WR-76,781-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/20/2015 1:50:53 PM
Accepted 5/22/2015 10:39:35 AM
ABEL ACOSTA
NO. WR-76,781-01 CLERK
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE § IN THE DISTRICT COURT
§
§ 174TH JUDICIAL DISTRICT
§
ROBERTO DELACRUZ § HARRIS COUNTY, TEXAS
Applicant’s Second Supplemental Authority
in Support of Writ of Habeas Corpus
To the Honorable Court of Criminal Appeals:
Now comes Roberto De La Cruz, Applicant, in the above styled and numbered
cause and presents this second supplemental authority in support of his application
for writ of habeas corpus and would show this Court the following:
This Court’s opinion in Ex parte Keller, WR-36,232-02 (May 20, 2015),
supports Applicant’s claim for relief that he was denied due process based on false
testimony of all of the police officers who testified and the State’s sole eyewitness.
In Keller, the trial court determined that the testimony of Dr. Michael Mouw was
false and that he was entitled to a new trial. This Court granted relief based on this
Court’s decisions in Ex parte Chavez, 371 S.W.3d 200, 206-207(Tex.Crim.App.
2012) and Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011).
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May 22, 2015
In the instant case, at the commencement of the evidentiary hearing held by
the trial court, the State agreed that the credible forensic evidence presented at trial
and by the report of forensic reconstruction expert, Tom Bevel, the amended autopsy
report of Dr. Dwayne Wolfe, Deputy Chief Medical Examiner of Harris County,
Texas is more consistent with Jorge Pena being shot at the location where his body
was found and not consistent with the State’s theory at trial that he was shot at one
location, transported by car for approximately 10 minutes and then his body
“dumped” at another location. The State also stipulated that the credible forensic
evidence demonstrates that the complainant had two gunshot wounds rather than a
single gunshot wound. One of the shots entered the face and one entered the back of
the head. And the wound described by Dr. Shrode at the trial as an exit wound is in
fact a second entrance wound. His analysis of the wounds and manner of death was
false.
Thus, all of the witnesses called by the State presented false testimony. The
amended autopsy report proves that the officers’ analysis of the scene presented as
expert testimony over objection was false. The amended autopsy report also proves
that the Torres’, a paid informant, testimony was false. The trial court found that
Applicant’s due process rights were violated by the State’s presentation of false
testimony by all its witnesses.
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Thus consistent with this Court’s opinion in Keller, this Court should adopt the
findings of fact and conclusions of law of the trial court and remand his conviction
to the trial court for a new trial.
Respectfully submitted,
Schneider & McKinney, P.C.
/s/ Stanley G. Schneider
Stanley G. Schneider
Texas Bar No. 17790500
440 Louisiana
Suite 800
Houston, Texas 77002
Office: (713) 951-9994
Fax: (713) 224-6008
Email: stans3112@aol.com
Attorney for Applicant
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has
been mailed, emailed, and/or hand delivered , on this 20th day of May, 2015 to the
following:
Andrew J. Smith, Assistant District Attorney
Harris County District Attorney’s Office
1201 Franklin, 6th floor
Houston, Texas 77002
Email: SMITH_ANDREW@dao.hctx.net
Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Email: information@spa.texas.gov
/s/ Stanley G. Schneider
Stanley G. Schneider
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