications' for the Writ of

           Habeas Corpus" and does not address supplemental applications. Rule 68.10 of the
                                                                                 1


           Texas Rules of Appellate Procedure allows a party to file a supplemental petition

           for discretionary review '!at any time when justice requires."




           Page 1                                                              I'
                                                                            .,.;.;
                               STATEMENT OF THE FACI'S
                                                                    I
                                                                    I
    The indictment forming the basis of the prosecution of the applicant was centered
                                                                    I
on a series of events, which occurred in and around an satablfshment in Midland
                                                                    I


known as Riley's Bar and Grill. (RR-Vol. 3, PP. 39-40, 101, 144-145,
                                                             I
                                                                     196). On                May
                                                                    I
                                   .                                '

25, 2009, Palacios was a customer at Riley's Bar, enjoying some drinks with his
                                                    .               I
common-law wife and her mother. ( RR-Vol. 5, PP .. 83, 8 7-89) .    I

    According to the testimony by Detective Bill Anderson, thJre was a video
                                                                    I


showing several male subjects scuffling with Palacios. He states, (someone)-he
                                                                     I



viewed the video, and knew of its existence, did not try to djwn load it, nor

contact someone who could, or retrieve it. Next he did the unthinkable, he did
                                                                     I
not mention this video and its viewing·in his investigation relport. (RR-Vol. 5,
                                                                   ·II
PP. 6-14).

    Palacios' mother-in-law testified that Palacios, Indian Joe, and herself were
                                                                        I
at a table; Palacios and she were playing around when Jamie Mejndez.BLIND SIDED
                                                                        I
[emphasis added] Palacios from the back, Palacios never saw it coming. Mendez

and two other guys pulled Palacios around the end of the pool !table, and just kicking

and whooping him. They beat Palacios in· two different points iln the bar before
                                                                         I
                                                                         I
taking him outside. (RR-Vol. 5, PP. 31-42).                              I
                                                                         I

                                                                         I
    Jamie Mendez stated, "I remember putting him down." (RR-Vol. 5, p. 14-25).
                                                                         I
                                                .                        I
Steven Taft, another patron in the bar, helped assault applicant or restrain him

being a former Marine and being trained in Police Apprehension! restraining techigues.

Taft stated, "After applicant got up, and·he went to the SlN       II    I
                                                                             remember the look

on his face, like not emotional at all, it was a blank look. And
                                                              I
                                                                 I remember that

clear as day in my mind." (RR-Vol. 3 pp. 228-230).                   I
                                                                     I
                                                                   . I
    Cristina Franco described the incident as more of a b eat~ng than someone

escorting Palacios out of the bar. She states they held Palacios down while kicking him



Pabe 2
                                                                 II
and when they let him up; he walked away. He was. just weird, if I had gotten a
                                                                 I
beating like that (RR-Vol. 3, pp. 156, 157 1-3).
                                                                 I
    When Palacios entered his SUV, the testimony showed that he drove his SUV in
                                                                 1




such a manner that he ran into other motorcycles and vehicles 1, subsequently

pinning a woman between a truck and a motorcycle. She was able to run away after

Palacios backed up (RR-Vol. 4, PP. 14-126, 78-84).               !



    *Pete Payan testified that, somebody hit Palacios, he fell to the ground, so
                                                                i
many "PEDPLE" [emphasis added] involved in it. ( RR-Vol. 4, ·p. i 11; 8-12) ; there was
                                                                 I
a bunch of "PEOPLE" on top of him, kicking him, just hitting !;im. (RR-Vol. 4, P.
                                                              I
12; 18-20) ~ There was a bunch of "PEOPLE" around this guy. (RR-Vol. 4, P. 13; 1-4). A·
                                                                 I
woman pushed me out of the way??? (RR-Vol. 4, P. 15; 1-5, 18-25). NO WOMAN was
                                                                 I
struck we both got out the way (RR-Vol. 4, P. 16; 9-17) . He ran into one motorcycle
                                                                 !
then another truck, or another motorcycle BUT DIDN'T hit any woman. (RR-Vol. 4, P.

16; 1-4).

    Palacios' wife entered the SUV by diving through a windowland the two left

Riley's in their vehicle traveling at a high rate of speed. (RR-Vol. 3, P. 122;
                                                                 I


Vol. 4, P. 33). As applicant was leaving Riley's Bar, Midland!Police Officer, Richard

Lewis was arriving in response to a report of a disturbance at Riley's Bar. (RR-
                                                                 1
Vol. 4, PP. 178-179) Officer Lewis instructed applicant to stop his vehicle in

the bar's parking lot, while at the same time observing numertus people pointing

at Palacios' vehicle (RR-Vol. 4, PP. 179-180). Instead of sto¢ping, Palacios
                                                                 I


proceeded away from Riley's where upon officer Lewis activate~ his emergency equipment,
                                                                 I
hitting his siren a couple of times. (RR-Vol. 4, PP. 181-182)~ Applicant continued to
                                                                 !
drive from Officer Lewis traveling some ten to fifteen miles ~ver the posted speed

limit, finally stopping in the front yard of a residence. (RRtVol. 4, PP. 182-183).

                                                                 I
                                                                 I


Page 3
                                                                i
At the time of applicant's arrest, Officer Lewis also testifi~ that he observed
                                                              I
several marks on applicant's face and chest, that applicant repeatedly stated,

"They beat me up, they beat me up." (RR-Vol. 4, P. 184). At that time Officer Lewis
                                                                I
                                                                I
arrested Palacios for evading arrest and ag-gravated assault. (1RR-Vol. 4, P. 191) •
                                                                I
                                                                1
    At trial applicant presented evidence from various witness es to the effect
                                                                I

that he was ·injured during the altercation at Riley's Bar befdre he entered his
                                                                I
vehicle and drove it. Applicant's wife, Shanna Parker, testifi ed that she had left
                                                                1




                                                                I
Riley's to get some money, and upon her return saw three men swinging applicant
                                                                I
and throwing him out of the bar. (RR-Vol. 5, PP. 97-101). According to Ms. Parker,
                                                                I
these men appeared to be trying to hurt applicant. (RR-Vol. s,: P. 101). More
                                                                I

specifically, Ms. Parker testified that she saw these men hitting, kicking, and

shoving applicant to the ground. (RR-Vol. 5, PP. 105-114).      I
                                                                I
                                                                I
SUPPLEMENTAL GROUND FOR RELIEF: The prosecution withheld exculbatory as well as
                                                                I
impeachment evidence that was material to the applicant's defehse theory, and
                                                                I
therefore, violated applicant's 5th and 14th Amendment Rights   to       the United States
                                                                I
Constitution.                                                   I
                                                                I




                             ARGUMENTS AND AlJI'HORITIES

    When an applicant claims that the prosecution suppressed exculpatory
                                                               I
                                                                         evidence
                                                                    I
and thereby, violated his right to due process, the applicant   ~st       satisfy a three-

pronged test: First, applicant must show that the state failedjto disclose        eviden~e,
                                                                    I
regardless of the prosecution's good or bad faith. Second, appticant must show

that the withheld evidence is favorable to him. And finally, abplicant must show
                                                                    I.
that the evidence is material that is, there is a reasonable probability that had
                                                                    I
the evidence been diclosed, the outcome of the trial would have been different.
                                                                    II
See Exparte Richardson, 70   s.w.   3d at 870.                      I




                                                                    1
   The UNITED STATES SUPREME COURT has consistently held that a suppression or

negligence of a prosecutor to learn of any evidence known to o~hers acting ~n         the


Page 4
government·' s behalf is a due process violation under Brady standard. Standard
                                                                   i
for review: .In Strickler y. C"..reene   119 s.ct. 1936   1948 (1999). In Bradv, this
                                                                   I               -
court held "that the suppression by the prosecution of evidence favorable to an
                                                                   I
accused upon request violated due process where the evidence is material either to
                                                                   I
guilt or punishment, irrespective of good faith or bad faith of prosecution."
                                                                   i
Id. at 87, 83 s.ct. 1194. The court has since held that the dDty to disclose such
                                                             I
evidence is applicable even though there has been no request by the accused, United
                                                                   I
States v. Agurs, 96 s.ct. 2392 (1976). And that duty encompas~es impeachment evidence
                                                                   I
                                                                   I
as well as exculpatory evidence. United States v. Brady, 105 s.ct. 3375 (1985)
                                                                   I
    Such evidence is material "if there is a reasonable      proba~ility that, had the
evidence been disclosed to the defense, the result of the prooeedings would have
                                                                   I
been differenL"     Id. at 682, 105 s.ct. 3375; see also Kyles    v.
                                                                Whitley, ll5 s.ct.
                                                             I
1555 (1995). Moreover, the rule encompasses evidence "known only to police investigators
                                                                   I
and not the prosecutor." Id. at 438, 115 s .ct. 1555. In order I to comply with Brady,

therefore, "the individual prosecutor has a duty to learn of any favorable evidence
                                                                   I
known to the others acting on the government·'s behalf in this !case, including the

police." Kyles at 437, 115 S.Ct. 1555.

    Ms. Thurmond, the prosecutor for the state, requested a hearing outside the

presence of the jury on March 10, 2011, to preface her remarkS about Detective

Bill Anderson, who was the lead detective on this case. Ms. J,urmond, states that
                                                                       '

a week or two before trial that Detective Anderson, made her aware that Riley's

had a camera system inside the bar, and that at one point the1e was a recording of

the incident in the· bar of May 25, 2009. Anderson, told her th:at he wasn't able

to download the recording of the incident, but was able to      vie~       the video one
                                                                       I
time. Ms. Thurmond stated that Anderson told her that he didn •:t seize the system.

(RR-Vol. 5, P. 6, 1-8). Ms. Thurmond, admitted that she failed: to disclose to the

                                                                       l
Page 5                                                                 I
                                                             .e
                                                                           I
                                                                           I
defense that at one time a video existed. However, she statedl, that she never saw
                                                                           I
                                                                           !
the video because it was never downloaded, or put into          eviden~e                by MPD, she admitted
                                                             i
that she failed to disclose to the defense prior to trial the.existence of the

video, or that at one time a video of ·the evidence existed. M~. Thurmond, stated
                                                                           I
                                                                           I
on record that she just made the defense aware of the evidenc~ this morning, and
                                                                           I
further stated, that she's making the court aware of it as weil on the 3rd day
                                                                           I
of trial and 2 years after the incident. ( RR-Vol. 5, PP. 6, 7, ! 19-25) .
                                                                               I

    Therefore, if Detective Bill Anderson, had retrieved the ~ideo tape of the
                                                                               i
fight, then the jury and not the detective would have had thelchance to determine

who the·actual victim was in this case. Therefore, by refusinq to· try and retrieve

the video, Detective Anderson not only deprived applicant of               a fair           trial; he

placed an undue burden on the prosecution in this case. What's on the video is
                                                                               i
anyone's guess, but we do know for a fact that Detective Andetson saw someone
                                                                               I
scuffling with some men (RR-Vol. 5, P. 9, 18-25) However, he Ghose not to take
                                                                               I,


the video equipment because he did not want to leave the bar without it in case

something   happended:-~:   ( RR-Vol. 5, P. 13, 7-l 7) •   It seems    th~,t            Detective Anderson,

had failed -co realize that something had already happenea:?          Lat~r             during questioning
                                                                                I
Detective Anderson was asked; "If there was a murder, would yol have taken the

video?" He stated yes! (RR-Vol. 6, PP. 25, 26/23-25/1-3).                           I


                                                                                   I
    Why would Detective Anderson, take the video from one crime' scene, but not
                                                                                    !
take it from another crime scene? However, then intentionally keep it out of his
                                                                                    I

report, but 2 years later· at the last possible minute for him,ifindsit important
                                               .                                    I
to disclose his information to the D.A. (RR-Vol. 5, P. 13, 18-25). Anderson's actions
                                                                                    I
could fX>SSibly indicate fraud ,because the· :facts ·of· the ~matter.is· ~that.the. thoroughness of
                                                                       -            I
his·investigation;·depended·upon his actions·while looking            ~nto              the evidence and
                                                                                    I

                                                                                    I
                                                                                    I
?age 6
statements in this case. Even though, Anderson says the video'from
                                                             I
                                                                   Riley's Bar
                                                               I                .
was of low quality, it was still evidence and did exist and could have been shown

at the trial in chief had Anderson correctly done his job and seized the equipment

(RR-Vol. 6, 25, 13-15). Detective Anderson, admitted that he knew the video was
                                                               I
evidence in applicant's case, but yet, relied only on witness!statements rather

than to disclose it in his report;therefore, ·denying the pros1cution, applicant,
                                                                I

and his defense team access to the exculpatory evidence (RR-Vol. 6, P. 26, 15-25).
                                                                I

                                                                I
Thereby, applicant has met the first prong of Brady, by clearly showing that the
                                                                i
state failed to disclose evidence in his case.                  I

    However, this was evidence   that~      should have been immediately disclosed

by Anderson because of its probative value, it could have posJibly
                                                             I
                                                                   been used as
                                                                I
impeachment evidence due to conflicting testimony at trial, such as Jamie Mendez,
                                                                I

(RR-Vol. 3, PP. 198, 199) and applicant's mother-in-law, Ms. Parker, (RR-Vol. 5,
                                                                I
                                                                I

PP. 32-40). Therefore, when probative force of evidence depend.s on circumstances
                                                                    I
under which it was obtained, and those circumstances raise possibility of fraud,
                                                              !
which was an indication of conscientious police work will enhance probative force,

but slovenly police work will diminish it for purposes :_of deterlining whether non-

disclosed evidence of sloppiness of police investigation is ma!terial issue as reqU.ired
                                                                    I
for Brady violation. See Kyles v. Whitley, 115 S.Ct. 1555 (199S); also see Brady
                                                                    I
v. Maryland, 83 s.ct. 1994 supra.
                                                                    II
    By clear and convincing evidence it has been shown that a tape did exist; it
was kept from the defense by a member of the prosection's teamJ, and that the
                                                                    I
prosection had knowledge of it (RR-Vol. 5, P. 6, 1-20). The exbulpatory evidence,
                                                                    I
the video in question had some value as mitigating and impeach~~nt evidence.had
                                                                    I
it been disclosed to the defense due to multiple conflicting witnesses::testimonies
                                                              I               .




Page 7
d·uring applicant's trial about what took place at Riley's Bar. ITherefore, Detective
                                                                             . I
Anderson's assumption to rely on the truth and accuracy of w1tness statements was
                                                                                  I
error and;therefore, not to disclose thisexculpatory. favorable, and material
                                                                                  I
evidence denied applicant of a fair trial and that within its~lf w<~ harm (RR-Vol.
                                                                                  I


6, P. 26, 15-25). Thereby, meeting the second prong of Brady,                     las   applicant has
                                                                                  I
shown that the withheld evidence was favorable to him for mitigating and impeachment
                                                                                  I

purposes.

     In conclusion: Evidence which the government has failed tlI disclose to a

d~.!fendant   will satisfy the "materiality" test of Brady. Therefore, the question is
                                                                                  I
not whether a defendant would more than not have received a different verdictwi'.tn:

the evidence, but whether in its absence the defendant receiv1 a "fair trial."
                                                                              I
However, what should be understood here is, that a trial
                                                      .
                                                         resulting
                                                             .
                                                                   in a verdict
                                                                              I

worthy of confidence, "reasonable probability" of a different•result is accordingly

s h own wen
         h  t he government's ev1·dence suppress1on
                                                ·   und erm1nes
                                                           ·     I f'd
                                                                con        · t he
                                                                    1 ence 1n
                                                                              I


outcome of the trial. See Kyles v. Whitly 115 s.ct. 1556 (1995); United States v.
                                                                              I
                                                                             I
Bagly 473 u.s. 667, 680 (1985); United States v. Aqurs 1 427                u.s.        97 I 107 (1976);
                                                                              I
Brad:;t v.    Mar~land   1 373   u.s.   83 1963);   and Exr2arte Mowbra:;t 1 943      s.w.   2d 461, 466

(Tex. Cr. App. 1996).
                                                                              I

                                                                              I
     However, it is clear from the record that Detective Bill Anderson's actions
                                                                              I
completely undermined confidence in the outcome of applicant's trial in chief,

when he failed to disclose and make available for inspection ~aterial, exculpatory
                                                                              I


                                                                              I
evidence, (video tape) to the prosecution and to applicant and his defense team. This
                                                                              !
disclosure would; therefore, have raised an opportunity for applicant to attack the
                                                             I
thoroughness and good faith of the investigation, and would a+so have allowed

                                                                            .I
                                                                              I
Page 8
..

                                                                      I
                                                                      I
     applicant the oppurtunity to question the probative value of the video tape, which
                                                                  I
                                                                  I
     should·have been.crucial physical evidence in the trial in chief because Detective·
                                                                      !
     Anderson,:failed to disclose the video, but was allowed to     te~tify   to its contents
                                                                      I
                                                                      I
     at trial ( RR-Vol. 5, PP. 6-14) . See Kyles v. Whitley, ll5   s .ct. 1555 ( 1995 );. where
     the defendant was not given the opportunity to question the ptobative value of
                                                                       I



     physical evidence in his case.

            Therefore, however long the prosecution knew about the tape was irrelevent,
                                                                      I
                                                                      I
     the fact that the prosecution, and members of their team knewlaffected applicant's

     trial and the outcome of his trial was tainted by this failure of disclosure. Thereby,
                                                                      I
                                                                      I
     applicant has clearly met the third and final prong of Brady, 1 by showing that the
                                                                      i
     suppression of evidence in his case undermined confidence in the outcome of his
                                                                      II
     trial. Exparte Richardson, 70 S.W. 3d at 870; also see Brady v. Maryland, 373        u.s.
     .§1 (1963).                                                      I

                                             PRAYER                   I

            WHERE~RE.
                                                                      I
                        PREMIS CONSIDERED, applicant respectfully request that this Most

     Honorable Court consider the ground in this supplemental applJcation in relation

     to ground 4 and the other grounds detailed in his origin3l apdlication filed         on

     August 11, 2014, and applicant prays that this court grant hij relie± requested
                                                                      I
     here and in his original prayer.
                                                                      I

                                                                      !




     Page   ~L
                                                                                             (EXHIBIT 1-b)
                                                                                                                                      I
                                                                                                                                      II
                                                                             COURT OF CRIMJNAL APPEALS OF TEXAS ·~
                                                                           APPLICATION FOR A WRIT OF HABEAS CORPqs
                                                                         SEEKING RELIEF FROM FINAL FELONY CONVICTION
                                                                                                              .  I
                                                                        UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
                                                                                   .                                                  I
                                                                          .                                                           I


                                                                                                 INSTRUCTIONS                         I
                                                                                                                                      I
                                                                                                                                      '

                                                          I.      You must use the compJete form, which begins on the following page, to file an
f~...· - · - - -
                                                                  application for- a writ of habeas corpus seeking relieHrom a t1naffelony conviction
        1:'· ..!:·.\.                                             under Article 11.07 of the Code of Criminal Procedure. (This fo~m is not for dt~ath­
                                                                  penalty cases, probated sentences which have not been revoked, or misdemeanors.)

                                                          2.      The district clerk of the county in which you were convicted will   ~ake this form
                                                                  available to you, on request, without charge.                     \
                                                                                                                                       I
                                                                                                                                          i                         '   ·.
                                                          3.      You must file the entire writ application form, including those sections that do not. ·
h
,<;.:
         .....     -~·.      -··
                                                                · apply to you. If any pages are missing from the form, or if the qu~stions have been ...
                                                                  renumbered or omitted, your entire application may be dismisscJ as non-compliant:

                                                          4.      You must make a separate application on a separate form for each judgment of
                                                                  conviction you seck relief froln. Even if the judgments were enteted in the same
                                                                  court on the same day, you must make a separate application for bach one. ·· •
                                                                                                                                                            .....

                  ..·.:·                                  5.      Answer every item that applies to you on the form. Do not attach; any additional
                                                                  pages for any item.

                                                          6.      You must include aU grounds for relief on the appl~cation form as providt~d by the
                                                                  instructions under item 17. You must also briefly summarize the \facts of your claim
                                                                  on the application form as provided by the instruction~ under item 17. Each ground
                                                                  shall begin on a new page, and the recitation of t.he facts supporti~g the ground shall
                                                                  be no longer tban the two pages provided for the claim in the fonr.
                                                                                                                                              I


                                                          7.        Legal citations and arguments may be made in a separate memor~ndum that
                                                                    complies with Texas Rule of Appellate Procedure 73 and does notlexcecd 15,000
  ....    , ...    ,.. , ,
  «<..... 1............. ~~· .. ···-·~--·- ............
                                                                ... w~_r:_<ts Jf. ~-41-'~P.!It.~r~gen~r.~~~d Qf. ..S.Q.p3gesJf.not.... ........ -
                                                          8.     You must verify the application by signing either the Oath Before Notary Public or
                                                                 the Inmate's Declaration, which are at the end oftbis form on pages ll and 12. You
                                                                 may be prosecuted and convicted for aggravated perjury if you m~ke any false
                                                                 statement of a material fact in this application.                \
                                                                                                                                                  I
                                                          9.     When the application is fully completed, ,mail the original to the district clerk of the
                                                                 county of com'iction. Keep a copy .of the application for your reco·rds.

                                                          10.    You  m~st notify the district clerk M the county of conviction of   an~ change in
                                                                 address after you have filed your application.                           ·I          .




                                                                                                                                                      Rev. 01/14/14
                                                                                                 :
                                                                                                 I
                                               Case No.                                        I
                                   (The Clerk of the convicting court will till tillS hne m. )    1
                                                                                                  I

                                                                                                  !
                                                                                                  I
                                                                                            I     I
                                lN THE COURT OF CRIMINAL APPEALS OF TEXt\S
                                                                                                  I
                               APPLICATION FOR A WRIT OF HABEAS CORPlfS
                             SEEKING RELIEF FROM FINAL FELONY CONVICTION
                            UNDER CODE OF CRIMINAL PROCEDURE.' ARTICLE
                                                                    - i t 1.07
                                                                                                  I
            NAME:         Isaias L. Palacios                                                      I
            DATE OF Bl RTH: . . :2::.!/.. .:0:..:6:.!./-=1:.:9.. :.7. . :4_ _ _ _ _ _ _ _ _ _ _ _; - - - - - - - -

            PLACE OF CONFINEMENT:                 TDCJ- ID Wallace Unit
                                                                                                      I
            TDC.J-CID NUMBER: #1709341                               Sl D NUMBER: ___;;..U=n=k=n;...;;;o"""'w'""'n'------

            (I)    This application concerns (check all that apply):

                   iXI     a conviction                     0        parole

                   0       a sentence                        0       mandatory supervision
                                                                                                      I
                   0       time credit                       0                 .
                                                                     out-o f -ttme appea I or petltton
                                                                                               I • •   &'
                                                                                                       .or
                                                                     discretionary review             I
                                                                                   .                  I
                                                                                                      I

            (2)    What district court entered the judgment of the conviction you w~nt relief from'!
                   (Include the court number and county.)                           i

                                                                                                      I
                         142nd Judicial District, Midland County,                               Te~as


            (3)    What-was-th'e case number in the trial court?
                                                                                                      I
                         CR-36,477 and CR-36,475                                                      I·
            (4)    What was the name of the trial judge'!


                         Honorable George D. "Jody" Gilles




.
it


[

I   '
        '   Effective: Januarv 1, 2014
 '
'


L                                                                                                          Rev. 01!14/14
"'
t'

r··
                                                                                                               i
                                (5)    Were you represented by counsel? If yes, provide the attorney's         ~a me:
                                                                                                               I
                                         Jeffrey T. Robnett, Attorney At Law


    '           , .......   .   (6)    What was the date that the judgment was entered'?
'))~""·   ,·. :.. ·:·!'




                                         March 24-·· ·201-1- · ·    4
                                                                        --·   •




                                (7)    For what offense \\'·ere you convicted and what was the sentence?
                                                                                                               I



                                         Two Counts of Aggravated Assault, 20yrs.
                                                                                                                 I


                                (8)                                                                          iJ
                                       If you were. sentenced on more than one count of an indictment I the same court at
                                       the same time, what counts were you convicted of and what was the sentence in each
                                       count'?                                                        '               ·


                                         Aggravated Assault CR-36,477                        20yrs.                                            ,"   •-.;.··




                                        ·Aggravated Assault CR-36,475                        20yrs.

                                (9)    What was the plea you entered'? (Check one.)

                                            0 guilty-open plea                    0 guilty-plea bargain
                                            ~ not guiltv                          0 nolo contendere/no contest

                                       If you entered di.fferent pleas to counts in a multi-count indictmcL, please explain:
                                        .    N A                                  .                                I

                                                                                                      ---- - r- -·                .   ..____...,..,,.._.._.,._..
                                                                                                                                                          . .. -
                                                                                                                                                         ··~




                                (10)   What kind of trial did you have?

                                            0 no jury                             0 _jury for guilt and punishmJnt
                                                                                  ~ jury for guilt, judge for purhshmcnt

                                                                                                                   1




                                                                                      2


                                                                                                                        Rev. 0L'14/J4
                       (ll)   Did you testify at trial? If ) es, at what phase of the trial did j·o u ltesti fy '!
                                                                                                                   I
                               No


                       (12)   Did you appeal from the judgment of conviction'?

                              KJ yes                                   0 no

(:

                              If you did appeal, answer the following questions:
                                                                                                                   I
                                                                                                                   I

                              (A) What court of appeals did you appeal to'? Eleventh Distr~ct of Texas
                                                                            Eastland Texas
                              (B) What was the case number'? 11-11-00084-CR, 11-il-00085-CR, 11-11-00086-CR
                                                                                                                   I

                              (C) Were you rcpre.scnted by counsel on appeal? If yes, provide the attorney's        1

                                    name:
                                       Mark H. Dettman, Attorney at Law                                            I   I

                                                                                                                    i
                              (D) What was the decision and the date of the decision'! Af f irm~d April 11,2013
     ,:.'\

                                                                                                                    I
                       (13)   Did you file a petition for discretionary review in the Court of Cr iminal Appeals'?
                                                                                                                       1
                                                                                                                       I

                              Kl yes                                   0 no                                            I
                                                                                                                       I


                              If you did file a petition for discretionary review, answer the foll1wing questions:

                              (A) What was the case number?              . .;:P-=D:.. -_;0::..:5::..:2=-=..2_-..=.1. :::;3_ _ _ _ _ _ _ _ _ _ __
                                                                                                                       I
                                                                                                                       I1
                              (B) What was the decision and the date Ofthe dccision'?Refuse d August 21,2013

                                                                                                                       I
                       (14)   Ha,·e you previously filed an application for a writ of habeas corpus under Article
         .. ,
~-·             ----          11.07 ofthe-T-exas€ode·of€riminaf·Procedurc challenging this dmvh:tion'!
                                                          .     .                                                          I

                              10 yes                                   0 no                                                I
                                                                                                                           I
                                                                                                                           I
                              lf you answered yes, answer the following questions:                                         1

                                                                                                                           I
                              (A) \Vhat was the Court of Criminal Appeals' writ number'? N/ ~ Still Pending
                                                                                                                           I
                                                                                                                           I




                                                                          3



                                                                                                                               Rev. 01/14/14
-~··. 1' . '




                                  (17)   Beginning on page 6, state concisely every legal ground for your c.laim that you arc
                                                                                                                                        .:.
                                         being unlawfully restrained, and then briefly summarize the fact~ supporting each
                                                                                                                                   ·~

{·     .··
                                         ground. Y()U must present each ground on the form application and a brief
                                         summary of the facts. If your graund.~ attd brief summary of the j~cts lra•~e ttot been
                                         presemed on the form applicatio11. the Court wi1111ot cmtsitler your grouml.!ii.
                                         If you have more than four grounds, use pages .14 and 15 of the form, which you
                                         may copy as many times as needed to give you a separate page fo~ each ground, with
                                         each ground numbered in sequence. The recitation of the facts supporting each
                                         ground must be no longer than the two pages provided for the gr~und in the form.
                                                                                                            I
                                         You may include with the form a memorandum of law if you wan~ to present legal
                                         authorities, but the Court wiU not consider grounds for relief set out in a
                                         memorandum of law that were not raised on the form. The citati~ns and argument
                                         must be in a memorandum that complies with Texas Rule of AppJUate Proc~dure 73
                                         and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
                                         are challenging the validity of your conviction, please include a su'mmary of the facts
                                         pertaining to your offense and trial in your memorandum.           J




                                                                                                            II

             .....   ""
--....:;.;..-o!-- -----.. . ·~-




                                                                                5




                                                                                                                   ReY. 01/14/14
                                                                                                  I

                                             GROUND ONE: .\Applicant's 5th and 14th Amendment Constitional
                                             Rights to the United States were Violated.           I



                                                                                                  I
,,~      ...... .                            FACTS SUPPORTING GROUND ONE: The prosecution wi th:held exculpatory
-~                     ... - -· .   --~~'"

~.-~ ,:
                                             as well as impeachment evidence that was material!            t~   the applicant';:--
t~.•~~
~               .I·.




                                             defense theory, and therefore, violated applicant!'s 5th and 14th


                                             Amendment Rights to the United States Constitutio!n.
                                                                                                      I ,
                                                (See Supplemental 11.07 Application with Brie~ In Support)
                                                                                                      I

                                                                                              /       j


 !':j~ •..                                                              ( Pages 1-9,.)                I
 : .• !
                                                                                                      I
                                                                                                      I .
                                                                                                      I
                                                                                                      II

                                                                                                      I




              '····




                                                                            6



                                                                                                                Rev. 01/14!14
~-.,




~.!:'0'   • • .,      .




            ''!

,.;._., ... ~-· ~.        "'-'".




~...




              ·.·/'




                                   7



                                       Rev. 0 lil4/l4
                GROUND TWO:




                                                                                    ···rI -
                FACTS SUPPORTING GROljNO TWO:
   '._<'




                                                                                                                     .- , .. ·-~   "~·.




                                                                                                                                   ''




-.•.\,.,   ,.




                                                                                                                 '      j




                ~-~--~----=·---~- - - - - -=- =- - --~--.---~-- ~---·--·=--·---~-
                                                - --===·
                                                      ....                    .
                                                                  ----·"'""=--'-  ~--~:~~----...::.:;.;;;_;.;._:                    ___




                                                                                       I

                                                                                       I




                                                             8



                                                                                              Rev. 0 !i 14/ 14
.. > <·



                                                                 •       >!.i."'




         .
'":'!.·•-~ \>~...:'   ~-- .•·

 ...
~-------·                                               -~-


                                    I




                                                        .....'"!.~   ,. . . . . . .

                                    I




~'   ....   ~·-·

       ·--




                                9



                                        Rev. Ol/14iJ4
  L"   '{




                                  GROUND THREE:




                                  FACTS SUPPORTING GROUND THREE:




                  -,   _·:;;.·_                                                           .. ,,   .. .-.., ...




::=I
',''



;~ J     '




J'."




 -··.'




..,_         ..
~~..--.--




                                                                   10



                                                                        Rev. 0 l: 14!14
                                                                                            ...-;:
 ~     ··.    ,,                                                                              :__ :<',.   •·




--~----.                                                -   .   :
                                                                '




                                                                                           •·· ~-~:,I' •
                                                                                         .. ,:,.· •-;-.·
r·./"·.i,,,'                                                                                  • ·t ,           I•




                                                                                          ·' :.~




             _.,·.




                     --....--,---------,..._--------------:--------                 ..
                                                                                ---~ --~-----........




                                           II



                                                                    Rev. Oli14:l4
                         ·.·.. :;-:·
                              .:~~.   ·•
                          ' .




                                           GROUND FOUR:                                                                           ,:~.




                                                                                                                                  ~   ..,.   ··~·   ..:. tf.?.




        :  ..       '




                         _,     .




  :··.,·




~: ··~.~
1,,,)
             ...:· ...
                                                                                                I
                                                                                           I
                                                               -· ---------- ·- -·---------r----------· ····- - -·
                                                                                                I




                                                          12



                                                                                                             RcY.    0 I 114/14
            . ·. :~:·
                                                                                                    ; ,...
                                                                                                    I
                                                                                         ' ' - t: ' ~      :

                                                                                 i:               .,
                                                                                 ··:·.         .'::..<,)




                                                             I


                                                            ·I

'··



 ,.
,..,.._,   __              ... ___,,.. .............




           ·~-~-·




 . '
  .( ·~·
           ..
                ·~:   .·




                                                       l3



                                                                 Rc\. 01/14/14
r·•:.
t      , ••
                              :·   ._,,~··.                                                       '-''


;t:. ~.·~·

                                              GROlJND:
    ·r._,'



    '··
    -? ·-~    ·.
    '\'

·r"
      .,.·.



                                              FACTS SUPPORTING GROUND:




                   •''·   .




              .t·-.




                                                                         14



                                                                              Rev. 0 l ! 14/ 14
·~.~
;,_.···   .   ;   .~   --~~   .   ...
",..,...··.   ·~·.,
              ',.

~IP-• .._. _ _ _

·,




 .;.




          .
     ···---~---·                        -----~--------~--~~~~--~------~-+----------
                                                                        . .,. I    . -- --·------
                                                                                I
                                                                                I,




                                                                 15



                                                                                     Rev. 01114/!4
                                                                                                                                     I
                                                     \VfiERF.FORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
                                                          RELIEF TO \VHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

                                                                                            VERIFICATION                             I
                                                                                                                                     I


                                                                This application must be verified or it will be dismissed for non~compliancc. For
                                                 verification purposes, an applicant is a person filing the application on his o~ her own behalf. A
'     .....                                      pcti ticmer is ~ per~t~n fi Iing. th.c .~pptication on behalf. of an applicant, foLcxa~ple, an applicant's
                                                 attorney. An inmate is a person who is in custody.                                  1


                                                                                                                                     I
                                                              The inmate applicant must sign either the ''Oath Before a Notary Public'' before a
                                                 notary public or the "Inmate's Declaration" without a notary public. If the it~mate is represented
                                                 by a licensed attorney. the attorney may sign the "Oath Before a Notary Public'' as petitioner and
                                                 then complete ''Petitioner's Tnfom1ation.'' A non-inmate applicant must sign' the "Oath Before a
                                                 Notary Public" before a notary public unless he is represented by a licensed dttorney, in which
                                                 case the attorney may sign the verification as petitioner.                    !

                                                              A non-inmate non-attorney petitioner must sign the "Oath Bcforb a Notary Public"
    :·,'',
    ~..~ •. ~.·· ~·~ ....:& ,_..,.~:· .   o..t
                                                 before a notary public and must also complete "Petitioner's Information." A~ inmate petitioner
                                                 must sign either the "Oath Before a Notary Public" before a notary public or :he "Inmate's
                                                 Declaration'' without a notary public and must also complete the appropriate ,"Petitioner's
                                                 lnfonnation.''                                                               I
                                                                                                                                         I
                                                              OATH BEFORE A NOTARY PUBLIC
                                                                                                                                         I
                                                              STATE OF TEXAS
           '   .... -
                  ~-



                                                              COUNTY OF

                                                              -------·---·----                         ____ .being duly sworn. under oath says: "I am
                                                 the applicant I petitioner (circle one) in this action and know the contents of the above
                                                 application for a writ of habeas corpus and, according to my bcliet: the facts s'tatcd in the
                                                 application are tme."                                                             I
                                                                                                                                                                    . ,.,,.
     ' ·~ ~.. ..~~: '-                                                                                                                   I
    ...   ~~~.,_.....__
                          •"'.
                                                                                                                                                                ··-...~-·
                                                                                                                                         I
                                                                                                          Signature of Applicant /J)dtili<;lCr (circl~ one)
                                                                                                                                         I


                                                 SUBSCRIBED AND SWORN TO BEFORE ME THIS                               DAY OF                       20




                                                                                                                   Signatur~   of Notary Public
                                                                                                                                         I
                                                                                                                                         I
                                                                                                                                             I



                                                                                                     16                                      1




                                                                                                                                                 l{ev. 0 l !14/14
                                                                                                                                                  ,_I'?
                                             PETITIONER'S INFORMATION
                                                                                                                        n        .                     I
                                             Petitioner's printed name:Tsc;l./'o. s                                  L IO.Ia c. /0 s                          0   cr "l,t-( (
                                             State bar number, if applicable:                           Pro-Se                                         I

                                             Address:             Wa IIa ee                             thi f-                                      _J
•>   ~"-'::"·
~;_......._      _____.....
                ...           _._.                              _ jb_7) !5;uf~- {;At 1S2£
                                                                Co!«a:uk.Liir-r Lx. ?c;sn
                                             Tclephonc:---L.~--'<-,_/...L.A+----------------
                                             Fax:              Ili/A ----·-----·-·-----
                                             INMATE'S DECLARATION


                                             l,_]5."-Ll<a""r""""q'"-"~s'--'=L"-"a'-Lf6~c::;.ufo.~c-Ll/a..t.__.).S'_ _ _ _ , am the   plicaJ1t! petitioner (circle one) and

                                     being presently incarcerated in                  ltt;;Z::X-12. \.Vq 1/a. cR. ~L.~i::_, declaJe under penalty of
                                                                                                                                                         I
                                     Pe~jury that, according to my bc.licf.. the facts                         stated in the above application clrc true and correct
                                                                                                                                                         I



                                                                                                                         SignedonMc.£.~b'lr- cr _.20 !.tf_.
                                                                                                                    ~~-u.
                                                                                                                        Signature of Applicant I Petitioner (circle one)




                                                                                                                  17




                                                                                                                                                               Rev. 0!/14!14
              PETITIONER'S INFORMATION

              Petitioner's printed nanlt:;-T$ala. S   L. fdlac.I& S"
              Address:   Wall({ ce ih;r't-
                         lb7) 5oufh Fflt j15?s-
                      Clarada-         Ctfv. If. r;qs-tz
                                             T'
              Telephone:    NL..d
              Fax:   --.L-JV~L-"--~A~------
       _,.,                                                                      '

                                                           Signed on   Qe_c_e_~_:ec_i_. 20J!/__.
'   . -~:·'

                                                      ~},f~.·~········---       Signaturc of Petitioner




                                                      18




                                                                                        Rev. ()J!f4!14
