MORENO, VALENTIN Jr.

September 16, 2015

Valentin Moreno, Jr.
78'8216, Robertson Unit
Abel Acosta, Clerk
12071 FM 3522
Court of Criminal Appeals
Abilene, Texas 79601
P.O. Box 12308
Capitol Station
Austin, Texas 78711

Re: Writ of Mandamus Filing

Dear Mr. Acosta:
Enclosed you will find a Motion For Leave To File A Writ of Mandamus, a
Declaration of Inability To Pay Court Costa, a Motion To Suspend Tex. R.•
App. P. Rule 9.3 - Pursuant To Tex. R. App. P. Rule 2 and a Writ of ~
petition. All to be asigned a cause number and brought to the attention of
the Court, as time permits .. Also enclosed is a cx:pj of all ITEntiaro plffidin:Js.

The enclosed Writ of Mandamaus, has direct bearing on application for writ
of habeas corpus [WR-49,474-05].

Enclosed is a self-addressed envelope with postage pre-paid. Can you please
send me a stampted filed copy of this cover letter, for my records.

Thank you for your time, attention and assistance.

Respectfully, RECEIVED IN
COURT OF CRIMINAL APPEALS

SEP 22 2015

Abet Acosta, Clerk
cc: file, Jul:Je Ramirez, H:lll. Rcilr:"iguez,
FWLT.
·--~_ ....

IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte §

§
Court of Criminal Appeals
Valentin moreno, Jr.
cause No.
Applicant § ---------------------

DECLARATION OF INABILITY TO PAY COURT COSTS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, Valentin Moreno, Jr. "Applicant", ProSe
I
and respectfully files
this his DECLARATION OF INABILITY TO PAY COURT COSTS. In support of the fore-
going, Applicant would show:

I.
Applicant is "indigent" and has no means to pay court costs. The 332nd
Judicial District Court has found Applicant to be indigent.

II.
Attached hereto, is a copy of Applicant's irnate trust fund account. This
shows applicant is a poor man.

III.
I, Valentin Moreno, Jr., understand a false statement herein this ~illation

will subject me to penalities for perjury. I verify under the penalty of ~jmy

that the foregoing is true and correct.
Signed this /l~ day of~~« 1 2015.

Valentin Moren~r-~788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
CSINIB02/CINIB02 TEXAS DEPARTMENT OF CRIMINAL JUSTICE 09/17/15
RB51/RBA2481 IN-FORMA-PAUPERIS DATA 09:41:34
TDCJ#: 00788216 SID#: 05134265 LOCATION: ROBERTSON INDIGENT DTE:
NAME: MORENO,VALENTIN JR BEGINNING PERIOD: 03/01/15
PREVIOUS TDCJ NUMBERS: 00689184
CURRENT BAL: 20.60 TOT HOLD AMT: 0.00 3MTH TOT DEP: 180.00
6MTH DEP: 370.00 6MTH AUG BAL: 28.39 6MTH AUG DEP: 61.67
MONTH HIGHEST BALANCE TOTAL DEPOSITS MONTH HIGHEST BALANCE TOTAL DEPOSITS
08/15 14.06 0.00 05/15 26.18 90.00
07/15 45.79 50.00 04/15 113.62 0.00
06/15 106.18 130.00 03/15 113.62 100.00
PROCESS DATE HOLD AMOUNT HOLD DESCRIPTION

STATE OF TEXAS COUNTY OF )Dfl~ /
ON THIS THE (L DAY OF 5-tt.J..~A .'!/, 1..), I CERTIFY THAT THIS DOCU ENT IS A TRUE,
COMPLETE,AND UNALTERED COPY MADE BY ME OF INFORMATION CONTAI
COMPUTER DATABASE REGARDING THE OFFENDER'S ACCOUNT. NP SIG:
PF1-HELP PF3-END ENTER NEXT TDCJ NUMBER: OR SID N
.; .......

IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte §
COURT OF CRIMINAL APPEALS
VALENTIN MORENO, JR. §
Cause No.
------------------
Applicant §

MOTION TO SUSPEND TEX. R. APP. P. 9 .. 3 - PURSUANT TO TEX. R. APP. P. 2

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Valentin Moreno, Jr., "Applicant", Pro Se and respectfully files

this his JVDI'ICN 'IO ~'lEX. R. APP. P. RillE 9.3 - PURSUANT TO TEX. R. APP. P. RULE 2;

and would further show this most Honorable Court the following:

I.

This most Honorable Court has jurisdiction over the parties and subject-

matter pursuant to TEX. R. APP. P. 52.

II.

TEX. R. APP. P. 9.3 requires that Applicant file the Original, and Eleven

(11) copies of his Pro Se Motion to Suspend into this court. The applicant is

proceeding in forma pauperis and has limited assistance from the freeword. The

required number of copies, on top of serving the listed parties in interest

would cause a server hardship on Applicant. TEX. R. APP. P. Rule 2, allows

this Honorable Court, for good cause shown, to suspend TEX. R. APP. P. 9.3and

allow for a leser number of copies to be filed.

III.

The Applicant makes this motion in good faith and not for purpose to

harass Respondent or this most honorable Court.

Page 1 [MTS]
•.

IV.

WHEREFORE, PREMISES CONSIDERED, the Applicant respectfully prays this most

; Honorable Court would GRANT this motion; thereinafter SUSPENDING the required

number of copies under TEX. R. APP. P. 9.3 and, allow Applicant to file only

the Original plus one (l) copy of his Pro Se Writ of Mandamus.

Signed and executed on this ~day of ~lzec , 2015.

Respectfully Submitted,

cv'J~-A&~ >f?.
Applicant, Pro se
Valentin Moreno, Jr.
788216, Robertson Unit
12071 FM. 3522
Abilene, Texas 79601

Page 2 [MTS]
.. ;. ..

v.
VERIFICATION

I, Valentin Moreno, Jr., being incarcerated at the French M. Robertson

Unit, in Jones County, texas; do hereby verify and declare under penalty of

perjury that the foregoing Motion and statements made therein, are all true

and correct and made in good faith.

Signed and executed on this ~J-#t... day ofcSj.~e/'' 2015.

Respectfully Submitted,

co/~~- ~4~ c;l
Applicant, Pro Se
Valentin Moreno, Jr.

VI.
CERTIFICATE OF SERVICE

I, hereby certify that the ORIGINAL copy of applicant's Motion to Suspend

Tex. R. App. P. 9.3 - Pursuant to Tex. R. App. P. 2, was sent by certified

mail to the Clerk of the Court of Criminal Appeals, with copies sent to the

judge Mario E. Ramirez, Jr. and counsel for the judge. All was sent via u.s.
Mail.

Signed and executed on this /Ifit day of d~~.,6"e/' I 2015.

-ve/~-~0-
Applicant, Pro
Valentin Moreno, Jr.

Page 3 .[MTS]
 IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

·Ex parte §

§ Court of Criminal Appeals
Valentin Moreno, Jr.
Cause No.
Applicant ~ ---------------------
APPLICANT'S MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, Valentin Moreno, Jr., "Applicant", ProSe and respectfully

files this his MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS. As good cause,

applicant would show the following:

I-
JURISDICTION

The Texas Constitution grants this most Honorable court such original

jurisdiction as may be provided by law in writ of mandamus action. See, Venxn's

ann. Texas Const., Article 5, § 5.

II.
MANDAMUS ISSUE

THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORM A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF ACTS UNDER ARTICLE 11.073 (b), (c) AND (d) C. Cr. P.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Applicant prays. this most Honorable

Court GRANTS this motion for leave, in the interest of justice.

Signed and executed on this 1/# day of J~ THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORM A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF FACTS UNDER ARTICLE 11.073 (b), (c) AND (d) C. Cr. P.
IV. STATEMENT OF FACTS .•.• 2
v. ARGUMENT AND AUTHORITIES .• 2 - 5

(A)- THE LAW . . . . . . • . . . : . . . . . . 2 - 5
(B)- MANDAMUS AND MINISTERIAL DUTIES 5 - 6
(C)- CONCLUSION 6 - 8

VI- PRAYER .• 8
VII. VERIFICATION •• •. •. •• .• . . •• . . •. •. . 9
VIII. CERTIFICATE OF SERVICE . . . . . . . . . . . . • • . • . . . • . • . • • • • . 9

==============================================================================
APPENDIX SECTION IN SUPPORT:

APPENDIX- A: JUDGE MARIO E. RAMIREZ, JR.'S; FINDING OF FACTS, CONCLUSIONS OF
LAW, RECOMMENDATION AND ORDER

APPENDIX - B: PAGES 1 - 4 OF APPLICATION FOR WRIT OF HABEAS CORPUS; WHEREIN
PAGE 4 INVOKES ARTICLE 11.073 CODE OF CRIM PROC.

ii [OPE]
 INDEX OF AUTHORITIES

========================================~=====================================

SUBJECT PAGE[S]
==============================================================================
CASE LAW:

Alabama v. Bozeman, 533 u.s. 146 (2001) •• •• .. .. •• •. •. .. •• .. . 4
Banales v. Cb..rt of Jlfp:Bls fot the 'Ihrite::nth Julicial Dist., 93 s.w.:?d 33 ( m 2002) . . .6
B::Me1 v. carres, 343 s. w. :?d '2fJ5 ( m 2011) . . . . . . . . . . . • • . . • . . . . . . . . 6
Poykin v. state, 818 s.w.2d 782 ( m 1991) . . • . . . . . . . . . . . . . . • • . • • . • . • 3
· Gl::"eErMell v. Cb..rt of Afpaals for the 'Ihrite::nth Julicial Dist., 159 s.w.:?d 645 ( m 2CD5) . • 6
Ex parte Pruett, 458 s.w.:?d 537 ('10::1\ 2015) • . . . • . • . . . . . . . . . . . • • • • . • . • 4
Ex p:rrte Rd:bins, 2014 Tex. crim. Afp. IEXIS l9:X) ('10::1\ 2014) . . . . . • . • . . . . . 4,6, 7
Ex p:rrte Rcilriguez, 169 334 s.w. 2d 294 ('10::1\ lSBJ) . • . . . • . . . . . . . . . ...•. 4
In re Bonilla, 424 s.w.:?d 528 (m 2014) .• •• •• •• .• .• .. .. .. •• .. 6
In re State ex rel. W:eks, 391 s.w.:?d 117 ( m 2013) . . • • 2,5
In re state ex rel. 'Iharp, 393 s.w.:?d 731 ( m 2012) . . • . • . . . 6
!'brEn:::l v state, l s.w.:?d 846 (Tex. A[:p. Corp.JS Olristi 199:1) •. . • • 1
State ex rel. Hill v. Cb..rt of J.lfp::els for the Fifth Julicial Dist., • 6
State v. Patrick, 86 s.w.:?d 592 ( m 2002) • • • . .. 6
State ex rel. Rcsentrnl, 98 s.w.:?d 194 ( m 2002) • • • • •• • • . • • . . . • • • • • . . . 6

STATUS - CODES - RULES:
Tex. Code Crim. Proc. Chapter 2.01 7
Tex. Code Crim. proc. Chapter 11.07 1,2,3,4,5,6,8
Tex. Code Crim. Proc. Chapter 11.073 1,2,3,4,5,6,7,8
Tr;x. Gov't Code § 311.016(2) 4
Tex. R. App. P. 52 l
Tex. R. App. P. 52.4 8
Tex. R. App. P. 52.8 8
Tex. State Bar R. Discp. P. 15.06 7
==============================================================================
CONSTITUTIONAL LAW:

Tex. Const. art. I, § 12 5
Tex. Const. art. v, § 5 l

iii [OPE]
 LIST OF PARTIES

==============================================================================
. RELATOR, PRO SE.
Valentin Moreno/ Jr.
TDCJ-CID #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601

RESPONDENT
Bon. Judge Mario E. Ramirez, Jr.
332nd Judicial District Court
Hidalgo County Courthouse
100 1'\1. Closner
Edinburg, Texas 78539

COUNSEL FOR RESPONDENT
Bon. Ricardo Rodriguez, Jr.
Criminal District Attorney
Hidalgo county courthouse
100 N. Closner
Endinburg, Texas 78539

i [ OPW]
 IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

IN RE §

VALENTIN MORENO, JR. § CCA Case No.

RELATOR §

PETITION FOR A WRIT OF MANDAMUS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW, Valentin Moreno, Jr., "Relator", Pro Se and respectfully files

his Petition For A Writ of Mandamus - pursuant to Tex. R. App. P. 52; am, v.Ulld

further show the Court in support:

I.
STATEMENT OF THE CASE

The STATEMENT OF FACTS in this case are presented within the published

opinion in Moreno v. State, 1 S.W.3d 846, 852 (Tex. App. - Corpus Christi 1~,

pet. ref'd). On June 15, 2015, Relator filed subsequent habeas corpus applicaticn

under article 11.07 of the Code of Criminal Procedure alleging: (1) ~torial

misconduct; (2) ineffective assistance of counsel; (3) cumulative error; (4)

actual innocence. Relator also filed under newly enacted article 11.073 c. Cr.

P. Ann. (Vernon 2015). The State was served with same on June 23, 2015. The

State's answer was filed on Jule 8, 2015. Respondent "Trial Court" signed and

entered prepared FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATIONANDOffiER

(without a hearing) on July 20, 2015. See attached: APPENDIX- (A).

II.
STATEMENT OF JURSIDICTION

The Texas Constitution grants this most Honorable Court such original

jurisdiction as may be provided by law in writ of mandamus actions. See, Venxn's

Ann. Texas Constitution, Article 5, § 5. Mandamus is appropriate to compel the

Page 1 [OPWM]
performance of a judicial duty, particulary where the duty is ministerial. See,

In reState ex rel. Weeks, 391 s.w.3d 117, 122 (Tex. Crim. App. 2013).

III.
ISSUE PRESENTED FOR RELIEF

THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORM A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF FACTS UNDER ARTICLE 11.073 (b), (c) AND (d) C. Cr. P.

IV.
STATEMENT OF FACTS

On June 15, 2015, the Relator properly filed subsequent application for

a writ of habeas.corpus under article 11.07 c. Cr. P. and 11.073 C. Cr. P.
(vernon 2015). After the State prosecutor was served with the application on

June 23, 2015, it made no efforts to retrieve any additional evidence to be

filed into the record. When the State filed it response on July 8, 2015, it

also filed proposed FINDINGS OF FACTS, CONCLUSION OF LAW, RECOMMENDATION AND

ORDER to Respondent. See, attached APPENDIX- (A). In none of the State's

pleadings did it ever cite to, mention, or reach the required fact findings

under Article 11.073 (b), (c) and (d) c. Cr. P. Respondent requested no
affidavits from trial counsel, police, prosecutors, experts, or witnesses.

No hearing was conducted to expand this record. Instead, on July 20, 2015,

Respondent merely signed and dated APPENDIX- (A). The Relator filed ~CNS

to each of the blatant omissions; plus has filed separate motion before this

Court seeking an order to abate and remand this cause back to the Respondent

so as to perform these ministerial duties. However, at this time, Relator has

been informed that the record and current application has not been filed in

this Court. See, APPENDIX- (B). In the interest of justice Relator files this

action seeking order for Respondent's performance to these ministerial duties.

v.
ARGUMENT AND AUTHORITIES

(A) - THE LAW:
Page 2 [OPWM]
l a. This Court construes a statute in accordance with the plain meaning of

its text unless the plain meaning leads to absurd results that the legislatUre

could not have possibly intended. See, Boykin v. State, 818 S.2d 782, 785 (Tex.

Crim. App. 1991). Article ll. 073 in -.the Texas Code of Criminal Procedure reqUires,

in pertinent part:

(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the
convicted person's trial; or
(2) contradicts scientific evidence relied on by the State at trial.
(b) A court may grant a convicted person relief on an application for
a writ of habeas corpus if:
(l) the convicted pers0n filed an application, in the manner provided
by Article 11.07, 11071, or 11.072, contaning specific facts
indicating that:
(A) relevant scientific evidence is currently available and was not
available at the time of the convicted person's trial because the
evidence was not ascertainable through the exercise of ~le
diligence by the convicted person before the date of or during the
convicted person's trial; and
(B) the scientific evidence would be admissible under Texas Rules of
Evidence at a trial held on the date of the application; and
(2) the court makes the findings described by Subdivisions (l)(h) and
(B) and also finds that, had the scientific evidence been presented
at trial, on the predonderance of the evidence the person would
not have been convicted.
(c). For purpose of Section 4(a) (l), article 11.07, .•. , a claim or issue
could not have been presented previously in an original application
or in a previously considered application if the claim or issue is
based on relevant scientific evidence that was not ascertainable
through the exercise of reasonable diligence by the convicted person
on or before the date on which the original application or a previcusly
considered application, as applicable, was filed.
(d) in making a finding as to whether relevant scientific evidence was
not ascertainable through the exercise of reasonable diligence on or
before a specific date, the court shall consider whether the field
of scientific knowledge,.a testifying expert's scientific knowledge,
or a scientific method on which the relevant scientific evidence is
based has changed since:
(l) the applicable trial date or dates, for a determination made with
respect to an original application; or
(2) the date on which the original application or previously axsi~
application, as applicable, was filed, for a determination made
with respect to a sebsequent application.

Page 3 (OPWM]
 This court may take JUDICIAL NOTICE of the Legislature's use of word: .

SHALL in Art. ll.073(d) c.cr. P. (the court shall consider whether •.. ). 1he

·word SHALL is defined as "the language of command". Alabama v. Bozeman, 533

U.S. 146, 153 ( 2001) , and is generally imperative or mandatory in its rre:mirg.

See, e.g., Section 311.016(2) Texas Government Coqe Ann. (Vernon 2015). This

is what causes the statute to become a "ministerial'.' duty to act.

2 a. Just recently, in the case of Ex parte Pruett, 458 S. W. 3d 537 ( 'Iex.erim.

llfp. 2015) Judge Alcala filed dissenting statement which addressed a m:isurderst:arrl-

irB this Court was having with regards to the Whom "the court" was required to
make such findings under Art. ll.073(b),(c) and (d) c. Cr. P. See, Id. at 541-

542.~' With all due respect, the Relator would respectfully point to this Court's

well established (55 years) holding under Ex parte Rodriguez, 169 Tex. Crim. 367,

334 S.~W.2d 294, (1960).where this Court continues to hold that "the trial court

is the appropriate forum for fact finding." According to art. ll.073(b) (1) (A)

and (B) it .would require the trial court to gather together such facts ino~

to make such a determination to then make its findings of fact under (b)(2).

With regard to Art. ll.073(b)(l)(A), that would require Relator's former defense

attorney to file an affidavit or give live testimony in record explaining whe~

or not such had been available, and i f so, why they chose not to of fer it at trial.

Moreso, as is the instant case, because Relator raised the claim of his former

defense counsel's ineffective assistance for failing to have done such. With

regard to art. ll.073(c) c. Cr. P., that would have required the trial court to

have made a finding that Art. 11.07, § 4(a)(l) c. Cr. P. was me4due to the new

law under Art. 11. 07 3 . C. cr. P. See, e.g. , Ex parte Robbins, WR-73, 484-02;

2014 WL 6751684; 2014 Tex. Crim. App. LEXIS 1900 (November 2014). Finally, Art.

ll.073(d). c. Cr. P., also requires the trial court to make a finding througlj

the exercise of reasonable diligence, whether the science had changed, which

Page 4 (OPWM]
would also have required affidavit or live trial testimony a.nri..ng fran Relator's

newly available experts, former defense counsel and the former prosecutor.Nbne

·of these required factual findings were completed, nor remotely mentioned by

the Respondent inside APPENDIX - (A) attachered heretowith.

3a. The Texas Constitution declares that "the writ of habeas corpus is a

writ of right, and shall never be suspended . " TEX. CONST., Art. l, § 12. The

Texas Constitution mandates that the Legislature "shall enact laws to render

the remedy speedy and effectual." Id. Accordingly, the Legislature codified

procedures for 6iling applications for writ of habeas corpus. See, TEX. CODE

CRIM. PROC. arts. 11.07 (procedures for applications in non-death cases);

11.073 (procedures related to certain scientific evidence). For an indigent

inmate wishing to pursue an application for a writ of habeas corpus in a non-

death case under arts 11.07 and 11073, as here, ordinaryly the burden falls

solely on him, without appointed counsel, to initially file his application.

An applicant will usually get- only one bite at the habeas-corpus apple because

Section 4 in part. 11,07 precludes a court from considering the merits of or

granting refief based on a subsequent application unless the application antains

sufficient specific facts establishing one of the two limited exceptions to the

one-bite rule. See, TEX. CODE CRIM. PROC. art. 11.07, § 4. Merein, the Retalor's

application met this burden, which was ignored by the State and respondent. See,

APPENDIX - (A)

(B) - MANDAMUS AND MINISTERIAL-ACT REQUIREMENT:

lb. To be entitled to mandamus relief, the Relator must show two things:

(l) that he has no adequate remedy at law, and (2) that what he seeks to ~l

is a ministerial act. See, In reState ex rel. W2eks, 391 s.w~3d 117, 122 (Tex.Crim.A[:p.

2JD). With respect to the "no adequate remedy at law" requirement, this Court

has held that a remedy at law, though it technically exists, "may nevertheless

be so uncertain, tedious, burdensome, slow, incovenient, inappropriate, or

Page 5 (OPWM]
ineffective" as to be inadequate. See, Gr'ealwell v. Cb..n:t of Pfp33ls for the 'Ihirteenth

Ju:licial Dist., 159 s.w.:?d 645, 64.8-49 (Tex.cdm.ar:p. 2ro5); .see aloo In reState ex rel. 'llB!:p,

393 s.w.:?d. 731 (Tex.Cdm.J.Ifp. 2012) (sane).

2b. The ministerial-act requirement is satisified if the Relator can show a

clear right to relief sought. See, EOM:n v. C:lmas, 343 s.w.:?d 8fJS, 810 (Tex.Crim.llfp.

2011). A clear right to relief is shown when the facts and circumstances dictate

but one rational decision "under unequivocal, well-settled (i.e., from extant

statutory, constitutional, or case law sources), and clearly controlling legal

principles." Id. Although this Court has sometimes suggested that a legal issues

status as one of first impression meant that the law was not well-settled. See,

Eanales v. Ca.rt of Pfp33ls for the 'Ihirteenth Ju:licial Dist., 93 s.w.:?d 33, 36 (Tex.Crim.J.Ifp.

ax)2); State ex rel. Hill v. Ca.rt of A[:p:Bls for the Fifth Dist., 67 s.w.:?d 177, 181 (Tex.Crim.

llfp. 2011); at le3St n..o caS2S - State v. Patrick, 86 s.w.:?d 592 (Tex.Crim.llfp. 2002) ard State ex

rel. Rasenth:li, 98 s.w.:?d 194 (Tex.Crim.J.Ifp. ax)3) - contain dissents that were p:Bdicated

at least in part upon the fact that the issue was on of first impression. See

also, In re Ecnilla, 424 s.w.:?d 528, 533-34 (Tex.Crim.llfp. 2014)('Ihe issue l:efore us is one of

first :inpressim). One lesson from these cases is that an issue of first :inpressim

can sometimes qualify for mandamus relief when the factual scenario has never

been precisely addressed but the principle of law has been clearly established.

Herein, the Relator has made this prerequisite showing before this most HxDrable

Court.

(C) - CONCLUSION

Inseide APPENDIX - (A) at Pages 3-4 under CONCLUSIONS OF LAW, the R~t

did a fancy "Texas Two-Step" dance typing out art. 11.07, § 4 (a) ( 2012) , whim

omitted any mention of the new law brought under art. 11.073 (2015). As this

Court has already ruled in Ex parte Robbins, supra, the new Art. 11.073 c. Cr.

P. is considered to be "New Law" under- Art. . 11.07,, § 4(a) (1) c. cr. P. Then,

the Respondent makes a vague mentioning of Relator's newly available pro bono

Page 6 [OPWM]
experts, and their proffered sworn reports at Section 4, Page 4 APPENDIX- (A),

but then makes [a]bsolutely no findings whether or not they adhere to Art. 11.073

(b), (c) or (d) c. Cr. Pr. Indeed, those reports need not have !TEld2 "an affimetive

showing of actual innocence" but simply show that the field of scientific

knowledge, or a scientific method had changed since Relators trial, or the date

on which the original application or a previously considered application was

filed and determined. Inside the Court's opinion in Robbins, it explicitly held

that when the Texas Legislature enacted Art. 11.073 c. Cr. P., it chose a~cy

over finality. Id. 2014 tex. crim. app. LEXIS 1900 at *68. APPENDIX - (A) ignoan

this court's learned reading of art. 11.073 c. Cr. P., and its Legislatures
intent. for it has once again chosen finality over accuracy. It simply ignored

the vast newly available evidence and discovered material, eculpatory, and

impeaching evidence the Relator filed before it. It-allowed the state prosecutor

to file an answer which ignored the same and attempts to' mislead this Court by

making known false statements, then typed it up for Respondent's signature,

APPENDIX - (A) which followed the same error. [l] Had the respondent truely

reviewed the relator's subsequent application for writ of habeas corpus, it

would have seen the evidence, the prosecutors false statements and references

to Art. 11.073 c. Cr. P., see APPENDIX- (B) Page 4 section (C). it would then

become aware of its required ministerial duties urder art. 11.073 c. Cr. P. Ille to these

missims, the Relator is b=i.nj dEnied acx:ess to 'Ihe Gr:ret Writ urder 'lEX. crmr. art. 1, § 12.
Mandamus relief is appropriate in this case of first impression.

[ 1 ] > Ps a rratter of further first :inpressim, Relator alro cx:nterrls tlat havi.nj a State
Prasecutor v.:h::se office pr:a3eCUted such ar:plicant, thEn have the autmrity to write
oot ~ am the cx:nvictin::J ro.rt •s FINDIN3S OF FAcrs, a:N::lllSICNS CF IAW, REUM-
MEI:\IDATICN AJ:\lD CRIER for signature raises a clrer cx:nflict of interest; rrorero, when
Brcdy errors, Frau:) or C'a1cEBJ.rrent is dErged against than or their office. SEe, e.g.,
Rule l5.06(C) am (D) in the Texas State .Bar Rules of disciplinary Procedure, last
arrax3Ed in 2013. vrule their prirrary duties fall urder Art. 2.01 c. Cr. P., to a:init
the truth, tlat they wrcrgfully cx:nvicted s::rra::ne due to Brcdy errors, or Fram am

Page 7 [OPWM]
 Cmce3lrrent, v.a.lld then allcw for the wr<::n:Jfully Irrpris:ned Pers:n' s relmse fran
prisc:n an:1 the start of the frur yrer lirnitatims to seek State l33r Grievance
cg:llnst tlose guilty of such rni..scrrrl.lct. fb..l does such cx::nflict help adri.eve
"accuracy" over firality?

VI.
PRAYER

WHEREFORE, PREMISES CONSIDERED, the Relator humbly prays that this most

Honorable Court would:
(A)> ORDER the Respondent to file response under Tex. R. App. P. 52.4;
(B)> GRANT requested mandamus relief under Tex. R. App. P. 52.8(c) and
(C)> ISSUE PUBLISHED OPINION AND ORDER to the Respondent that it shall
conduct appropriate hearings and therefore enter required findings
under Art. ll.073(b),(c) and (d) c. Cr. P. (2015); which shall then
be returned with the established record under Art. 11.07, § 3(d) C.
Cr. P.

IT IS SO PRAYED.
RESPECTFULLY SUBMITTED,
Signa) en this IJ1!-eey of ~n6v , 2015.

Valentin Moreno, Jr., #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601

Page 8 [OPWM]
 VII.
VERIFICATION

I, Valentin Moreno, Jr., being incarcerated in the French M.
Robertson Unit of the TDCJ-CID System, in Jones County, Texas;
do hereby verify and declare under the penalty of perjury that
all statements and attached APPENDIXES in this PETITION are true
and correct.
Signed and executed on this~ day of ~V' 2015.

Respectfully Submitted,

~~~2·
Relator, Pro Se.
Valentin Moreno, Jr.
788216, Robertson Unit
12071 FM 3522
Abilene, Texas 79601
VIII.
CERTIFICATE OF SERVICE

I, do hereby certify, that the original copy of applicant's
Writ of Mandamus was sent by certify mail to the Clerk of the
Court of Criminal Appeals, with original copies sent to the
Responsent and Counsel for respondent, u.s.
all sent via Mail.
Sigened and executed on this~ day of~~~ ,2015.

Page 9 [OPWM]
 A P P E N D I X - A

\'.I
. - - - - - - - - - - - - - - - - - - - - - - - ---·-··

FILED
AT 425 O'CLOCK.i?__M
Cause No. CR-0517-96-F(3) JUL - H 2015
Ex parte §
§
Valentin Moreno, Jr., §
§
Applicant §
FINDINGS OF FACT, CONCLUSIONS OF LAW,
RECOMMENDATION AND ORDER
Having considered the application for Writ of Habeas Corpus, the State's

response, and the Court's files in the above-numbered cause, including records of

the underlying criminal case, the Court makes the following Findings of Fact and

Conclusions ofLaw:

FINDINGS OF FACT

1. On March 3, 1996, Applicant convicted by a jury of the offense of capital

murder and was sentenced to life imprisonment in the institutional Division

of the Texas Department of Criminal Justice.

2. On August 31, 1999, the Court of Appeals for the Thirteenth Judicial District

affirmed Applicant's judgment and sentence for capital murder.

3. On March 5, 2001, Applicant filed his first application for writ of habeas

corpus under Article 11.07 of the Texas Code of Crimina) Procedure,

alleging: (1) lack of jurisdiction; (2) the trial court vio91ated his right to due

process by proceeding to trial with eleven jurors; (3) ineffective assistance of

trial counsel; (4) ineffective assistance of appellate counsel; (5) prosecutorial

misconduct; and (6) actual innocence .

. -&~
.~
It:-"

'•'I
''"~~:~!>"'·
I
...............--
___,$ ' ; . ;: : '-
 10.This Court must determine whether or not there are controverted, previously

unresolved facts, material to the legality of Applicant's confmement no later

than July 26, 2015. See id. § 3(c).

CONCLUSIONS OF LAW

1. If a subsequent application for writ of habeas corpus 1s filed after final

aisposido~ ~fan; initial-ap'plication challenging the same conviction, a court

may not consider the merits of or grant ·relief based on the subsequent

application unless the application contains sufficient specific facts establishing:

that the current claims and issues have not been and could not have been

presented previously in an original application or in a previously considered

application filed under this artide because the factual or legal basis for the

claim was unavailable on the date the applicant filed the previous application;

or by a preponderance of the evidence, but for a violation of the United States

Constitution no rational juror could have found the applicant guilty beyond a

reasonable doubt. TEX. CODE CRIM. PROC. art. 11.07 § 4(a) (2012).

2. Applicant's subsequent writ application fails to set forth sufficient facts

establishing that an exception exists to the prohibition against subsequent writs

in section 4, article 11.07 of the Texas Code of Criminal Procedure; therefore,

this Court may not consider the merits of or grant relief based on the subsequent

habeas application.

3.
 ---·· - - · · ·----- ----------~

· response and all supplements and amendments thereto; and this Findings of Facts,

Conclusions of Law, Recommendation and Order; and to send the foregoing to the

Texas Court of Criminal Appeals.

The Clerk is further ORDERED to provide copies of this Order to Applicant

and the State.

SIGNED FOR ENTRY this )o day of f)iy '2015.

Judge Mario E. Ra · ez, Jr.
332nd District Court
Hidalgo County, Texas

5
A P P E N D I X - B
 Case No. - - - - - - -
(The Clerk of the convicting court will fill this line in.)

IN THE COURT OF CRIMlNAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: VALENTIN MORENO JR.

DATEOFBIRTH: __J_u_l~y_l_9~'--_7_6___________________________________
19

PLACE Of CONFINEMENT: FRENCH -M. ROBERTSON UNIT

TDCJ-CID NUMBER: _.:7~8=8=21::..::6;..._______ SIDNUMBER: - - - - - - - - - - -

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

llil a conviction 0 parole

D a sentence D mandatory "supervision

0 time credit 0 out•of-time appeal or petition for
discretionary review

(2) What district court entered the judgment of the conviCtion you want relieffrom?
(Include the court number and county.)

332ND District Court, Hidalgo County

(3) What was the case number in the trial court?

CR-0517-96-F

(4) What was the name of the trial judge?

_Mario E. Ramirez, Jr.

Effective: January 1. 2014

Rev. 01114114
 '( J)

(5) Were you represented by counsel? If yes, provide the attorney's name:

Richard B. Gould and Norman Mcinnis

(6) What was the date that the judgment was entered?

March 31, 1997

(7) For what offense were you convicted and what was the sentence?

Capital Murder - Life, Attempted Capital Murder - Life

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

County One - Life, Count Two - Life

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

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

If you entered different pleas to counts in a multi-count indictment, please explain:

(10) What kind of trial did you have?

0 nojury Q9 jury for guilt and punishment
0 jury for guilt, judge for punishment

2

Rev. 01/14/14
-----------·· -····-···-- ...
 ,·, Ji

(11) Did you testify at trial? If yes, at what phase of the trial did you testify?

No.

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

5a yes 0 no

If you did appeal, answer the following questions:

(A) \Vhat court of appeals did you appeal to? 13th Court of Appeals

(B) \Vhat was the case number? 13-97-335-CR and 13-97-336-CR

(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
Mark Alexander

(D) What was the decision and the date oftbe decision? Affirmed, vacated 8-31-99

(13) Did you file a petition for. discretionary review in the Court of Criminal Appeals?

IZl yes D no

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

(A) What was the case number? N/A, March 5, 2000.

(B) What was the decision arid the date of the decision? Refused.

(14) Have you previously filed an application for a writ of habeas corpus under Article
l 1.07 of the Texas Code of Criminal Procedure challenging this conviction?

~ yes D no

lfyou answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals' writ number? WR-49-474-02

3

Rev. 01/14/14 ·
-----------·--·-···"--·--- ..·-·
 (B) What was the decision and the date of the decision? Denied Without Written Order

(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.

Scientific evidence was not available to applicant. Experts became

available with the last year. Witness recantation had not occurred.

Evidence is newly discovered and newly obtained. Legislation had

not passed Tex. Code of Crirn. Prod. art. 11.073.

(15) Do you currently have any petition or appealpending in any other state or federal
court?

0 yes 0 no

If you answered yes, please provide the name of the c-ourt and the case number:

(16) If you are presenting a claim for time credit, have you. exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)

D yes D no

If you answered yes, answer the following questions:

(A) What date did you present the claim?

(B) Did you receive a decision and, if yes, what was the date of the decision?

If you answered no, please explain why you have not submitted your claim:

4

Rev. o'I/14/14
 IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte §

§
Court of Criminal Appeals
Valentin moreno, Jr.
cause No.
Applicant § ---------------------

DECLARATION OF INABILITY TO PAY COURT COSTS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, Valentin Moreno, Jr. "Applicant", ProSe and respectfully files
this his DECLARATION OF INABILITY TO PAY COURT COSTS. In support of the fore-
going, Applicant would show:

I.
Applicant is "indigent" and has no means to pay court costs. The 332nd
Judicial District Court has found Applicant to be indigent.

II.
Attached hereto, is a copy of Applicant's linate bxst fund account. This
shows applicant is a poor man.

III.
I, Valentin Moreno, Jr., understand a false statement herein this ~araticn

will subject me to penalities for perjury. I verify under the penalty of perjury
that the foregoing is true and correct.
Signed this fl,f:f..-day of ~~eli , 2015.

Valentin Moreno, Jr., #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
 IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte §
COURT OF CRIMINAL APPEALS
VALENTIN MORENO, JR. §
Cause No.
--------------------
Applicant §

MOTION TO SUSPEND TEX. R. APP. P. 9.3 - PURSUANT TO TEX. R. APP. P. 2

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Valentin Moreno, Jr., "Applicant", Pro Se and respectfully files

this his MJI'ICN 'IO EUSI?El'D 'IEX. R. APP. P. RUIE 9.3 - PURSUANT TO TEX. R. APP. P. RULE 2;

and would further show this most Honorable Court the following:

I.

This most Honorable Court has jurisdiction over the parties and subject-

matter pursuant to TEX. R. APP. P. 52.

II.

TEX. R. APP. P. 9.3 requires that Applicant file the Original, and Eleven

(11) copies of his Pro Se Motion to Suspend into this court. The applicant is

proceeding in forma pauperis and has limited assistance from the freeword. The

required number of copies, on top of serving the listed parties in interest

would cause a server hardship on Applicant. TEX. R. APP. P. Rule 2, allows

this Honorable Court, for good cause shown, to suspend TEX. R. APP. P. 9.3and

allow for a leser number of copies to be filed.

III.

The Applicant makes this motion in good faith and not for purpose to

harass Respondent or this most honorable Court.

Page 1 (MTS]
 IV.

WHEREFORE, PREMISES CONSIDERED, the Applicant respectfully prays this most

Honorable Court would GRANT this motion; thereinafter SUSPENDING the required

number of copies under TEX. R. APP. P. 9.3 and, allow Applicant to file only

the Original plus one (1) copy of his Pro Se Writ of Mandamus.

Signed and executed on this /(~day o f ¥ . . t ' v , 2015.

Respectfully Submitted,
\

~,Ad~~
Applicant, Pro se
Valentin Moreno, Jr.
788216, Robertson Unit
12071 FM. 3522
Abilene, Texas 79601

Page 2 [MTS]
..
!.·

v.
VERIFICATION

I, Valentin Moreno, Jr., being incarcerated at the French M. Robertson

Unit, in Jones County, texas; do hereby verify and declare under penalty of

perjury that the foregoing Motion and statements made therein, are all true

and correct and made in good faith.

Signed and executed on this //d day of -Se~er , 2015.
-- 7

Respectfully Submitted,

U/4v~~a
Applicant, Pro Se
Valentin Moreno, Jr.

VI.
CERTIFICATE OF SERVICE

I, hereby certify that the ORIGINAL copy of applicant's Motion to Suspend

Tex. R. App. P. 9.3 - Pursuant to Tex. R. App. P. 2, was sent by certified

mail to the Clerk of the Court of Criminal Appeals, with copies sent to the

judge Mario E. Ramirez, Jr. and counsel for the judge. All was sent via u.s.
Mail.

Signed and executed on this ;ld. day of s:;,&;-,w , 2015.
~~d-v--4tf~
Applicant, Pro Se
R
Valentin Moreno, Jr.

Page 3 [MTS]
 /'
"~ ......

IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte §

§ Court of Criminal Appeals
Valentin Moreno, Jr.
Cause No.
Applicant ~ ----------------------
APPLICANT'S MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, Valentin Moreno, Jr., "Applicant", ProSe and respectfully

files this his MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS. As good cause,

applicant would show the following:

I-
JURISDICTION

The Texas Constitution grants this most Honorable court such original

jurisdiction as may be provided by law in writ of mandamus action. See, Venxn's

ann. Texas Const., Article 5, § 5.

II.
MANDAMUS ISSUE

THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORl\1 A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF ACTS UNDER ARTICLE 11.073 (b), (c)AND (d) C. Cr. P.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Applicant prays this most Honorable

Court GRANTS this motion for leave, in the interest of justice.

Signed and executed on this ;(~day of ~~GC , 2015.

Respectfully Submitted,

Page l [AMFL]
.......

VERIFICATION

I, Valentin Moreno, Jr., being incarcerated in the French M. Robertson

. of the TDCJ-CID System, in Jones County, Texas; do hereby verify and declare

under the penalty of perjury that all statements in this motion are true and

correct.

Signed and executed on this t1{~ day of ~~ , 2015.

Respectfully Submitted,

~~~~a
Valentin Moreno, Jr.

CERTIFICATE OF SERVICE

I, do hereby certify, that the original copy of Applicant's Motion for

Leave to File Writ of Mandamus was sent by certified mail to the Clerk of the

Court of Criminal Appeals, with copies sent to Respondent and Respondent's

Counsel.

signed and executed on this ;fU day of ~~U"" I 2015.

Page 2 [AMFL]
 Writ No.

IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

TEX. R. APP. P. 52

==============================================================================

IN RE

VALENTIN MORENO, JR.

RELATOR, PRO SE.

==============================================================================
ON ORIGINAL PETITION FOR A WRIT OF MANDAMUS
FROM RESPONDENT'S INCOMPLETE F.F.C.L.
DATED: JULY 20, 2015
FROM THE 332nd JUDICIAL DISTRICT COURT
IN HIDALGO COUNTY, TEXAS;
THE HONORABLE MARIO E. RAMIREZ, JR.,
PRESIDING JUDGE

==============================================================================
RELATOR'S ORIGINAL PETITION FOR A WRIT OF MANDAMUS
==============================================================================
Relator, Pro Se.
ORAL ARGUMENT: REQUESTED
Valentin Moreno, Jr.
TDCJ-CID #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
(325) 548-9035
 LIST OF PARTIES

==============================================================================
RELATOR, PRO SE.
Valentin Moreno, Jr.
TDCJ-CID #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601

RESPONDENT
Hon. Judge Mario E. Ramirez, jr.
332nd Judicial District Court
Hidalgo County Courthouse
100 r: THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORM A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF FACTS UNDER ARTICLE 11.073 (b), (c) AND (d) C. Cr. P.
IV. STATEMENT OF FACTS •.•• 2
v. ARGUMENT AND AUTHORITIES .• 2 - 5

(A)- THE: LAW . . . . . . .. . • . . . . . • • 2 - 5
(B)- MANDAMUS AND MINISTERIAL DUTIES 5 - 6
(C)- CONCLUSION 6 - 8

VI. PRAYER .• 8
VII. VERIFICATION . . . . . . . . . . . • •. . . . • . . . 9
VIII. CERTIFICATE OF SERVICE • . . • • . . . . . . . • • • . . . . • . . . . . . • • 9

==============================================================================
APPENDIX SECTION IN SUPPORT:

APPENDIX- A: JUDGE MARIO E. RAMIREZ, JR.'S; FINDING OF FACTS, CONCLUSIONS OF
LAW, RECOMMENDATION AND ORDER

APPENDIX - B: PAGES 1 - 4 OF APPLICATION FOR WRIT OF HABEAS CORPUS; WHEREIN
PAGE 4 INVOKES ARTICLE 11.073 CODE OF CRIM PROC.

i i [OPE]
 INDEX OF AUTHORITIES

==============================================================================
SUBJECT PAGE[S)

==============================================================================
CASE LAW:

Alabama v. Bozeman, 533 U.S. 146 ( 2001) . • • . • • • • • • . • • • • . • • • • • • • • . 4
Banales v. 0::urt of Jlf:p:Els fot the 'Ihriteenth Ju:licial Dist., 93 s.w.:?d 33 ('!ITA 2CD2) • ~ .6
J?o...e1 v.· Carres, 343 s.w.:?d 805 ('!ITA 2011) . • . • • • . . • • . • . • . • . • :. • • . • • 6
Eoykin v. state, 818 s.w.2d 782 ('IITA 1991) •• •• •• .. .. •• •• •. .• •• •• •• •. 3
~1 v. O::urt of J1f:p:E1s for the 'Ihriteenth Ju:licial Dist., 159 s.w.:?d 645 ('IITA 2CD5) •• 6
Ex parte Pru:::tt, 4.58 s.w.:?d 537 ('!ITA 2015) . . . . • • • • • • • • . . . • • . • • • • . • . . 4
Ex p:rte Rctbins, 2014 Tex. crim. AW· IEXIS lsn:l ('!ITA 2014) • • • . • • • • • • • . . 4,6, 7
Ex p:rte Rcdriguez, 169 334 s.w. 2d 294 ('!ITA 1960) . • . . • • . • . • • • • • •• . • •• 4
In re Bonilla, 424 s.w.:?d 528 (10CA 2014) •• •• •• •• •• •• •. .• .. •• .. 6
In reState ex rel. Ws€ks, 391 s.w.:?d 117 ('IITA 2013) • • • • 2,5
In re state ex rel. 'Iharp, 393 s.w.:?d 731 ('IITA 2012) . • . . • . . . 6
l'lbreu v state, 1 s.w.:?d 846 (Tex. llfp. Co:rp..lS Olristi 1999) • . • . • 1
State ex rel. Hill v. ChJrt of Jlfp:els for the Fifth Ju:licial Dist ~, • 6
State v. Patrick, 86 s.w.:?d 592 ('ltX'A 2CD2) . • • • •• 6
State ex rel. Rosenthal, 98 s.w.:?d 194 ('ltX'A 2CD2) • • • • . •• • • • • • • • • • • • . • . . • 6

STATUS·- CODES - RULES:
Tex. Code Crim. Proc. Chapter 2.01 7
Tex. Code Crim. proc. Chapter 11.07 1,2,3,4,5,6,8
Tex. CodeCrim. Proc. Chapter 11.073 l1 21 3 I 4, 5 161718
Tr;x. Gov't Code § 311.016(2) 4
Tex. R. App. P. 52 1
Tex. R. App. P. 52.4 8
Tex. R. App. P. 52.8 8
Tex. State Bar R. Discp. P. 15.06 7
==============================================================================
CONSTITUTIONAL LAW:
Tex. Const. art. I, § 12 5
Tex. Const. art. v, § 5 1

iii [OPE)
 IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

IN RE §

VALENTIN MORENO, JR. § CCA Case No.

RELATOR §

PETITION FOR A WRIT OF MANDAMUS

TO THE MOST HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOw,.valentin Moreno, Jr., "Relator", ProSe and respectfully files

his Petition For A Writ of Mandamus - pursuant to Tex. R. App. P. 52; and, ~d

further show the Court in support:

I.
STATEMENT OF THE CASE

The STATEMENT OF FACTS in this case are presented within the published

opinion in Moreno v. State, 1 S.W.3d 846, 852 (Tex. App. - Corpus Christi 1~,

pet. ref'd). On June 15, 2015, Relator filed subsequent habeas corpus awlicatim

under article 11.07 of the Code of Criminal Procedure alleging: (1) ~torial

misconduct; (2) ineffective assistance of counsel; (3) cumulative error; (4)

actual innocence. Relator also filed under newly enacted article 11.073 c. Cr.

P. Ann. (Vernon 2015). The State was served with same on June 23, 2015. The

State's answer was filed on Jule 8, 2015. Respondent "Trial Court" signed and

entered prepared FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION#ID~

(without a hearing) on July 20, 2015. See attached: APPENDIX- (A).

II.
STATEMENT OF JURSIDICTION

The Texas Constitution grants this most Honorable Court such original

jurisdiction as may be provided by law in writ of mandamus actions. See, Verrxn's

Ann. Texas Constitution, Article 5, § 5. Mandamus is appropriate to compel the

Page 1 [OPWM]
 performance of a judicial duty, particulary where the duty is ministerial. See,

In reState ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013).

III.
ISSUE PRESENTED FOR RELIEF

THE RESPONDENT HAS ABUSED ITS DISCRETIONARY POWERS BY FAILING TO
PREFORM A MANDATORY MINISTERIAL ACT IN FAILING TO ENTER EXPLICIT
FINDINGS OF FACTS UNDER ARTICLE 11.073 (b), (c) AND (d) C. Cr. P.

IV.
STATEMENT OF FACTS

On June 15, 2015, the Relator properly filed subsequent application for

a writ of habeas corpus under article 11.07 C. Cr. P. and 11.073 C. Cr. P.

(vernon 2015). After the State prosecutor was served with the application on

June 23, 2015, it made no efforts to retrieve any additional evidence to be

filed into the record. When the State filed it response on July 8, 2015, it

also filed proposed FINDINGS OF FACTS, CONCLUSION OF LAW, RECOMMENDATION AND

ORDER to Respondent. See, attached APPENDIX- (A). In none of the State's

pleadings did it ever cite to, mention, or reach the required fact findings

under Article 11.073 (b),· (c) and (d) c. Cr. P. Respondent requested no

affidavits from trial counsel, police, prosecutors, experts, or witnesses.

No hearing was conducted to expand this record. Instead, on July 20, 2015,

Respondent merely signed and dated APPENDIX- (A). The Relator filed ~CNS

to each of the blatant omissions; plus has filed separate motion before this

Court seeking an order to abate and remand this cause back to the Respondent

so as to perform these ministerial duties. However, at this time, Relator has

·been informed that the record and current ,application has not been filed in

this Court. See, APPENDIX- (B). In the interest of justice Relator files this

action seeking order for Respondent's performance to these ministerial duties.

v.
ARGUMENT AND AUTHORITIES

(A) - THE LAW:
Page 2 [OPWM]
1 a. This Court construes a statute in accordance with the plain meaning of

its text unless the plain meaning leads to absurd results that the legislatUffi

·could not have possibly intended. See, Boykin v. State, 818 s.2d 782, 785 (~.

Crim.App. 1991). Article 11.073 in the Texas Code of Criminal Procedure~'

in pertinent part:

(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the
convicted person's trial; or
(2) contradicts scientific evidence relied on by the State at trial.
(b) A court may grant a convicted person relief on an application for
a writ of habeas corpus if:
(1) the convicted person filed an application, in the manner provided
by Article 11.07, 11071, or 11.072, contaning specific facts
indicating that: ·
(A) relevant scientific evidence is currently available and was not
available at the time of the convicted person's trial because the
evidence was not ascertainable through the exercise of ~le
diligence by the convicted person before the date of or during the
convicted person's trial; and
(B) the scientific evidence would be admissible under Texas Rules of
Evidence at a trial held on the date of the application; and
(2) the court makes the findings described by Subdivisions (l)(A) and
(B) and also finds that, had the scientific evidence been p~ted
at trial, on the predonderance of the evidence the person would
not have been convicted.
(c). For purpose of Section 4(a) (1), article 11.07, ... , a claim or issue
could not have been presented previously in an original application
or in a previously considered application if the claim or issue is
based on relevant scientific evidence that was not ascertainable
through the exercise of reasonable diligence by the convicted person
on or before the date on which the original application or a p.reviaEly
considered application, as applicable, was filed. ·
(d) in making a finding as to·whether relevant scientific evidence was
not ascertainable through the exercise of reasonable diligence on or
before a specific date, the court shall consider whether the field
of scientific knowledge, a testifying expert's scientific ~l~e,
or a scientific method on which the relevant scientific evidence is
based has changed since:
(1) the applicable trial date or dates, for a determination made with
respect to an original application; or
(2) the date on which the original application or previously o:::nsidere::'l
application, as applicable, was filed, for a determination made
with respect to a sebsequent application.

Page 3 [OPWM]
 This court may take JUDICIAL NOTICE of the Legislature's use of word: .

SHALL in Art. 11.073 (d) C. Cr. P. (the court shall consider whether .... ) . 'Ihe

·word SHALL is defined as "the language of command". Alabama v. Bozeman, 533

U.S. 146, 153 ( 2001), and is generally imperative or mandatory in its rre:mirg ..

See, e.g., Section 311.016(2) Texas Government Code Ann. (Vernon 2015). This

is what causes the statute to become a "ministerial" duty to act.

2 a. Just recently, in the case of Ex parte Pruett, 458 s.w.3d 537 (1ex.crim.

Afp. 2015) Judge Alcala filed dissenting statement which addressed a misurrl2rstarrl-

in:J this Court was having with regards to the Whom "the court" was required to
make such findings under Art. ll.073(b),(c) and (d) c. Cr. P. See, Id. at 541-
542. With all due respect, the Relator would respectfully point to this Court's

well established (55 years) holding under Ex parte Rodriguez, 169 Tex. Crim. 367,

334 S.W.2d 294, (1960) where this Court continues to hold that "the trial court

is the appropriate forum for fact finding." According to art. 11.073 (b) ( 1) (A)

and (B) it would require the trial court to gather together such facts ino~

to make such a determination to then make its findings of fact under (b)(2).

With regard to Art. ll.073(b)(l)(A), that would require Relator's former def~

attorney to file an affidavit or give live testimony in record explainingwhether

or not such had been available, and if so, why they chose not to offer it at trial.

Moreso, as is the instant case, because Relator raised the claim of his former

defense counsel's ineffective assistance for failing to have done such. With

regard to art. ll.073(c) c. Cr. P., that would have required the trial court to

have 'made a finding that Art. 11.07, § 4(a)(l) c. cr. P. was me4due to the new
law under Art. 11.073 C. cr. P. See, e.g., Ex parte Robbins, WR-73, 484-02;

2014 WL 6751684; 2014 Tex. Crim. App. LEXIS 1900 (November 2014). Finally, Art.

ll.073(d) c. Cr. P., also requires the trial court to make a finding througg

the exercise of reasonable diligence, whether the science had changed, which

Page 4 (OPWM]
would also have required affidavit or live trial testimony cx:m:in:] fran Relator's

newly available experts, former defense counsel and the former prosecutor.Nxe

of these required factual findings were completed, nor remotely mentioned by

the Respondent inside APPENDIX - (A) attachered heretowith.

3a. The Texas Constitution declares that "the writ of habeas corpus is a

writ of right, and shall never be suspended . " TEX. CONST., Art. 1, § 12. The

Texas Constitution mandates that the Legislature "shall enact laws to render

the remedy speedy and effectual." Id. Accordingly, the Legislature codified

procedures for Giling applications for writ or habeas corpus. See, TEX. CODE

CRIM. PROC. arts. 11.07 (procedures for applications in non-death cases);

11.073 (procedures related to certain scientific evidence). For an indigent

inmate wishing to pursue an application for a writ of habeas corpus in a non-

death case under arts 11.07 and 11073, as here, ordinaryly the burden falls

solely on him, without appointed counsel, to initially file his application.

An applicant will usually get only one bite at the habeas-corpus apple because

Section 4 in part. 11,07 precludes a court from considering the merits of or

granting refief based on a subsequent application unless the application crntains

sufficient specific facts establishing one of the two limited exceptions to the

one-bite rule. See, TEX. CODE CRIM. PROC. art. 11.07, § 4. Merein, the Retalor's

application met this bur,den, which was ignored by the State and respondent. See,

APPENDIX - (A)

(B) - MANDAMUS AND. MINISTERIAL-ACT REQUIREMENT:

lb. To be entitled to mandamus relief, the Relator ~ust show two things:

(1) that he has no adequate remedy at law, and (2) that what he seeks to ~1

is a ministerial act. See, In re State ex rel. w=eks, 391 s.w.3d 117, 122 (Tex.Crim..A[p.

aJl3). With respect to the "no adequate remedy at law" requirement, this Court

has held that a remedy at law, though it technically exists, "may nevertheless

be so uncertain, tedious, burdensome, slow, incovenient, inappropriate, or

Page 5 [OPWM]
ineffective" as to be inadequate. See, ~1 v. O::urt of Jlf:t::EB].s for the 'Ihirteenth

.,Ju:licial Dist., 159 s.w.3::J E45, 648-49 (Tex.crim.aw. 2CD5); S2e a.J.ro In re State ex rel. 'Ihrrp,

393 s.w.3::J. 731 (Tex.crim.Afp. 2012) (sane).

2b. The ministerial-act requirement is satisified if the Relator can show a

clear right to relief sought. See, B::Me1 v. C3rnes, 343 s.w.3::J f5JS, 810 (Tex.Cr'im.Afp.

2011). A clear right to relief is shown when the facts and circumstances dictate

but one rational decision "under unequivocal, well-settled (i.e., from extant

statutory, constitutional, or case law sources), and clearly controlling legal

principles." Id. Although this Court has sometimek suggested that a legal issues

status as one of first impression meant that the law was not well-settled. See,

Parales v. Court ofJif:t::EB].s for the 'Ihirteenth Ju:licial Dist., 93 s.w.3::J 33, 36 (Tex.Cr'im.Afp.

a:D2); State ex rel. Hill v. Cburt of J1f:t::EB1s for the Fifth Dist., 67 s.w.3::J 177, 181 (Tex.Cr'im.

Afp. 2011); at lEE.St 1:\.D cas=s - State v. Patrick, 86 s.w.3::J 592 (Tex.crim.Afp. 2CJJ2) ard State ex

rel. ROSEnt.h:li, 98 s.w_.3::J 194 (Tex.Cr'im.Afp. a:D3) - contain dissents that were p:-edicatoo

at least in part upon the fact that the issue was on of first impression. See

also, In re Pcnilla, 424 s.w.3::J 528, 533-34 (Tex.crim.Afp. 2014)('Ihe issue tefore us is ooe of

first :inpressim). One lesson from these cases is that an issue of first irrpressim
/

can sometimes qualify for mandamus relief when the factual scenario has never

been precisely addressed but the principle of law has been clearly established.

Herein, the Relator has made this prerequisite showing before this most Hxorable

Court.

(C) - CONCLUSION

Inseide APPENDIX - (A) at Pages 3-4 under CONCLUSIONS OF LAW, the R~t

did a fancy "Texas Two-Step" dance typing out art. 11.07, § 4(a) (2012), which

omitted any mention of the new law brought under art. 11.073 (2015). As this

Court has already ruled in Ex parte Robbins, supra, the new Art. 11.073 c. Cr.
P. is considered to be "New Law" under Art. 11.07, § 4 (a) (1) C. Cr. P. Then,

the Respondent makes a vague mentioning of Relator's newly available pro bono

Page 6 [OPWM]
experts, and their proffered sworn reports at Section 4, Page 4 APPENDIX- (A),

but then makes [a]bsolutely no findings whether or not they adhere toArt. ll.073

(b) , (c) or (d) C. Cr. Pr. Indeed, those reports need not have ITBd:: "an affimative

showing of actual innocence" but simply show that the field of scientific

knowledge, or a scientific method had changed since Relators trial, or the date

on which the original application or a previously considered application was

filed and determined. Inside the Court's opinion in Robbins, it explicitly ~d

that when the Texas Legislature enacted Art. 11.073 c. Cr. P., it chose a~cy

over finality. Id. 2014 tex. crim. app. LEXIS 1900 at *68. APPENDIX - (A) ignored

this court's learned reading of art. 11.073 c. Cr. P., and its Legislatures
intent. ror it has once again chosen finality over accuracy. It simply ignored

the vast newly available evidence and discovered material, eculpatory, and

impeaching evidence the Relator filed before it. It allowed the state prosecutor

to file an answer which ignored the same and attempts to mislead this Court by

making known false statements, then typed it up for Respondent's signature,

APPENDIX - (A) which followed the same error. [l] Had the respondent truely

reviewed the relator's subsequent application for writ of habeas corpus, it

would have seen the evidence, the prosecutors false statements and references

to Art. 11.073 c. Cr. P., see APPENDIX- (B) Page 4 section (C). it would then

become aware of its required ministerial duties urder art. ll.073 c. Cr. P. rue to these

m.issicns, the Relator is beirg deniro access to 'Ihe Great Writ urder 'IEX. CXNSI'. art. 1, § 12.

Mandamus relief is appropriate in this case of first impression.

[ 1] > As a rratter of further first :irrpressim, Relator a.lro a:ntErrls that havirg a State
Pra3ecutor v.h::6e office prc:eecutro such awlicant, then have the authority to write
cut ANStffiS arrl the a:nvicting ccurt' s FINDII"GS CF FACIS, crmiJSICNS CF IJlW, RED::::l'4-
JVJENDATICN AND~ for signature raises a clEBr o::nflict of interest; rroreso, \J1En
Brcdy errors, Frau:) or Ccnce:"illrent is ctmgro a::3ainst thEm or their office. See, e.g.,
Rule lS.OS(C) arrl (D) in the Texas State Bar Rules of disciplinary Pr'c:x:::Edure, last.
arrerdErl in LD13. Will.e their prirrary duties fall urder Art. 2.01 c. Cr. P., to cdnit
the truth, that they WJ:a'Bfully a:nvictro rore:::ne due to Bra:::ly errors, or Frau:) arrl

Page 7 [OPWM]
 CmcEaJm::nt, w::ul.d thEn allru for tiE wragfully Irrp:b.scned Pers:::n' s relEBSe fran
pris:n ard tiE start of the fa.Jr Yffir l:imitatims to seek State l33r Grievance
cqainst tluse guilty of s.x:h miso:rrl.ct.. Hc:Nl does s..x:h o:nflict help adri.eve
"accuracy" over firBlity?

VI.
PRAYER

WHEREFORE, PREMISES CONSIDERED, the Relator humbly prays that this most

Honorable Court would:
(A)> ORDER the Respondent to file response under Tex. R. App. P. 52.4;
(B)> GRANT requested mandamus relief under Tex. R. App. P. 52.8(c) and
(C)> ISSUE PUBLISHED OPINION AND ORDER to the Respondent that· it shall
conduct appropriate hearings and therefore enter required findings
under Art. ll.073(b), (c) and (d) c. Cr. P. (2015); which shall then
be returned with the established record under Art. 11.07, § 3(d) c.
Cr. P.

IT IS SO PRAYED.
RESPECTFULLY SUBMITTED,
signa:] en this Ji_ &.y ofcfJ~Jdea , 2015.

~~-~~C)L
Relaor~e
Valentin Moreno, Jr., #788216
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601

Page 8 [OPWM]
A P P E N D I X - A
 . . - - - - - - - - - - - - - . . - - - - - - - - - - ---·-·· ·-

FILED
.,
AT 42-5 O'CLOCK_f_M·

Cause No. CR-0517-96-F(3) JUL -8 2015
Ex parte §
§
Valentin Moreno, Jr., §
§
Applicant §
FINDINGS OF FACT, CONCLUSIONS OF LAW,
RECOMMENDATION AND ORDER
Having considered the application for Writ of Habeas Corpus, the State's

response, and the Court's files in the above-numbered cause, including records of

the underlying criminal case, the Court makes the following Findings of Fact and

Conclusions of Law:
-i
FINDINGS OF FACT

1. On March 3, 1996, Applicant convicted by a jury of the offense of capital

murder and was sentenced to life imprisonment in the institutional Division

of the Texas Department of Criminal Justice.

2. On August 31, 1999, the Court of Appeals for the Thirteenth Judicial District

affirmed Applicant's judgment and sentence for capital murder.

3. On March 5, 2001, Applicant filed his first application for writ of habeas

corpus under Article 11.07 of the Texas Code of Criminal Procedure,

alleging: ( 1) lack of jurisdiction; (2) the trial court vio91ated his right to due

process by proceeding to trial with eleven jurors; (3) ineffective assistance of·

trial counsel; (4) ineffective assistance of appellate counsel; (5) prosecutorial

misconduct; and (6) actual innocence.
't

lO.This Court must determine whether or not there are. . controverted,
. . . . previously

unres-olved facts, material·to the legality ofApplicant's conf~ement.no later

than July 26, 2015. See id. § 3(c).

CONCLUSIONS OF LAW

1. If a subsequent application for writ of habeas corpus 1s filed after final