WR-76,781-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/2/2015 12:02:46 PM
July 2, 2015 Accepted 7/2/2015 1:14:50 PM
ABEL ACOSTA
NO. WR-76,781-01 CLERK
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE ROBERTO GONZALEZ DE LA CRUZ, Applicant
APPLICANT’S MOTION FOR REHEARING
CAUSE NO. 835305
174TH DISTRICT COURT
FROM HARRIS COUNTY, TEXAS
STANLEY G. SCHNEIDER
SCHNEIDER & McKINNEY, P.C.
TEXAS BAR NO. 17790500
44O LOUISIANA, SUITE 800
HOUSTON, TEXAS 77002
OFFICE: (713) 951-9994
FAX: (713) 224-6008
EMAIL: stans3112@aol.com
ATTORNEY FOR APPLICANT
ROBERTO DE LA CRUZ
IDENTIFICATION OF PARTIES
Roberto Gonzalez De La Cruz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicant
c/o Stanley G. Schneider
Schneider & McKinney, P.C.
440 Louisiana, Suite 800
Houston, Texas 77002
The Hon. Devon Anderson. . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney for the State
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for the State
Harris County District Attorney’s Office
1201 Franklin, 6th floor
Houston, Texas 77002
Cruz Cervantes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Counsel for Applicant at trial
Lorraine Cervantez. . . . . . . . . . . . . . . . . . . . . . . . . . . Counsel for Applicant at trial
Stanley G. Schneider. . . . . . . . . . . . . . . . . . . . . . . Counsel for Appellant on appeal
Schneider & McKinney, P.C.
440 Louisiana, Suite 800
Houston, Texas 77002
Honorable Doug Shaver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Judge
i
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
INDEX OF AUTHORITIES
Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. REASON FOR REHEARING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. ARGUMENT IN SUPPORT OF REHEARING. . . . . . . . . . . . . . . . . . . . . . . . 1
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
INDEX OF AUTHORITIES
Cases
Alcorta v. Texas, 355 U.S. 28 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 9
Burkhalter v. State, 493 S.W.2d 214 (Tex. Cr. App. 1973). . . . . . . . . . . . . . . . . . 10
Estrada v. State, 313 S.W. 3d 274 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . 14
Ex parte Ghahremani, 332 S.W. 3d 470 (Tex. Crim. App. 2011). . . . . . . . . . . 9, 14
Ex parte Chabot, 300 S.W. 3d 768 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 9
Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 8
Mooney v. Holohan, 294 U.S. 103 (1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Napue v. Illinois, 360 U.S. 264 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14
Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Statutes and Rules
TEX. CODE CRIM. PROC. art. 11.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. APP. P. 79.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW ROBERTO DE LA CRUZ, Applicant herein, by and through
his attorney, STANLEY G. SCHNEIDER, and pursuant to TEX. R. APP. P. 79.1,
files Motion for Rehearing and in support thereof, would show the Court as follows:
I. Procedural History
This Court’s opinion was issued on June 17, 2015. This Motion for Rehearing
is due on July 2, 2015.
II. Reason For Rehearing
By its opinion, this Court is sustaining a conviction based on testimony that is
false. New scientific evidence that proves the falsity of every witness who testified
at Applicant’s trial. Due process and the concept of fundamental fairness demands
that this Court reconsider its opinion and remand this cause for a new trial.
III. Argument in Support of Rehearing
The lie embraced by the State is that Marcos Torres saw Roberto DelaCruz
shoot Jorge Pena in front of Porras’ Bakery and then helped transport Jorge Pena’s
body to a nature reserve fifteen minutes from the bakery. The State argued to the jury
that the medical examiner was incompetent to interpret the scene and that the police
were qualified to interpret evidence.
Today, the State has now stipulated that the competent scientific evidence
1
confirmed that Jorge Pena was shot where his body was recovered. The State agreed
that Jorge Pena was shot twice in the head at the nature reserve yet still argue that a
conviction must be upheld. The State argues that the testimony from Dr. Wolff does
not prove that Marcos Torres did not see Roberto DeLaCruz shoot Jorge Pena.
All of the testimony from all of the state’s witnesses Marcos Torres, police
witnesses Brian Naismith, Daniel Woolcock, Pamela Erikson, Raul Budd and
Assistant Medical Examiner Paul Shrode were false in some fashion.
Without consideration of the new scientific evidence, the trial judge was
surprised by the verdict.
Since I heard the case — I have no idea what else occurred during the
course of the trial, the conversations. I can tell you this: As far as
Marcos Torres is concerned, the State’s main and only witness that
I remember, I was surprised myself that the jury believed him and
found the person guilty. He was an unbelievable witness, in my
opinion. The jury believed him.
(8 RR 51). (emphasis added)
Applicant filed an application for writ of habeas corpus pursuant to TEX. CODE
CRIM. PROC. art. 11.07 wherein he raised the following issues:
(1) Applicant was denied effective assistance of counsel for the following
reasons:
A. Trial counsel failed to object to the opinions and qualifications of
Baytown Police Officers Daniel Woolcock, Pamela Erickson and
2
Raul Budd concerning their analysis of the crime scene and blood
spatter evidence;
B. Trial counsel failed to cross examine Daniel Woolcock
concerning his investigation of the scene at Porras’ Bakery on
November 21, 1998 and his analysis of blood stain evidence;
C. Trial counsel failed to cross examine Pamela Erickson concerning
the facts observed by her that supported the defense trial theory
that Jorge Pena had been shot at the location where his body was
found;
D. Trial counsel failed to impeach Raul Ramirez concerning the
location of the store that Jorge Pena bought beer on the night that
he disappeared;
E. Trial counsel failed to cross examine Marco Torres regarding the
reason for his failure to call the police after witnessing the alleged
shooting of Jorge Pena; the distance between Applicant and Jorge
Pena at the time of the shooting; the different descriptions of the
vehicle that Applicant was driving on November 19 -20, 1998;
F. Trial counsel failed to cross examine police concerning the date
Applicant purchased a white Ford LTD, which was described as
the vehicle being driven by Applicant when Jorge Pena was shot;
G. Trial counsel failed to cross examine police concerning the scene
of Porras’ on November 19 and 20, 1998, and the lack of
evidence of a shooting at the scene and the investigation of
outside.
H. Trial counsel failed to cross examine Diana Pena about her
relationship with Jorge Pena and what she was doing on
November 19, 1998, prior to the shooting and his leaving their
house with her brother Raul Ramirez;
3
I. Trial counsel failed to present expert testimony concerning the
interpretation of the scene evidence and failed to present
testimony from a crime scene reconstruction or blood spatter
expert concerning the positioning of Jorge Pena was shot where
his body was discovered;
J. Trial counsel failed to make a hearsay objection to the testimony
by Officer Budd concerning his interview of Juan DelaGarza and
after interviewing DelaGarza and interviewing Marcos Torres.
K. Trial counsel failed to object to testimony of Officer Budd
concerning the contents of the statement made by a confidential
source in September of 1999, concerning the shooting of Jorge
Pena.
The habeas court convened a hearing to consider the allegations of newly
discovered evidence that was previously unavailable and material to the defense and
that Applicant was denied due process by the State’s presentation of false evidence.
The habeas court specifically found that the testimony of each of the State’s was
false. The habeas court found that the amended autopsy report constituted newly
discovered evidence that would have in all probability resulted in a different verdict
because of the credible and unchallenged testimony of Dr. Dwayne Wolfe that Jorge
Pena had been shot in the head twice and not once as testified to by Assistant Medical
Examiner Dr. Paul Shrode, a witness called by the State. Dr. Wolfe also testified that
the second shot to the head of Jorge Pena occurred within a minute of the first shot
to Jorge Pena’s head. Dr. Wolfe testified that the second shot definitely occurred at
4
the location where Jorge Pena’s body was found rather being shot at a different
location once and his body transported across Baytown. The trial court further found
that the State theory at trial had no viable or competent evidentiary because the
testimony of Marcos Torres was not supported by any credible forensic evidence.
The habeas court also did not make recommendations pertaining to
Applicant’s claim that he was denied effective assistance of counsel.
The habeas court found that Marcos Torres, a paid informant for the Baytown
Police Department, (4 RR 70), testified that on the night of November 19-20, 1998,
he was with Applicant and Applicant’s son-in-law, Juan DeLaGarza. According to
the record, Torres stated that they were drinking, smoking dope, riding around
Baytown. Applicant was driving. The habeas court found that Torres told the jury
that Applicant stopped his vehicle in front of Porras Bakery and went to talk to some
guys. Neither DeLaGarza nor Torres got out of the car. The habeas court found that
Torres said that Applicant got something from the car and walked up to Pena, who
was standing with his hands in his pockets and shot him. Torres stated that he was
not expecting Applicant to shoot anyone. The habeas court further found that Torres
stated that Applicant told Torres to put Pena in the car. Torres stated that he picked
up Pena and put him in the back seat of the car by lifting him up by placing his hands
under his arms and dragging him to the vehicle. Even though he picked up Pena by
5
hugging him under his arms, Torres stated that he did not see where Pena was
bleeding. Torres stated that Applicant instructed him to drive Applicant’s vehicle.
Applicant allegedly directed Torres to drive to some park type area on Bayway Drive.
Somehow Pena’s overalls came off. The habeas court found that the record reflects
that Torres stated that when they got to a deserted area, Applicant told Torres to stop
the vehicle and Applicant pulled Pena from the backseat and left him on the ground.
Torres then threw Pena’s overalls on top of him. The record also reflects that Torres
also stated that he did not go to the police after the shooting because he was afraid of
Applicant. Torres stated that his fear of Applicant was based on the fact that prior to
the shooting of Pena, Applicant shot two guys and after the shooting was going back
and forth to Mexico.1 The record reflects that Torres stated that he did not voluntarily
approach the police but was taken to the Baytown Police Department in September
1999 to give a statement. The record reflects that Torres stated that while giving his
original statement Baytown Police Officer Budded gave him hints about what to say
in his statement. (4 RR 101).
The habeas court found that the State, in its closing argument attempted to
discredit the opinions of Dr. Shrode and relied totally on the believability of Torres
1
Baytown Police report 1999-9574, March 5, 1999, involves the shooting described
by Torres which occurred two months after Pena’s body was discovered.
6
and the police officers:
It was Dr. Shrode’s testimony, he said the bullet could have killed
him instantly. He didn’t say he would bleed instantly. It takes time. It’s
going to come out of the area where the injury occurred. You can look
at the photographs. It came out of Mr. Pena’s ear and it came out of the
injury, which is why it all pooled right by his head.
You heard testimony from the officers at the scene about the
decline from his head and why it flowed downhill. It wasn’t a splatter,
it was a pooling, a river of blood that flowed from his head. Dr. Shrode
wasn’t at the scene, he wasn’t there, he didn’t go out and look at the
body. Sometimes medical examiners do, but they didn’t in this case.
The officers were the ones out there at the scene, examining the
scene, taking a look at it to determine what it is they believed happened.
What other physical evidence is there to show you that Marcos
Torres is believable and credible and what he tells you is the truth?
When you -- I know thought numerous times -- I’m not going to put this
picture up. You can take it back there with you and look at all the
photographs.
Remember, the T-shirt and shorts Mr. Pena was wearing. There
is a trail or blood going down his shirt and onto his shorts. Detectives
told you they felt that was consistent with him having been propped up
some point. Very well could have happened in the ride from the car --
in the car from Porras to the location where they dumped his body out
in the park.
There is no way when he’s on an incline and all the blood is going
this way, that any blood would down this way. It’s consistent. Juan
Pena’s body is giving you the evidence for you to believe that this man
committed the offense of murder. That his blood trailed down as he was
being transported from Porras to the location in the park.
You can take it back there and look at it. You can refresh your
memory with what the officers told you. All the detectives that were up
there, they all told you the same thing. That’s what they saw, that’s
what they believed. Every one of those detectives told you when they’re
out at the scene, they never, for one minute, thought this offense
occurred out by the water.
The way the body is dumped -- when you look at that photograph,
7
it’s kind of like when the officers told you they saw the body, what was
your initial impression? What did you think? When you look at the
photograph, it looks like a body has been touched. It doesn’t look like
someone who has just been shot. Those arms are out, falls backwards,
the legs in odd angles. His right leg is twisted under. His arms are
underneath him. A person who’s just been shot, you look at it. I don’t
think you’re going to think a person can lay like that.
...Look at the photographs. All I’m asking you is to use your
common sense. The physical evidence corroborates the statement of
Marcos Torres.
(5 RR 96-98).
Given Supreme Court precedent, it is inconceivable that this Court determined
that the revelation that competent scientific evidence proved that Jorge Pena was
murdered at the nature reserve and not at Porras’ Bakery was not material. The
Supreme Court has long held that the presentation of false evidence at trial violates
a criminal defendant’s due process rights if the reliability of a given witness may be
determinative of guilt or innocence. Napue v. Illinois, 360 U.S. 264, 269 (1959). In
order to prevail on a claim that his constitutional rights were violated by the
presentation of false testimony, a Petitioner must establish that: 1) the testimony was
actually false; 2) the prosecution knew it was false; and 3) that it was material. Napue
v. Illinois, 360 U.S. at 271. The Supreme Court has also stated that a new trial is
dictated only when the false testimony could, in any reasonable likelihood, have
affected the judgment of the jury. Napue, 360 U.S. at 271.
8
This Court’s opinion conflicts with its own analysis in Ex parte Chavez, 371
S.W.3d 200 (Tex. Crim. App. 2012) where this Court stated that the standard for
materiality of false testimony is whether there is a “reasonable likelihood that the
false testimony affected the applicant’s” conviction or sentence. See also Ex parte
Chabot, 300 S.W. 3d 768, 772 (Tex. Crim. App. 2009); Barrientes v. Johnson, 221
F.3d 741 (5th Cir. 2000). The Fifth Circuit has stated that evidence is false if it is
specific misleading evidence important to the prosecution’s case in chief. False
evidence is material only if there is any reasonable likelihood that [it] could have
affected the jury’s verdict. Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997).
The Supreme Court has stated that testimony is false when it creates a false
impression or the witness omitted or glossed over pertinent facts. For example, in
Alcorta v. Texas, 355 U.S. 28 (1957), the defendant claimed that he murdered his wife
as a result of sudden passion when he came home to find a man kissing her. The man,
the only eye-witness to the murder, testified that his relationship with the wife was
nothing more than a casual friendship in which he drove her home from work a few
times. The Supreme Court held that such testimony was false; it created a false
impression of the facts because, in actuality, the man was the wife’s “lover and
paramour,” and the two had sexual intercourse on many occasions. Id. at 30-32.
Similarly, in Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011), the
9
victim’s mother testified that after the victim was assaulted, the victim “gained
weight, required therapy, and ‘wasn’t the same socially,’” but the mother denied that
anything else was different about the victim during the time between the assault and
the victim’s intensive therapy. Id. at 478-79. However, the habeas record showed
that the victim sold drugs and was initiated into a gang during that time period. This
Court concluded that the witness’s testimony created a misleading impression of the
facts because of the gravity of the events omitted, the significant period of time that
was not addressed, and the fact that the testimony attributed all of the psychological
treatment to the defendant’s actions. Id. at 479; see also Burkhalter v. State, 493
S.W.2d 214, 218 (Tex. Cr. App. 1973), holding that, although the witness’s statement
was not technically false, it “conveyed an impression to the jury which the State knew
to be false” when the witness’s lawyer had an understanding with the State that the
witness would not be prosecuted if he testified, but the witness testified he did not
have an agreement with the State).
The rules are simple. A new trial must be granted if the false testimony
affected the outcome of the proceedings. And if the State used false evidence to
support a conviction, the conviction must be set aside.
In the instant case, the Applicant was convicted of murder and sentence to 99
years in prison. Justice demands that the Court must approve the recommendations
10
of the trial court and grant Applicant a new trial. At trial, the only testimony that
inculpated Applicant was Marcos Torres. The habeas court found that his testimony
was false and that there was no other testimony that linked Applicant to either Jorge
Pena or the shooting except the testimony of Marcos Torres. The State,
notwithstanding the stipulation entered as part of this habeas proceedings, still
contests the trial court’s recommendation that Applicant be granted a new trial
Applicant’s conviction rests solely on the testimony of Marcos Torres, a paid
informant for the Baytown Police Department. The evidence presented in the habeas
court proves that there exists no competent or reliable evidence from any source that
Marcos Torres’ testimony is any way true. There exists no evidence that Jorge Pena
and Applicant knew each other or even met on the night that Jorge Pena was shot
except for the testimony of Marcos Torres.
Essential to the habeas court’s recommendation are the results of the amended
autopsy report that clearly showed that Jorge Pena was shot twice and not once and
that he was shot where his body was discovered. The habeas court found that in all
probability the amended autopsy report establishes without a doubt that there were
two shots to Jorge Pena’s head, the second shot to the head of Jorge Pena occurred
in close proximity in time to the first shot to Jorge Pena’s head and the second shot
definitely occurred at the location where Jorge Pena’s body was found. Thus, there
11
exists no credible forensic evidence that supports the false allegations by Marcos
Torres.
Applicant believes that this Court must view the trial record especially the
testimony of Marcos Torres within the prism of the State’s stipulation of evidence
entered in this proceedings wherein 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
an a exit wound is in fact a second entrance wound.
Dr. Dwayne Wolfe, Deputy Chief Medical Examiner for Harris County, Texas
testified during the habeas proceedings that the autopsy of Jorge Pena was examined
at the request of the State and it was discovered that there were two gunshot entrance
wounds in the head of Juan Pena and not one. The official autopsy report was
12
changed or modified to reflect that two gunshot entrance wounds in the complainant’s
head. Because of the significance of the second wound to Jorge Pena’s head in
relationship to the facts of the case, the trial court found that the contents of the
amended autopsy report constituted newly discovered evidence.
In addition to describing the second wound and the path of the bullet, Dr.
Wolfe explained that the significance of the relationship between the trail of blood
on the ground and the blood stain on the complainant’s shirt. He stated that the stains
are consistent with Mr. Pena having been shot right at the location where he was
found and leaning forward as the blood drips down and trails across the ground. The
stains give no indication that he was dragged. Dr. Wolfe stated that there is no
indication that the complainant was transported from one location to the scene where
he was discovered. Dr. Wolfe stated that the shot to the face was an immediate
incapacitating shot and that the complainant’s heart would continue to pump for at
least a minute after the first shot to the face. The only logical conclusion from the
forensic evidence was that Jorge Pena was shot where his body was discovered.
Thus, the habeas court found that based on the State’s stipulation of evidence
at the habeas hearing and the evidence presented at the habeas hearing that the trial
testimony of Marcos Torres was entirely untrue. The State’s entire theory of trial is
unsupported by competent forensic evidence and that the State misrepresented the
13
testimony of the Dr. Shrode in its final arguments in support of use of the incredible
testimony of Marcos Torres.
Clearly existing precedent requires that rehearing be granted and a new trial
ordered. Justice demands no less. Napue v. Illinois, 360 U.S. 264, 269 (1959);
Mooney v. Holohan, 294 U.S. 103, 112-11 (1935); Ex parte Ghahremani, 332 S.W.
3d 470, 478 (Tex. Crim. App. 2011); and Estrada v. State, 313 S.W. 3d 274, 278-88
(Tex. Crim. App. 2010).
PRAYER
Wherefore premises considered Applicant prays that this Court grant rehearing
and uphold the findings of the State habeas court.
SCHNEIDER & McKINNEY, P.C.
/s/ Stanley G. Schneider
STANLEY G. SCHNEIDER
TBN: 17790500
440 Louisiana
Suite 800
Houston, Texas 77002
OFFICE: 713-951-9994
FAX: 713-224-6008
E-MAIL: stans3112@aol.com
ATTORNEY FOR APPLICANT
14
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above document contains
3,548 words, excluding the portions excluded in TEX. R. APP. P. 9.4(i)(1).
/s/ Stanley G. Schneider
STANLEY G. SCHNEIDER
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
Applicant’s Motion for Rehearing has been mailed, hand-delivered, or e-mailed to the
office of the Harris County District Attorney’s Office, 1201 Franklin; Houston, Texas
77002 and the Office of State Prosecuting Attorney, P.O. Box 13046, Austin, Texas
78711, on this the 2nd day of July, 2015.
/s/ Stanley G. Schneider
STANLEY G. SCHNEIDER
15