MORENO, VALENTIN Jr.

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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