Raul Garza Salazar v. State

ACCEPTED
13-14-00006-CR
THIRTEENTH COURT OF APPEALS
FILED CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 1/7/2015 5:08:45 PM
CORPUS CHRISTI DORIAN RAMIREZ
CLERK
1/7/15
IN THE COURT OF APPEALS
DORIAN E. RAMIREZ, CLERK
BY JParedes
FOR THE THIRTEENTH
JUDICIAL DISTRICT OF TEXAS RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CT.APP. 13-14-00006-CR & 13-14- 1/7/2015 5:08:45 PM
DORIAN E. RAMIREZ
00007-CR Clerk

RAUL GARZA SALAZAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

ON APPEAL FROM:
THE 445TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS
CAUSE NO. 2013-DCR-1700
& 2013-DCR-1701

* * * * * * * * * *
APPELLANT'S BRIEF
* * * * * * * * * *

Larry Warner
Attorney at Law
3109 Banyan Drive
Harlingen, Texas
Phone (956)230-0361
Fax (866) 408-1968
Office@larrywarner.com
www.larrywarner.com
Texas Bar#20871500;USDC,SDTX 1230;
Board Certified, Criminal Law, Texas
Board of Legal Specialization(1983)
ATTORNEY FOR APPELLANT`

APPELLANT REQUESTS ORAL ARGUMENT,
PURSUANT TO TEX.R.APP.PROC.39.7
AND 13TH TEX.APP.(CORPUS CHRISTI)LOC.R.4
Pursuant to Tex.R.App.Proc.38.1(a),Appellant provides the following identity of parties
and counsel:

PARTIES AND INTERESTED PERSONS

1. Victor Ramirez, Attorney at Law, SBOT No.
24048750, 905 E Jackson St.,Brownsville, TX
78520-5923. Phone: (956) 621-2446.
DEFENSE ATTORNEY AT TRIAL

2. Gustavo Garza, Assistant District Attorney, SBOT
No. 07731700, 964 E Harrison St., Brownsville,
TX 78520. Phone: (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

3. Ismael Hinojosa, Assistant District Attorney,
SBOT No. 24041102, 964 E Harrison St.,
Brownsville, TX 78520. Phone: (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

4. Hon. Luis Saenz, Cameron County District
Attorney, SBOT No. 17514880, 964 E Harrison St.,
Brownsville, TX 78520. Phone: (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

5. Larry Warner, Law Office of Larry Warner, SBOT
No. 20871500, 3109 Banyan Circle, Harlingen, TX
78550. Phone: (956) 230-0361.
DEFENSE ATTORNEY AT SENTENCING AND ON APPEAL

-ii-
Pursuant to Tex.R.App.Proc.38.1(b,Appellant provides the following table of contents:

TABLE OF CONTENTS

PAGE
IDENTITY OF PARTIES ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv

STATEMENT OF CASE v

STATEMENT RE ORAL ARGUMENT vi

ISSUES PRESENTED 1-3

STATEMENT OF FACTS 4-7

SUMMARY OF ARGUMENT 8

ARGUMENT 12-39

CONCLUSION AND REQUEST FOR RELIEF 40-41

CERTIFICATE OF SERVICE 42

CERTIFICATE OF COMPLIANCE 43

-iii-
Pursuant to Tex.R.App.Proc.38.1(c),Appellant provides the following index of authorities
arranged alphabetically and indicating the pages of the brief where the authorities are
cited:
INDEX OF AUTHORITIES
CASES PAGES
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Chabot v. State, 300 S.W.3d 768(Tex.Crim.App.2009) . . . . . 21
Clements v. State, 576 S.W.2d 390(Tex.Crim.App.1979) . . . . 13
Duggan v. State, 778 S.W.3d 465(Tex.Crim.App.1989) . . . . . 23
Duncan v. Louisiana,391 U.S.145(1968) . . . . . . . . . . . 35-36
Estrada v. State,313 S.W.3d 274(Tex.Crim.App.2010) . . 3,6,11,19
Ex parte Adams,768 S.W.2d 281(Tex.Crim.App.1989) . . . 2,5,10,25
Ex parte Carmona,185 S.W.3d 192(Tex.Crim.App.2006) . . . . 31-32
Ex Parte Ellis,275 S.W.3d109,126 hn20(Tex.App.--Austin 2008,no
pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Ex Parte Ghahremani,332 S.W.3d 470(Tex.Crim.App.2011) . . . 16-18
Ex Parte Givens, 619 S.W.2d 184(Tex.Crim.App. 1981) . . . . . 39
Hough v. State,828 S.W.2d97,101 hn6(Tex.App.–Beaumont
1992,pet.ref’d) . . . . . . . . . . . . . . . . . . . . . . 13,14
Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252–53 (1887)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Parle v. Runnels,505 F.3d 922(9th Cir.2007) . . . . 3,6,11,36,37
Ramirez v. State,96 S.W.3d 386(Tex.App.–Austin 1992,pet.ref’d)26-27
Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex.App.-San
Antonio 1996, writ denied) . . . . . . . . . . . . . . . . . . 6
Turner v. State,677 S.W.2d 518,523 hn13(Tex.Crim.App.[en banc]1984)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. Bagley, 473 U.S. 667, 681-82, 105 S.Ct. 3375, 87
L.Ed.2d 481 (1985) . . . . . . . . . . . . . . . . . . . . . 17
Webb v. State,341 S.W.3d 415(Tex.Crim.App.2011) . . . . . . . 32
Yates v. State,171 S.W.3d 215(Tex.App.–Houston[1st
Dist.]2005,pet.ref’d) . . . . . . . . . . . . . . . . . . . . 26

-iv-
Pursuant to Tex.R.App.P.38.1(a), Appellant provides the following statement of the case,
stating concisely the nature of the case, the course of the proceedings, and the trial
court's disposition of the case:

STATEMENT OF THE CASE

The defendant was indicted for tampering with

governmental records relating to the testing of and by

Roberto Cadriel and 2 counts of abuse of official

capacity. (Count I, Clerk Record pages 4-5) (Count II,

Clerk’s Record pages 4-5)

The defendant pleaded not guilty and tried the

matter to a jury. (Count I, Clerk’s Record, Page 20)

(Count II, Clerk’s Record, Page 14)

The jury found the defendant guilty as charged.(Count

I, Clerk’s Record, Pages 101-103) (Count II, Clerk’s

Record, Pages 68-70)

The trial court sentenced the defendant to a term of

10 months in the county jail.(Count I, Clerk’s Record,

Page 146-147) (Count I, Clerk’s Record, Page 128-129)

Defendant timely filed his notice of appeal on

December 18, 2013. (Count I, Clerk’s Record, Page 128-

129) (Count II, Clerk’s Record, Page 87-88)

-v-
Pursuant to Tex.R.App.P.38.1(e), Appellant explains why oral argument would be helpful

to the decision making process.

STATEMENT REGARDING ORAL ARGUMENT

A Court of Appeals explained that it allows oral
argument “in order to clarify or expound upon the issues
raised in the.. briefs”. Ex Parte Ellis,275 S.W.3d109,126
hn20(Tex.App.--Austin 2008,no pet.)
If the Court of Appeals were to allow oral argument,
counsel could respond at once to any of the questions any
of the Justices of the Court might have. Since
Magistrates and Counsel would doubtless be most focused
on the law and the facts of this case at the time of any
argument, answering any inquiries at once would resolve
any queries the Justices might have as well as making
clear which issues were dispositive.
Counsel would be prepared to discuss any of the
issues set out in the briefs. The Court of Criminal
Appeals requires counsel to advise it in advance of oral
argument which issue counsel propose to discuss. Counsel
is at the Court’s disposition.

-vi-
Pursuant to Tex.R.App.Proc.38.1(e), Appellant presents this statement of issues presented:

ISSUES PRESENTED

1. The Court of Appeals should grant a new trial in

the interest of justice.

2. The verdict is contrary to the law and the

evidence.

3. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Ernie Hernandez and Raul Salazar retaliated against

county employees by reorganizing county departments.

4. The state presented misleading evidence when the

state said that the defendant denied Susan Marfelino and

Dalia Salinas due process.

5. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Commissioner Ernie Hernandez (unindicted alleged co-

conspirator) and Raul Salazar retaliated against county

employees by reorganizing county departments.

6. The state presented misleading evidence when the

state alleged that the defendant denied Assistant Human

Resources Director Susan Marfelino and Civil Service
INITIAL BRIEF - 1
Coordinator Dalia Salinas due process regarding a

“demotion” that never occurred.

7. The witness failed to identify the defendant prior

to trial. At trial, she denied failing to identify the

defendant. The prosecutor failed to correct the falsity.

Habeas granted. Ex parte Adams,768 S.W.2d

281(Tex.Crim.App.1989) This issue is raised now on

appeal.

8. The State alleged that Commissioner Hernandez and

the defendant caused the placement of an agenda item that

called for the demotion / reorganization of Assistant

Human Resources Director Susan Marfelino and Civil

Service Coordinator Dalia Salinas.

In closing argument, the prosecutor held up a piece

of paper and told the jury that there was an item on the

agenda of the Commissioners’ Court to demote the two

women as retaliation. There was no agenda on that day.

The misleading argument warrants a new trial.

9. Overall conduct by the prosecutor in presenting

misleading argument and abuse of grand jury subpoenas,

inter alia, warrants dismissal of the indictment with

INITIAL BRIEF - 2
prejudice to refile the same.

10. Cumulative error deprived the defendant of a fair

trial. TEX.CONST.,art.I,sec.10 Estrada v. State,313

S.W.3d 274(Tex.Crim.App.2010)

11. Cumulative error deprived the defendant of a fair

trial. U.S.CONST.amend.VI; Parle v. Runnels,505 F.3d

922(9th Cir.2007)

12. The indictment fails to state an offense.

Conviction for conduct which does not constitute an

offense violates due course and due process.

INITIAL BRIEF - 3
Pursuant to Tex.R.App.Proc.38.1(f), Appellant provides the following statement of facts
stating concisely without argument the facts pertinent to the issues of points presented:

STATEMENT OF FACTS

The following issues will be proved up by bills of

exception:

1. The Court of Appeals should grant a new trial in

the interest of justice.

2. The verdict is contrary to the law and the

evidence.

3. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Ernie Hernandez and Raul Salazar retaliated against

county employees by reorganizing county departments.

4. The state presented misleading evidence when the

state said that the defendant denied Susan Marfelino and

Dalia Salinas due process.

5. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Commissioner Ernie Hernandez (unindicted alleged co-

conspirator) and Raul Salazar retaliated against county

employees by reorganizing county departments.

6. The state presented misleading evidence when the

INITIAL BRIEF - 4
state alleged that the defendant denied Assistant Human

Resources Director Susan Marfelino and Civil Service

Coordinator Dalia Salinas due process regarding a

“demotion” that never occurred.

7. The witness failed to identify the defendant

prior to trial. At trial, she denied failing to identify

the defendant. The prosecutor failed to correct the

falsity. Habeas granted. Ex parte Adams,768 S.W.2d

281(Tex.Crim.App.1989) This issue is raised now on

appeal.

8. The State alleged that Commissioner Hernandez and

the defendant caused the placement of an agenda item that

called for the demotion / reorganization of Assistant

Human Resources Director Susan Marfelino and Civil

Service Coordinator Dalia Salinas.

In closing argument, the prosecutor held up a piece

of paper and told the jury that there was an item on the

agenda of the Commissioners’ Court to demote the two

women as retaliation. There was no agenda on that day.

The misleading argument warrants a new trial.

INITIAL BRIEF - 5
 9. Overall conduct by the prosecutor in presenting

misleading argument and abuse of grand jury subpoenas,

inter alia, warrants dismissal of the indictment with

prejudice to refile the same.

10. Cumulative error deprived the defendant of a fair

trial. TEX.CONST.,art.I,sec.10 Estrada v. State,313

S.W.3d 274(Tex.Crim.App.2010)

11. Cumulative error deprived the defendant of a fair

trial. U.S.CONST.amend.VI; Parle v. Runnels,505 F.3d

922(9th Cir.2007)

Appellant has moved the Court of Appeals to extend

the time to file the bills of exception, of which the

Court of Appeals will please take judicial notice.

TEX.R.EVID.201; Stroud v. VBFSB Holding Corp., 917 S.W.2d

75, 78 (Tex.App.-San Antonio 1996, writ denied) (A Court

of Appeals may take judicial notice of its own records.)

Appellant as Applicant has filed an Application for

a Post-Conviction Writ of Habeas Corpus, pursuant to

TEX.CODE CRIM.P.art. 11.09. Appellant as Applicant is

asking the Trial Judge to hold a hearing on his Bills of

Exception at the same time that the Trial Judge holds a
INITIAL BRIEF - 6
hearing on his Application for Post-Conviction Writ of

Habeas Corpus, pursuant to TEX.CODE CRIM.P.art. 11.09.

Appellant here seeks leave of the Court of Appeals to

supplement this brief with a reference to approved or

qualified bills of exception once that hearing has taken

place and once the Trial Judge has taken action on

approving or qualifying the verified bills.

12. The indictment fails to state an offense.

Conviction for conduct which does not constitute an

offense violates due course and due process.

INITIAL BRIEF - 7
Pursuant to Tex. R. App. Proc. 38.1(g), Appellant provides the following summary of the
argument, a succinct and accurate statement of the argument made in the body of the brief
not merely a repetition of the issues or points presented for review:

SUMMARY OF ARGUMENT

The indictment fails to state an offense. While there

was no motion and ruling on a motion to quash, the Court

of Appeals should consider the inadequacy of the state’s

pleading in determining if Appellant had a fair trial.

It should also consider whether this pleading is one

which does implicate due course.

It should also consider whether this pleading is one

which does implicate due process.

Yes, it is true that the state amended its

constitution re such inadequate pleadings and the failure

of the defense to move to quash. A state cannot avoid

the requisites of federal due process by amending the

state’s constitution. The state’s own requirement of due

course will not abide a conviction and confinement for

acts which do not constitute an offense...elsewise we

should still have abode in the penitentiary for those

convicted of homosexuality, those culpable of seduction

upon false promise of marriage, etcetera.

INITIAL BRIEF - 8
 The following things deprived the defendant of a fair

trial, considering either due course or due process:

1. The Court of Appeals should grant a new trial in

the interest of justice.

2. The verdict is contrary to the law and the

evidence.

3. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Ernie Hernandez and Raul Salazar retaliated against

county employees by reorganizing county departments.

4. The state presented misleading evidence when the

state said that the defendant denied Susan Marfelino and

Dalia Salinas due process.

5. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Commissioner Ernie Hernandez (unindicted alleged co-

conspirator) and Raul Salazar retaliated against county

employees by reorganizing county departments.

6. The state presented misleading evidence when the

state alleged that the defendant denied Assistant Human

Resources Director Susan Marfelino and Civil Service

INITIAL BRIEF - 9
Coordinator Dalia Salinas due process regarding a

“demotion” that never occurred.

7. The witness failed to identify the defendant prior

to trial. At trial, she denied failing to identify the

defendant. The prosecutor failed to correct the falsity.

Habeas granted. Ex parte Adams,768 S.W.2d

281(Tex.Crim.App.1989) This issue is raised now on

appeal.

8. The State alleged that Commissioner Hernandez and

the defendant caused the placement of an agenda item that

called for the demotion / reorganization of Assistant

Human Resources Director Susan Marfelino and Civil

Service Coordinator Dalia Salinas.

In closing argument, the prosecutor held up a piece

of paper and told the jury that there was an item on the

agenda of the Commissioners’ Court to demote the two

women as retaliation. There was no agenda on that day.

The misleading argument warrants a new trial.

9. Overall conduct by the prosecutor in presenting

misleading argument and abuse of grand jury subpoenas,

inter alia, warrants dismissal of the indictment with

INITIAL BRIEF - 10
prejudice to refile the same.

10. Cumulative error deprived the defendant of a fair

trial. TEX.CONST.,art.I,sec.10 Estrada v. State,313

S.W.3d 274(Tex.Crim.App.2010)

11. Cumulative error deprived the defendant of a fair

trial. U.S.CONST.amend.VI; Parle v. Runnels,505 F.3d

922(9th Cir.2007)

12. The indictment fails to state an offense.

Conviction for conduct which does not constitute an

offense violates due course and due process.

INITIAL BRIEF - 11
Pursuant to Tex. R. App. Proc. 38.1(h), Appellant provides the following argument or the
contentions made, with appropriate citations to the authorities and to the record:

ARGUMENT

1. The Court of Appeals should grant a new trial in

the interest of justice.

2. The verdict is contrary to the law and the

evidence.

3. The state presented misleading testimony

calculated to harm the defendant by putting on testimony

that Ernie Hernandez and Raul Salazar retaliated against

county employees by reorganizing county departments.

The reorganization was never suggested by Ernie

Hernandez. Rather, the reorganization was at the

instance Juan Hernandez and Arnold Flores. This is

important because at Garza-Salazar’s trial, the state

consistently advanced evidence against Ernie Hernandez,

averring that Ernie Hernandez and Raul Garza-Salazar were

co-conspirators in getting an answer key to the civil

service examination to Hernandez’ brother in law,

Cadriel, and in retaliating against the two women who

were to be demoted or reassigned.

INITIAL BRIEF - 12
 There was never any demotion of any human resources

personnel.

This harmed the defendant because it was a crime not

charged in the indictment. The crime charged was

tampering with witnesses, Susan Marfileno and Dalia

Salinas, by demoting them.

But they were not demoted.

It is fundamental error for one to be convicted of a
crime not charged in the indictment. Clements v.
State, 576 S.W.2d 390(Tex.Crim.App.1979)

Defendant was convicted in the 174th Judicial
District Court, Harris County, George D. Taylor,
Special Judge, of aggravated robbery, and he
appealed. The Court of Criminal Appeals, Dally, J.,
held that fundamental error was committed so as to
mandate reversal where instruction authorized a
conviction for a theory not charged in indictment.
Reversed and remanded. Clements v. State, 576 S.W.2d
390(Tex.Crim.App.1979)

It is error for the prosecutor to charge the

defendant in final argument with a crime not specified in

the indictment. Hough v. State,828 S.W.2d97,101

hn6(Tex.App.–Beaumont 1992,pet.ref’d)

Hough was charged with “illegal expenditure”. Hough

at 97. In final argument the prosecutor accused him of

selling cocaine:

INITIAL BRIEF - 13
 “Point of error three alleges that the
prosecutor made improper argument in urging the
jury to convict the appellant of crimes of which
he was not charged in the indictment. The error
allegedly occurred during final argument when
the Assistant District Attorney stated:
Which do you think is the greater danger in
Lufkin, Texas? That your sons and daughters
and your grandparents are going to be caught
up with Roys threat or your third graders
and forth [sic] graders are likely to find
someone selling cocaine?”Hough v. State,828
S.W.2d97,101 hn6(Tex.App.–Beaumont
1992,pet.ref’d)

The Court found the argument error, but harmless, in

view of the impact on the jury, the jury arguments, and

the evidence at trial. In Hough, most of the evidence was

about illegal investment, financing dope deals, not

selling cocaine. In Salazar, the indictment did not

charge Salazar with retaliating against witnesses or

tampering with witnesses. It charged him with tampering

with a public document.

There probably was an adverse impact on the jury. A

jury might understand trying to get someone a job who was

living in his truck and who could not read or write. It

would not pass over demoting two women who were potential

witnesses and trying to pass it off as reorganization.

INITIAL BRIEF - 14
 The jury arguments emphasized generalized corruption

in Cameron County and implications of what Ernie

Hernandez did. One argument did accuse Salazar of a crime

not charged in the indictment...retaliation against the

two women who were demoted. (But they were not demoted.)

The evidence was equivocal. All the state’s

witnesses got immunity. Ernie Hernandez, the averred

mastermind, did not testify, claiming a privilege not to

testify against himself. The main witness, Cadriel, who

could neither read nor write, had said that another

person gave him the answer key. Threatened by the

prosecutor, and told by the prosecutor who the prosecutor

believed had given Cadriel the answer key, Cadriel then

changed his story and said that Salazar gave Cadriel the

answer key. This is not the compelling evidence of

Hough.

This Court should find that the argument was

erroneous but that it was not harmless beyond a

reasonable doubt. The District Court should order a new

trial.

The misleading evidence offered by the state

INITIAL BRIEF - 15
 And it is not true that Ernie Hernandez was the one

who placed an item on the commissioners’ court agenda for

November 21, 2013. The trial ended on November 15, 2013.

The person who placed the item on the commissioners’

court agenda for November 21, 2013 was Juan Hernandez, of

the Civil Division, the requester. The one who wanted

the item placed on the agenda was Arnold Flores, the

Human Resources Director.

Presenting materially misleading evidence violates

the guaranties of due course and due process.

TEX.CONST.art.I,secs.13 & 19 and U.S.CONST.amend.XIV. Ex

Parte Ghahremani,332 S.W.3d 470(Tex.Crim.App.2011)

The applicant applied for writs of habeas corpus,

arguing that the State unconstitutionally suppressed

the July police report FN5 and presented false

testimony in violation of the Fourteenth Amendment. The

applicant argues that the State gave the jury the

misleading impression that all of L.S.'s psychological

treatment was the result of the applicant's assault,

but that the relationship between L.S. and Davis could

INITIAL BRIEF - 16
have been partly responsible for L.S.'s need for

treatment. FN5. See Brady v. Maryland, 373 U.S. 83, 87,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process is

violated when the State refuses to disclose requested

evidence that is favorable to the defendant regarding

either punishment or guilt); United States v. Bagley,

473 U.S. 667, 681-82, 105 S.Ct. 3375, 87 L.Ed.2d 481

(1985) (due process requires reversal if the State,

regardless of whether the defense made a request,

failed to disclose relevant, mitigating evidence to the

defendant).

The false evidence in Salazar was that the two

women had been demoted...and that Ernie Hernandez and

Salazar were responsible. But the two women were not

demoted. But the impact on the jury was that they had

indeed been demoted ...and that Ernie Hernandez and

Raul Garza Salazar were responsible for the retaliation

against these witnesses or this tampering with these

witnesses.

There was no doubt that Ghahremani had vaginal

intercourse with the virgin 13-year old girl. Even so,

INITIAL BRIEF - 17
presenting false and misleading evidence of the cause

of psychological problems required a new punishment

trial.

In Salazar the misleading evidence was presented at

the guilt/innocence phase of the trial; the Court

assessed the sentence. The Court should grant a new

trial on guilt or innocence, since the misleading

evidence tainted the guilt innocence trial.

The District Court should grant a new trial on

punishment, as was done in Ghahremani. While Judges are

presumed to disregard irrelevant evidence, that is

different from the state’s presenting misleading

evidence or simply false evidence.

4. The state presented misleading evidence when the

state said that the defendant denied Susan Marfelino

and Dalia Salinas due process.

Both women got due process. Each was given a

notice. On Nov. 23, 2013 Arnold Flores sent both an

email telling county employees that he was going to

reorganize and to come and talk to him if anyone had a

question.

INITIAL BRIEF - 18
 ***

The state’s presenting false testimony, whether by

design or by carelessness, warrants a new trial.

“We have judicially noticed the TDCJ regulation.
This information, now properly before this Court,
demonstrates there is a fair probability that
appellant's death sentence was based upon
Merillat's incorrect testimony as evidenced by
the jury's notes. See Simmons, 512 U.S. at 160,
165-66, 114 S.Ct. 2187 (defendant "was prevented
from rebutting information that the [jury]
considered, and upon which it may have relied, in
imposing the sentence of death" and jury "was
denied a straight answer about [defendant's]
parole eligibility even when it was requested" in
a jury note). We believe that the Supreme Court
would find this to be constitutionally
intolerable. See id.; Johnson v. Mississippi, 486
U.S. 578, 590, 108 S.Ct. 1981, 100 L.Ed.2d 575
(1988) (death sentence based on "materially
inaccurate" evidence violates Eighth Amendment);
Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct.
1252, 92 L.Ed. 1690 (1948) (it violates due
process to base conviction on "materially untrue"
information "whether caused by carelessness or
design"); Ex parte Chabot, 300 S.W.3d 768, 771
(Tex.Crim.App.2009) (State's unknowing use of
perjured testimony violates due process); Ex
parte Carmona, 185 S.W.3d 492, 497
(Tex.Crim.App.2006) (plurality op.) (revocation
of community supervision based solely on perjured
testimony violates due process). After having
independently examined the merits of the State's
confessed error, we are satisfied that appellant
presents a meritorious substantive claim in point
of error two.” Estrada v. State,313 S.W.3d
274(Tex.Crim.App.2010)

INITIAL BRIEF - 19
 The women got due process. It was not true that they

did not. It was not true that Ernie Hernandez and Raul

Garza Salazar deprived them of notice and an opportunity

to be heard. This evidence harmed Salazar because the

state’s theory was that Salazar gave Cadriel the answer

key and retaliated against the two women as potential or

actual witnesses.

The result should be the same as in Estrada, a new

trial on punishment.

5. The state presented misleading testimony calculated

to harm the defendant by putting on testimony that

Commissioner Ernie Hernandez (unindicted alleged co-

conspirator) and Raul Salazar retaliated against county

employees by reorganizing county departments.

The reorganization was never suggested by Commissioner

Ernie Hernandez or Raul Salazar as alleged by the State

and supported by inaccurate testimony by the Cameron

County Administrator Pedro Sepulveda and Assistant County

Administrator David Garcia. Rather, the proposed

reorganization was a result of long term planning by Human

Resource Director Arnold Flores, and approved and

INITIAL BRIEF - 20
submitted by County Attorney Juan Gonzalez.

The testimony during trial was that Robert Lopez was

responsible for ordering unindicted co-conspirator Carmen

Vera to take the test for unindicted co-conspirator

Roberto Cadriel. The existence or nonexistence of the

defendant’s participation as to “ordering” Carmen Vera to

take the exam is an element of the offense that the State

has the burden of proving beyond a reasonable doubt. The

introduction of inaccurate testimony influenced the jury

by misleading the jury to believe that this

“reorganization”, that actually never occurred, was caused

by the defendant. The alleged retaliation described by

the State as a “reorganization” would have led any

reasonable juror to convict on emotion and not consider

the facts or any evidence favorable to the accused.

Presentation of false testimony by the state deprives

the defendant of due process of law, even if the state is

unaware that it is false. Chabot v. State, 300 S.W.3d

768(Tex.Crim.App.2009) After trial in Chabot there were

dna tests. The state’s witness had said that the state’s

INITIAL BRIEF - 21
witness had not had sex with the victim. The dna showed

that the state’s witness had indeed had sex with the

victim. The dna also excluded the defendant as the one who

left the sperm. The state’s witness was the only one to

place defendant at the crime. A new trial was ordered.

Retaliating against witnesses or pre-emptively

attacking in order to tamper with those witnesses is some

evidence from which a juror could conclude that Salazar

must have given Cadriel the answer key because Salazar

tampered with those two witnesses.

But there was no tampering. There was no retaliation.

Due course and due process provide the same

protection. TEX.CONST.art.I,secs.13 &19 While the Texas

Constitution is textually different in that it refers to

“due course” rather than “due process,” we regard these

terms as without meaningful distinction. Mellinger v. City

of Houston, 68 Tex. 37, 3 S.W. 249, 252–53 (1887).

6. The state presented misleading evidence when the

state alleged that the defendant denied Assistant Human

Resources Director Susan Marfelino and Civil Service

INITIAL BRIEF - 22
Coordinator Dalia Salinas due process regarding a

“demotion” that never occurred. (See Exhibit 1 page 6-9)

The newly discovered evidence will show that both

women were afforded due process. On October 23, 2013

Human Resource Director Arnold Flores sent both employees

an email advising of his intent to reclassify the

department to enhance operational efficiency of the

department. And as of today’s date no actual reassignment

of duties or reorganization has been carried out. Mr.

Flores also provided each, in writing, an opportunity to

contact him if either employee had questions.

It is reversible error for the prosecutor not to

correct material misstatements by state’s witnesses.

Duggan v. State, 778 S.W.3d 465(Tex.Crim.App.1989) The

prosecutor left uncorrected a statement by accomplices

that they had not been promised anything for their

testimony. They had indeed been promised leniency for the

testimony. The matter was remanded for a harm analysis.

Throughout the trial the state alleged

tampering/retaliation, and urged the jury to find Salazar

guilty of providing the answer key to Cadriel because

INITIAL BRIEF - 23
Salazar had tampered with/retaliated against witnesses.

But there was not tampering or retaliation. The District

Court should find harm and should order a new trial.

7. The new evidence will further show that on

October 24, 2013, Civil Service Coordinator Dalia Salinas

responded to the proposed changes via email and addressed

her concern directly to Arnold Flores. In Dalia Salinas’

response there is no mention or suggestion of Commissioner

Hernandez or the defendant participating in retaliation

against Mrs. Salinas as alleged by the State.

On October 24, 2013, Civil Service Coordinator Dalia

Salinas further asserted a complaint to Cameron County

Director Pedro Sepulveda against Human Resource Director

Arnold Flores for the suggested reclassification. The

complaint never suggested the involvement of Commissioner

Ernie Hernandez or the defendant as suggested by the State

and supported by inaccurate testimony by the Cameron

County Administrator Pedro Sepulveda and Assistant County

Administrator David Garcia. In fact her concern was

regarding a new hire, Anthony Lopez, taking over her

duties and alleging discrimination.

INITIAL BRIEF - 24
 The witness failed to identify the defendant prior to

trial. At trial, she denied failing to identify the

defendant. The prosecutor failed to correct the falsity.

Habeas granted. Ex parte Adams,768 S.W.2d

281(Tex.Crim.App.1989)

The moral of Adams is that presentation of false

evidence may even be brought up on collateral attack. Here

Salazar presents the matter on direct appeal. The result

should be the same as in Adams, a new trial.

8. The new evidence will further show that the

State’s allegation that Commissioner Hernandez and the

defendant caused the placement of an agenda item that

called for the demotion / reorganization of Assistant

Human Resources Director Susan Marfelino and Civil Service

Coordinator Dalia Salinas, as a direct result of the

State’s subpoenas having been issued and served on the two

aforementioned persons prior to trial. When in fact, the

newly discovered evidence will show that a proposed

memorandum to reassign duties was prepared on October 15,

2013 and prior to the execution of the State’s subpoenas

which were executed on October 24, 2013.

INITIAL BRIEF - 25
 Yates v. State,171 S.W.3d 215(Tex.App.–Houston[1st

Dist.]2005,pet.ref’d) The state’s expert on post-partum

depression testified that he had been on television and

discussed postpartum depression. He had not. The state

used his testimony to argue against Yates’ post partum

defense. Habeas granted. New trial ordered.

The result here should be the same as in Yates. The

harm here is worse, since, in closing argument, the

prosecutor held up a piece of paper and told the jury that

there was an item on the agenda of the Commissioners’

Court to demote the two women as retaliation. There was

no agenda on that day. There had been a draft, but no

final agenda. Using a draft agenda was misleading because

it was merely potential, rather than actual, as the

prosecutor portrayed it.

This is the difference between, “The defendant had a

gun” and “The defendant shot the clerk with the gun he

had”.

Failure to correct material misstatements which might

have impacted the jury’s verdict requires a new trial.

Ramirez v. State,96 S.W.3d 386(Tex.App.–Austin

INITIAL BRIEF - 26
1992,pet.ref’d) The complaining witness in the criminal

case had hired a civil lawyer to file suit. At the

criminal trial she said she had not hired a lawyer. But

she had. The prosecutor knew. He did not correct the

misstatement. The Third Court held that it was reasonably

likely that the misstatement affected the jury’s verdict.

The capital murder conviction was reversed. Ramirez v.

State,96 S.W.3d 386(Tex.App.–Austin 1992,pet.ref’d)

In Ramirez, the witness’ statement that she had not

done something was not so. In Salazar, the prosecutor’s

representation that there was an agenda in existence to

retaliate against witnesses was a mere draft, simply

potential. The prosecutor’s argument effectively urged the

jury to find Salazar guilty because of the impending

retaliation. But there was no agenda in being. And there

was no demotion. And there was no retaliation. So, the

draftness of the paper which the prosecutor waived in

front of the jury was misleading, because at the time of

the argument there was no agenda in being.

9. Defendant contended (erroneously) that the newly

discovered evidence would show that the State’s allegation

INITIAL BRIEF - 27
that Roberto Cadriel received a benefit in the form of a

paycheck and/or insurance and /or retirement was not true.

Defendant finally found out that Cadriel did receive

a benefit, one check. But the prosecutor used grand jury

subpoenas to impede discovery. This prosecutorial conduct

warrants dismissal of the indictment with prejudice to

refile the same.

“Benefit” is an element charged by the State and

must be proved beyond a reasonable doubt. On December 19,

2013, an open records request was made to the Cameron

County Auditor’s Office, Martha Galarza requesting the

production of copies of any checks, cancelled checks,

deposits, electronic transfers, bank statements,

documents, notes, memos, emails, texts, or faxes that

would tend to show any item of benefit provided to, paid

to, given to, conveyed to, or the like to the following

person and/or entity for the year 2011 and listed below:

Robert Cadriel, Robert Cadriel – D.O.B. 6/6/57, Robert

Cadriel- XXX-XX-2797, Robert Cadriel – DL# - Tx.02449646,

IBC Bank Account No. – 11011100525 Routing No. –

114911580.

INITIAL BRIEF - 28
 The deadline to respond was December 30, 2013. The

Auditor’s Office failed to respond and on January 2, 2014

a grand jury subpoena was served on the Auditor’s Office

which prohibited the dissemination of the requested

information.

The systematic method that the State was utilizing

regarding the grand jury process was interfering with the

ability of the defendant to discover exculpatory evidence

favorable to the accused. In support of this allegation

the defendant will further show that the State issued

grand jury subpoenas for the following persons: Juan

Gonzalez-County Attorney and Arnold Flores – Director of

Human Resources, immediately after learning that the

truths which are asserted in the present motion were made

in efforts to prevent disclosure of said truth to any

inquiring person / entity.

The following actions by the State deprive the

defendant of his 5th, 6th, and 14th Amendments of the United

States Constitution.

The defendant further alleged that the State,

INITIAL BRIEF - 29
materially misrepresented the aforementioned items above

during its closing. The State acted recklessly and at

minimum, negligently, by presenting to the jury

uninvestigated, inaccurate, and misleading information

which includes: 1) nonexistent retaliation as allegedly

committed by this defendant; 2) nonexistent demotion, 3)

nonexistent deprivation of due process on Susan Marfileno

and Dalia Salinas; 4) nonexistent benefit obtained by any

indicted or unindicted person; nonexistent participation

of defendant placing items of reorganization / demotion of

Susan Marfileno and Dalia Salinas on the Commissioner’s

Court Agenda; and 5) nonexistent retaliation by defendant

in response to Susan Marfileno and Dalia Salinas being

served with subpoenas. In the words of the Third Court in

Ramirez, supra, it is reasonably likely that the

misleading statements and evidence affected the jury’s

verdict.

9. The foregoing and following misuse of the grand

jury subpoenas was part of overall prosecutorial conduct

which warrants dismissal of the indictment with prejudice

to refile the same.

INITIAL BRIEF - 30
 The systematic method in which this inaccurate

information was presented influenced the jury and

presented an “aggravating factor” that would not have

existed had the inaccurate information not been presented.

Counsel for the defendant could not have reasonably

foreseen false testimony, therefore, could in no way have

had an opportunity to prepare for an effective cross-

examination of States witness. This conduct of the State

deprived movant of his 5th, 6th, and 14th Amendment Rights

of the U.S. Constitution. As to the Fifth Amendment (as

applied to the states through the Fourteenth), defense

counsel was unable effectively to confront and cross-

examine witnesses because he could not have anticipated

the cited misleading statements and simply not-true

evidence.

As to the Sixth, defense counsel could not effectively

provide a fair trial and effective counsel in the face of

evidence and statements which were misleading or simply

not true. As to the Fourteenth, such misleading or false

statements or evidence violate the guaranty of due process

of law. U.S.CONST.amend.XIV Ex parte Chabot, supra, at 770

INITIAL BRIEF - 31
hn1, citing Ex parte Carmona,185 S.W.3d

192(Tex.Crim.App.2006)

The protections of due process, in the Union Basic

Law, and those of due course, in Texas’ own Constitution,

are generally coterminous. Usually the due course

protection of the Texas Constitution is congruent with

that of the due process guaranty of the federal

constitution. Webb v. State, 3 4 1 S.W.3d

415(Tex.Crim.App.2011). Salazar complains that his right

to due course of law, promised by TEX.CONST.art.I,secs.13

and 19, were violated by the use of such misleading or

untrue statements or evidence.

10. Cumulative error deprived the defendant of a fair

trial. TEX.CONST.,art.I,sec.10 Estrada v. State,313 S.W.3d

274(Tex.Crim.App.2010) Estrada consistently claimed that

he was denied a fair trial throughout his brief. The

Court of Criminal Appeals found that false testimony was

presented at the punishment stage and ordered a new

punishment trial.

The combination of the presentation of testimony and

evidence and arguments which were at the very least
INITIAL BRIEF - 32
materially misleading, combined with using grand jury

subpoenas to deprive the Trial Court at hearing on Motion

for New Trial of further evidence of misleading evidence

(that Cadriel was in fact never paid a penny by the

county, never got a benefit), aggregate to deprive the

defendant of a fair trial at trial and to deprive him of

due process and due course of law at his hearing on his

motion for new trial. The District Court should order a

new trial.

The Motion for New Trial is effectively part of the

Trial. The defendant is entitled to compulsory process to

obtain witnesses and evidence on his behalf.

U.S.CONST.amend.V; TEX.CONST.art.I,sec.10. The Open

Records Act is like a subpoena. Defendant tried to use it

to get information that Cadriel had never been paid

farthing by Cameron County. The state had to prove that

Cadriel got some benefit...payment as a security guard.

The Auditor, Ms. Gallarza, has that information. Testimony

at the hearing on the Motion for New Trial will show that

she is married to Mr. Garza, the prosecutor in this case.

Testimony at the hearing on the Motion for New Trial will

INITIAL BRIEF - 33
show that the state sued out grand jury subpoenas after

the Open Records Act request was made and further that

because of those grand jury subpoenas the information has

not been disclosed to defendant so that he can present it

at a hearing on the Motion for New Trial.

While Defendant will present evidence and testimony

relating to the Grand Jury subpoenas, the District Court

should take judicial notice of the grand jury subpoenas.

TEX.R.EVID.201 “[A] trial court may take judicial notice

of its own orders, records, and judgments rendered in

cases involving the same subject matter and between

practically the same parties. 1 Ray, Texas Practice, Sec.

186.” Turner v. State,677 S.W.2d 518,523

hn13(Tex.Crim.App.[en banc]1984)

Separately Defendant moves to quash those grand jury

subpoenas in time to present information to the District

Court at hearing on Motion for New Trial that Cadriel was

never paid anything by Cameron County. If the subpoenas

are quashed, the Open Records Act will require Ms.

Gallarza to disclose that information to the Court.

As to depriving defendant of a fair trial as well as

INITIAL BRIEF - 34
due course and due process, “Why sue out grand jury

subpoenas after the trial is over?” There already were

two indictments. The defendant has been tried and a

judgment rendered on a jury verdict. Upon a proper plea

and proof of collateral estoppel or double jeopardy or

both, he cannot be tried for either or both of these

offenses again, save if he himself petitions for a new

trial, as he does. What need then of further grand jury

subpoenas if not to deprive Defendant of the information

the Open Records Act promises?

The District Court should determine that defendant

was denied a fair trial and is being denied the due course

and due process necessary (the Open Records Act

information) to prove up his allegation in the Motion for

New Trial that Cadriel never received a benefit from

Cameron County. The District Court should order a new

trial.

11. Cumulative error deprived the defendant of a

fair trial. U.S.CONST.amend.VI The Federal Constitution

promises a fair trial. That guaranty applies to the states

through the adoption of the post-bellum Fourteenth

INITIAL BRIEF - 35
Amendment. Duncan v. Louisiana,391 U.S.145(1968)

A state court found cumulative error. The state court

found that the cumulative error did not deprive the

defendant of a fair trial. On collateral attack, a United

States Court of Appeals found the state court’s decision

“objectively unreasonable” and granted habeas corpus

[motion to vacate] relief. The Court of Appeals here

should cite the Sixth Amendment promise of a fair trial

and grant the same relief here, a new trial.

In Parle,

“The Court of Appeals, Hawkins, Circuit Judge, held
that state appellate court's conclusion that
cumulative effect of evidentiary errors made during
murder trial did not violate petitioner's due process
rights was objectively unreasonable application of
clearly established federal law, and thus warranted
federal habeas relief.” [Westlawnext’s reporter’s
synopsis,lw] Parle at 922

The United States Court of Appeals reiterated the

governing principle for cumulative error in the light of

the Fourteenth Amendment’s guaranty of due process as well

as the Sixth’s promise of a fair trial:

“Under traditional due process principles, cumulative
error warrants habeas relief only where the errors
have “so infected the trial with unfairness as to

INITIAL BRIEF - 36
 make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637,
643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Such
“infection” occurs where the combined effect of the
errors had a “substantial and injurious effect or
influence on the jury's verdict.” Brecht, 507 U.S. at
637, 113 S.Ct. 1710 (internal quotations omitted);
see also Thomas, 273 F.3d at 1179–81 (noting
similarity between Donnelly and Brecht standards and
concluding that “a Donnelly violation necessarily
meets the requirements of Brecht ”). In simpler
terms, where the combined effect of individually
harmless errors renders a criminal defense “far less
persuasive than it might [otherwise] have been,” the
resulting conviction violates due process. See
Chambers, 410 U.S. at 294, 302–03, 93 S.Ct. 1038.”
Parle at 927 hn9

“The “logical corollary” of this harmless error
doctrine is that trial errors are more likely to be
prejudicial to a defendant—i.e., not harmless—when
the government's case on a critical element is weak.”
Parle at 928 hn11

The District Court will recall the evidence. At first

Cadriel said that someone other than Salazar gave Cadriel

the answer key. Later, after being interviewed again by

the prosecutor, Cadriel, who can neither read nor write,

who made up the story about an injury sustained when he

was a child and is thus suspect for prevarication, changed

his testimony and said that Salazar was the one who gave

Cadriel the answer key.
INITIAL BRIEF - 37
 It is fair to characterize this evidence as weak.

Here is the consequence of that weakness in the light

of cumulative error:

“Accordingly, in determining whether the combined

effect of multiple errors rendered a criminal defense “far

less persuasive” and had a “substantial and injurious

effect or influence” on the jury's verdict, the overall

strength of the prosecution's case must be considered

because “a verdict or conclusion only weakly supported by

the record is more likely to have been affected by errors

than one with overwhelming record support.” Strickland v.

Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).” Parle at 928 hn11

12. The indictment fails to state an offense. While

there was no motion and ruling on a motion to quash, the

Court of Appeals should consider the inadequacy of the

state’s pleading in determining if Appellant had a fair

trial.

It should also consider whether this pleading is one

which does implicate due course.

It should also consider whether this pleading is one
INITIAL BRIEF - 38
which does implicate due process.

Yes, it is true that the state amended its

constitution re such inadequate pleadings and the failure

of the defense to move to quash. A state cannot avoid the

requisites of federal due process by amending the state’s

constitution. The state’s own requirement of due course

will not abide a conviction and confinement for acts which

do not constitute an offense...elsewise we should still

have abode in the penitentiary for those convicted of

homosexuality, those culpable of seduction upon false

promise of marriage, etcetera.

The indictment does not allege that the act of giving

answers was done without the consent of the owner. When a

material element is omitted from the indictment, it fails

to state an offense. Ex Parte Givens, 619 S.W.2d

184(Tex.Crim.App. 1981) Such process violates both due

course and due process. TEX.CONST.arts.13 & 19 as well as

U.S. CONST.amend.14, Givens.

INITIAL BRIEF - 39
Pursuant to Tex. R. App. Proc. 38.1(I), Appellant provides a short conclusion that clearly
states the nature of the relief sought:

CONCLUSION AND REQUEST FOR RELIEF
The Court should find that the state presented
misleading testimony calculated to harm the Defendant. The
Court should find that the argument was erroneous but that
it was not harmless beyond a reasonable doubt. The Court
should grant a new trial on guilt or innocence, since the
misleading evidence tainted the guilt/innocence trial.
The Court should grant a new trial on punishment.
The Court should find that the state presented false
testimony and that the defendant was deprived of due
process and due course of law. The Court should find that
the misleading statements and evidence from the state
affected the jury’s verdict. The Court should find harm
and should order a new trial.
The Court should find that cumulative error deprived
the defendant of a fair trial and order a new trial.
The Court should find that the grand jury subpoenas
that the state sued out stopped witnesses from testifying
at a motion for new trial. The Court of Appeals should
find this a deprivation of due process and due course. It
should provide an appropriate remedy, dismissal of the
indictment with prejudice to refile the same.
The District Court should determine that the defendant
was denied a fair trial and was being denied the due
course and due process necessary to prove up his
allegation in the Motion for New Trial that Cadriel never
INITIAL BRIEF - 40
received a benefit from Cameron County.
Respectfully submitted

/s/Larry Warner
Larry Warner,
Counsel for Respondent
3109 Banyan Circle
Harlingen,Tx 78550
Phone 956 230 0361;
Fax 866 408 1968
Tex.State Bar# 20871500
Usdc,Stdx# 1230
office@larrywarner.com
website: larrywarner.com
Member, Bar of the Supreme Court
of the United States(1984)
Board Certified, Criminal Law
Texas Board of Legal
Specialization(1983)

INITIAL BRIEF - 41
 Certificate of Service

I will hand a copy of this Motion for New Trial and

Motion Setting Hearing on this Motion for New Trial to the

prosecutor in the courtroom and inform the court that I

have done so. I am emailing a copy of this instrument to

Gustavo Garza, Assistant District Attorney, and Ismael

Hinojosa, Assistant District Attorney, email:

,

and on January 7, 2015.

Respectfully submitted
January 7, 2015,

/s/Larry Warner
Larry Warner,
Counsel for Defendant

INITIAL BRIEF - 42
Pursuant to Tex.R.App.Proc.9.4(i)(C) Appellant provides this Certificate of
Compliance:

I, the undersigned counsel, certify that this reply
brief was prepared using WordPerfect X3 and complies with
TexR.App.Proc. 9.4(I)(C) and contains 6,704 words in
Courier New 14pt.

RESPECTFULLY SUBMITTED,
JANUARY 7, 2015.

/s/Larry Warner
Larry Warner
Attorney for Appellant
3109 Banyan Circle
Harlingen, Texas 78550
PHONE 956 230 0361;
FAX 866 408 1968
email: office@larrywarner.com
website: larrywarner.com
State Bar of Tx 20871500;
USDC,SDTX 1230(1981)
Board.Certified,Criminal Law,
Texas Board Legal Specialization(1983)
Member of the Bar of the
Supreme Court of the United
States(1984)

INITIAL BRIEF - 43