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 +h373 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
Ill I111111111111111111111111111111111111
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
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
3
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
4
/: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