Villanueva, Robert

No. . 0 8 C: R 3 0 5 I - 8 3 - I IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS RECEIVED IN § Pet ®OY.W OF CRIMINAL APPEALS Robert Villanueva § vs.

Michell Slaughter, § Respondent DEC.22 2015 Judge of Court §

· Abel Acosta, Clerk Petitioner's Request for Leave to fil~·

his petition for Writ of Mandamus TO THE HONORABLE JUDGE OF SAID COURT:

Comes now, Robert Villanueva, petitioner herein, respectfully moves this Honorable Court for leave to file the attached petition for Writ of Mandamus.

Robert Villanueva, Pro Se McConnell Unit 3001 s. Emily Dr. Beeville, Trexas 78102

1.·

Petition foe Wcit of Mandamus TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, Robect Villanueva, heceinaftec known as the petitionee, in the above styled and numbeced cause, to .request this Honorable Couct gcant this petition foe Wcit of Mandamus, and would in suppoct theceof show:

:I. That the petitionee has attempted to exhaust all State cemidies by filing a Motion foe Focensic DNA Testing, pucsuant ·;.to Tex. Code od Ccim Pcoc. Act. 11.073 on the I Q. ~. day of Nov , 2015, with the tdal Couct in this cause, cegacding the illegal detention of the petitionee. The DNA test in this cause would show that the petitionee was not the pecson who committed this offense, and that the item presented foe testing would cleaely show he is not the contcibutoc. II. That effective this date , De.c. J I ] ,2015, no action has been taken on the Motion foe Focensic DNA Testing, noc have the p~titionec been noticed as to any .reason foe the Couct's delay. The petitionee has filed timely .request foe judicial eeview,·but the tdal Couct ignoced the eequest. As demonstrated with the statement of facts presented heeein, This Honoeable Couct will be able to .recognize the intentional diseegaed foe inmate eights demonstrated by the tcial Couets of Galveston, County, Texas. Petitionee assects, facts +h<tt he filed his motion foe foeensic DNA testing on the I~ i:b.. day of NoVf?~~ef", 2015. To this date, no .response has been eeceived fcom the tcial Coucts. The Cleek, the ticla Coucts has a ministerial duty to .respond to the .request foe judicial .review. Thecefoce, petitionee's .request that this Honorable Couct gcant his petition foe Wcit of Mandamus in this cause, and any othec .relief deemed by this Honorable Couct.

Robect Villanueva, Petitionee

CERTIFICATE OF SERVICE

The undersigned heceby certifies that a tcue an ~occect copy of the foregoing was mailed, postage pcepaid, this the 17-:_ day of Dec.. , 2015. To the Couct of Cciminal Appeals, Austin, Texas .

Pentionec

2.

I~

JOHN D. KINARD DISTRICT CLERK GAL VES'IDN COUNTY, ·TEXAS I .I

GALVESTON OFFICE 600 59th St. Ste. 4001 ~ALVESTON, TX 7755+-2338

In Re: i Robert . V1llanueva - Cause No. 08 -CR-3051-83-l I

In the 405th District Court, District Court of Galveston County, Texas.

Dear Mr. Kinard; Enclosed is Applicant's motion for Appointment of Counsel, pursuant to Texas Code of Criminal Procedure, Article ·11.073(1) (d). Will you please notify me of the purposed docketting date using the self addressed stamped envelope enclosed? Thank you for your time and attention in this matter. Sincerely,

ROBERT VILLANUEVA 1662449 3001 S. EMILY DR~ BEEVILLE, TX 78102 Signed this day of Nov J 8~ 1 2015

08- CR -3051 DCC ORR Correspondence 1131266

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Cause No. 08-CR-3051

Robert Villanueva § § vs. § § The State of Texas §

APPLICANTiS REQUEST FOR COUNSEL FOR DNA TESTING

Comes Now Robert Villanueva, in the above styled cause and motion to this Honorable Court to request counsel in the matter of untested material evidence, presented by the State during his September 2010 trial in the 405th District Court. Pursuant to Texas Code of Criminal Procedure, Article ll.073(l)(d). Applicant contends that duriog trial, prosecutor Bill Reed revealed to the trial court that evidence was missing. (Glass Crack Pipe) In addition, biological evidence (Hair) found in the victim's right hand, at the time of the alleged murder, was also not tested in accordance with accepted police and scientific procedures. STATEMENT OF FACTS On July 8, 2015 Applicant received newly discovered evidence from trial counsel's, co-counsel, attorney Holly Cooper-Roell, that Mr. Cochran confessed to her, ''the prosecutor did turn over more evidence in the middle of trial. He told me the month of your conviction that Mr. Reed had evidence secrected [by him]." Mrs. Roell's [by him], insinuates that this is Mr. Cochran's evidence, that was secreted. Mrs. Roell added, that she will cooperate with the sentencing court because "trust me, I have a whole lot more to say." (Exhibit #1) Brady v. Maryland, 373 U.S. 83 (1963) requires the prosecution to disclose any evidence that might be material to guilt, whether or not it is exculpatory. The State has no duty to see~ out exculpatory information independtly on the Applicant's behalf, but once such information comes into State's possession, then duty and Brady rule attaches. See Palmer v. State, 902 S.W. 2d 561 (Te~. App. 1st Dist. 1995); Morton v. State, 326 S.W. 3d 634 (Tex. App. 3rd Austin Dist. 2010) Although State photo exhibits, of the missing evidence was entered into trial, State's expert witness from the DPS Crime· Lab asserted, that she never received a glass crack pipe for "this case·.." The lab expert also contended that no DNA testing •,.yas performed on the biological evidence (Hair) found in the victim's right hand at the time of the murder, that no rquest for 'testing was 08-CR-3051 OCRFC Request For Counsel 1131273 1

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asked of the evidence by either the Sheriff's Department nor the State. Without that request no testing would be performed. State prosecutor,- then insinuated, that because the hair found was black, and the Applicant, has black hair, that the donor of the hair found in 'the victim's right hand at the time of the murder, does infact belong to _the Applicant. Having no DNA test results available for trial, and the State prosecutor's line of_questioning to the lab e)cpert, while on the witness stand, placed the Applicant in the victim's right hand not only as a party to the offense, but as a principal. Exhibit #2 in support of the evidence existing, Exhibit #3 is in support that neither the glass pipe or hair was ever subjected to DNA testing on the case sumrnary. (Party Information) · 7/22/2015 II KutzneEr v. State, 75 S.W. 3d 427 (T_ex., Cr. App. 2002)' did not decide that a defendant must prove his "actual innocence" as a condition to establishing his right to DNA testing. See Kutzner, 75 S.W. at 438, 439. Instead, Kutzner decided that a defendant proves his right to DNA testing of evidence by showing that exculpatory DNA results would establish the defendant's innocence. See Blacklock v. State, 235S.W. 3d 232, 233 (Tex Crim. App. 2007) · -~--~ • :.ApplicabL.Yillanueva,:::cO.ntends that~.a ~constitutional error assisted in the ,conviction of ''he" who is actually innocent. During trial, alleged co-defendant Marcus Shuff refused to testify by pleading his 5th Amendment right to be silent, because niether the defense nor the State could question Shuff about Nov. 21, 2009 video confession of how, why, and when he "soely" planned and executed the murder for which the Applicant was on trial for, the video was not allowed to be presented to the jury. The defense was also denied an opportunity to properly confront and cross examine the lead detective of this case, who conducted that Nov. 21, 2009 video confession by Shuff. The defense was not allowed to test the "· Detectives recollection or to probe into any details of the-video, so that the jury might judge for itself wheter the detectives testimony was worthy of belief. Applicant's EXhibit #4 provides that the Nov. 21, 2009 video confession was used in trial, one year after Applicant's conviction, presented by the vary same prosecutor who argued'at the Apllicant's September 2010 trial, not to play the video. Had this video been presented to Applicant's jury, it would have provided the following facts; 1) That Shuff acted alone during the offense and nobody assisted him in his plot to murder the victim.

2) No where on the video was the Applicant mentioned as a party or a principal to the offense. 3) The video indicates how Shuff's hair presumptively ended up in the victim's right hand. (Untested evidence) 4) The video·indicates that Shuff stated he used crack cocaine the night he hit Lacy with the bat. (Untested evidence), 5) Shuff statement of how where, and weapon used was corroberated by three State expert witnesses, including where he stated he threw the murder weapon. During trial there was no physical evidence of guilt presented by the State against the Applicant. Only a theory for which the State clearly corroberated was unassailable by presenting a total different theory to convict Marcus Shuff in November of 2011, who clearly provided a credible and corroberated video confession of what actually happened to the victim. 'To which again, was corroberated by three State expert witnesses in both trials. Exhibit #5 in support that the State presented two di~rent theories within the two trials. 'Whether rooted directly in the Due-Process Clause of the Fourteenth Amendment or in the Compulsary Proces~, or the Confrontation Clause of. the Sixth Amendment. The United States Constitution guatantees criminal petitioner's a meaningful opportunity to present a "complete" defense; The Sixth Amendment right to present a complete defense· encompasses a petitioner's' right under the confrontation clause to Rebut the State's evidence through cross-examination. ·The decision "Law" not to allow favorable evidence to an accused upon request and the denial to properly confront and cross-examine the Detective who conducted the Nov. 21, 2009 video confession, violated the Applicant's Due Process and confrontation rights. Kittleson v. Dretke, 426 F.3d 306 (5th Cir. 2005) By denying the Applicant favorable evidence, the trial court significantly curtailed the Applicant's ability to properly confront and cross-examine the prosecution's most important witness. Lead Det. Sgt. Mark Booner and may well have violated the Applicant right to review evidence favorable to an accused upon request, where the evidence is material to either guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963) That right is unquestionably protected by the Due-Process Clause; See also United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). The Brady rule is based on the requirements . of Due-Process. It's purpose ..is to ensure that a miscarriage of ;

justice does not occur. United Stat~s v. Bagley, 473 U.S. at 675 (1985). The right to confront and cross-examine witnesses and·to ~all witness in one's own

behalf have long been recognized as essentials to due process since (1895) Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct 337, 339-340, 39 L.Ed. 409 (1895). It is implicit in the constitutional right of confrontation, and helps assures the accuracy of the truth determining process. Dutton v. ,Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed 2d. 213 (1970) Having excluded All testimony and statements by Shuff during trial, clearly pt'~Vid~d_.no credible evidence showing that at the time of the offense· the parties were acting together, each contributing some part towards the execution of their common purpose. See Wooden v. State, 101 S.W. 3d 542, 546 (Tex. App. Fort Worth 2003). Adding that Marcus Shuff was in the Galveston County Jail, arrested two days prior, for stealing the victim's car, and was not released until hours before the morder on Oct. 5, 2007·. Had the biological evidence been subjected to proper DNA testing capable of determining the identily of the donor of the hair found in the victim's right hand, as Applicant.belive is possible today, and such results excluded the Applicant as the donor, it is reasonably probable that the Applicant would not have been prosecuted' or convicted. PRAYER ' Applicant prays this Honorable Court grant counsel in the matter of DNA testing and to determine what action should be taken on the cred;ible allegations provided by Mrs. Roell which clearly violated Applicant's constitutional rights of a fair trial.

Signed this day on _ _ _ _ _ _2015,

Robert Villanuera TDCJ#1662449 3001 S. Emily Dr. Beeville, TX 78102

/:f.:; :; :·;~~::~

~{~ ti~J: Cause No. 08-CR-3051

THE STATE OF TEXAS § IN THE DISTRICT COURT OF § VS.· § 405TH JUDICIAL DISTRICT § , ROBERT VILLANUEVA § GALVESTON COUNTY, TEXAS

AFFIDAVIT OF INDIGENCY

I Robert Villanueva, do certify I am without means to pay these proceed- ings and provide the following facts in support: 1) I am a prisoner within the Texas Department of Criminal Justice and not paid ' for labor. 2) I hNe no real tangible property to considered as collateral for debt .. 3) I am not married, nor. do I have any means of viable support. 4) I have no means to discharge or liabilities.

~R--=-:~~· _.._V__,..·~~QN\~~~. . -'1/ Robert Villanueva . ~/I f:5 TDCJ#1662449 3001 S. Emily Dr. Beeville, TX 78102

08-CR-3051 DCAFFID Affidavit 1131271

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HOLLY COOPER-ROELL

ATTORNEY-AT-LAW HOLLYCOOPERROELL@YAHOO.COM

July 8, 2015 TO: Mr. Robert Villanueva Hon. M. Slaughter TDCJ# 1662449 405th Jud. District Court 3001 S. Emily Dr. 600 59th Street Beeville, Texas 78102 Galveston, Texas 77551

RE: Please give post conviction relief to Case# 08.,.. ~~- 1o52

Dear Sir: i As you know I once represented you as we were friends in the Clear Lake area. Your fainily has contacted my law office ahd asked me to return their.call, btit I made a decision not to. I know that you were NOT granted a fair trial. I now rethember and know many details regarding Mr. Cochrans' representation of you at trial. He told me in confidence the prosecutor did tum over more evidence in the middle of trial. He told me the month of your conviction that Mr. Reed had evidence secreted[by him] I guess , is what you call it. I believe under the Mortenson bill that neither the DA who tried the case or Mr. Cochran has immunity. I sincerely hope the Judge appoints you new counsel and removes Mr.. Martin as I heard he used to office with Mr. Cochran so how fair is that? I haYe heard about 1'.x.ro years ago that "maddog' has g~:m.e free and continues to make the citizens in the area of Bacliff concerned[ more later about that]. The Chief M.E. who testified for the State has since been released from his job with allegations. Mr. Cochran fell in love with the investigator that was part of the retainer fee paid by your mother and had his own obsessions the week of your trial. I will cooperate with the sentencing court because trust me I have a whole lot more to say.

SIGNED: ci6~ C'J rz~ 21 27 BROADWAY GALVESTON, TX. 77550 409.763.2454X22 FAX[409.763:4309] ANGLETON OFFC. 979.583.8165