The opinion
WR-82,629-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/10/2015 1:25:30 PM
Accepted 9/10/2015 2:15:25 PM
ABEL ACOSTA
WR-82,629-01 CLERK
TR. CT. NO. W10-00678-P (A)
RECEIVED
COURT OF CRIMINAL APPEALS
EX PARTE § IN THE TEXAS 9/10/2015
ABEL ACOSTA, CLERK
§
§ COURT OF
§
GERARDO REYNA § CRIMINAL APPEALS
OBJECTIONS TO THE TRIAL COURT’S FINDINGS
AND REQUEST FOR REMAND FOR HEARING
Now comes Gerardo Reyna, Applicant, and files these objections to
the trial court’s findings of fact and conclusions of law recommending re-
lief be denied. In support thereof, Reyna shows the following:
I. Introduction
A shooting occurred at a residential area in Irving at approximately
11:30 p.m. on June 15, 2008. The Dallas Court of Appeals, in its opinion
on Reyna’s direct appeal, characterized the record as establishing that
Reyna shot the deceased as he was dropping off passengers, including the
mother of Reyna’s child. Reyna v. State, No. 05-11-00995-CR, 2013 WL
1317223 (Tex. App.—Dallas 2013, pet. ref’d). At trial, however, Reyna
maintained he was not the shooter. The State’s primary witnesses other-
wise were associates of Reyna who implicated him in the shooting.
1
In Reyna’s writ application he complained, among other things,
that the prosecution failed to disclose that it offered three key witnesses
leniency in exchange for their testimony, which each received after the
jury found Reyna guilty. The trial court refused to grant relief, however,
because it found: (1) the prosecutor denied offering any witness leniency;
(2) that Cardenas received favorable treatment in federal court did not
necessarily reflect any deal; and (3) Medina and Cardenas would have
testified, regardless.
The trial court’s findings are incorrect. There is explicit evidence
that the prosecution offered deals to the witnesses. And that is all that
matters. Whether the witnesses in fact benefited, or would have testified
regardless, is not dispositive. Accordingly, Reyna objects to the trial
court’s findings of fact and conclusions of law denying relief.
II. The offer of leniency, not just agreed-upon deals, must be
disclosed to the defense
In United States v. Giglio 405 U.S. 150, 152 (1972), the Supreme
Court considered whether the government’s failure to disclose an alleged
promise of leniency made to a key witness in return for testimony violates
a defendant’s right to due process, thus requiring a new trial. In that
2
case, Giglio filed a motion for new trial based on newly discovered evi-
dence indicating that the government failed to disclose a promise not to
prosecute a key witness in the case in return for his testimony. Id. at 151.
The Supreme Court found that at least one assistant United States at-
torney told the key witness that he would not be prosecuted if he cooper-
ated with the government. Id. at 153. The failure to disclose the promise
constituted a Brady violation and required a new trial because “the false
testimony could . . . in any reasonable likelihood have affected the judg-
ment of the jury . . . .” Id. at 154 (citing Napue v. Illinois, 360 U.S. 264,
271 (1959)).
In United States v. Bagley, the Supreme Court considered whether
failure to disclose impeachment evidence, that is, the possible bias or in-
terest of a witness resulting from inducements made by the government,
violated the defendant’s right to a fair trial. 473 U.S. 667 (1985). In Bag-
ley, defense counsel requested in discovery motions that the prosecutors
disclose any inducements made to any witnesses. Id. at 669-70. The pros-
ecution failed to disclose that it had given two key witnesses a possibility
of financial reward for their testimony if the testimony led to the convic-
3
tion of the defendant in the case. Id. at 671. The Supreme Court re-
manded the case to the Court of Appeals to consider whether the testi-
mony of the witnesses was “material.” Id. at 684.
It is crucial to note that offers of leniency, not just firm deals, are
required to be disclosed. In Giglio, the Supreme Court noted two offers:
in one affidavit a promise was made to the witness that if he testified, he
would not be prosecuted; in the second affidavit the witness was told he
would definitely be prosecuted if he did not testify and that if he did tes-
tify he would be obliged to rely on the “good judgment and the conscience
of the government” as to whether he would be prosecuted. Giglio, supra,
405 U.S. at 153. Thus, it appears to this Court that even in Giglio, there
was some question as to the directness and unequivocality of the agree-
ment not to prosecute.
This Court has likewise required the disclosure of offers of leniency.
In Burkhalter v. State 493 S.W.2d 214 (Tex. Crim. App. 1973), both the
witness and his attorney admitted that, although no direct promise of
immunity from prosecution was ever conveyed to Whitehurst, he was told
that his testimony “could help his case.” This Court found it unrealistic
4
to draw a line between an outright promise not to prosecute and a very
real inference not to prosecute.
III. All three witnesses benefitted from their testimony
Michael Livermore, accompanied by his attorney, testified he shel-
tered Reyna while the police were searching for him. (RR4.15-22). At the
time of his testimony, Livermore had pending charges for burglary and
drug possession and was on probation for a gun charge. (RR4.25). Liver-
more’s probation revocation hearing was reset while Reyna’s case was
pending. Ultimately, Livermore received only a 30-day sentence on the
firearm charge and probation on the drug charge. The burglary case was
reduced to a misdemeanor, for which Livermore received a thirty-day
sentence. Livermore’s records are attached as Exhibit D.
Jesus Cardenas, who also appeared as a witness accompanied by
his attorney, had pending DWI and retaliation charges. (RR3.65) Addi-
tionally, he was facing sentencing in federal court on charges for posses-
sion of methamphetamine and possession of firearms. (RR3.103). Though
his cases were reset during the pendency of Reyna’s trial, he denied re-
ceiving any offer for assistance with his cases. (RR3.106, 118). Following
5
Reyna’s trial, however, the pending State charges have never been re-
solved, and the federal sentence was reduced because of his assistance to
the State in Reyna’s case. See Exhibits E (state records) and F (federal
record).
Roman Medina, who also appeared as witness accompanied by his
attorney, had pending charges of felon in possession of a firearm. Accord-
ing to his videotaped statement, made the day of his arrest (Exhibit G),
Medina was immediately concerned about the charges against him. Alt-
hough during his testimony Medina denied loading the weapons into his
car, a contemporaneous police reports contradicts his trial testimony. See
Exhibit H. Medina’s case was repeatedly reset because Medina was serv-
ing as a witness. Less than one month after Reyna’s trial, Medina’s
charge was reduced to a misdemeanor and he was sentenced to time
served. See Exhibit I.
IV. The evidence clearly indicates that each witness was of-
fered leniency in exchange for his testimony
In recommending that Reyna’s application for a writ of habeas cor-
pus be denied, the trial court found, on the prosecutor’s word alone, that
no plea deals were offered. See Findings at 10. This is false.
6
First, the Court expressly addressed the deal Cardenas received.
More significantly, though, there is no mention of the leniency accorded
witnesses Livermore and Medina. The trial court has an obligation to ad-
dress each and every claim raised.
In fact, all three witnesses had pending charges, and all three wit-
nesses’ cases were passed repeatedly until Reyna’s case was tried. The
reset forms explicitly indicate that resets were granted for anticipated
testimony. The very existence of such an arrangement inherently proves
an expectation of reward—there is no other reason to reset the case. Fur-
ther, while the Court found that Medina and Cardenas would have testi-
fied anyway, the finding is undermined by the fact that resets were
granted in order to procure their testimony. The only logical conclusion
is that the state expected witness co-operation and was postponing sen-
tencing to achieve that goal.
Moreover, Medina’s attorney explicitly acknowledged that Medina
had been threatened with a federal prosecution if he did not co-operate.
(Writ Hearing-6) She also admitted telling Medina that his testimony
would benefit him. (Writ Hearing-7) In order to get that benefit, his cases
7
were passed several times expressly so that he could testify. (Writ Hear-
ing-7) Even though a specific bargain was not made, she understood that
the disposition of his case would be based on his testimony. (Writ Hear-
ing-7) She acknowledged the common practice that testimony would be
rewarded. (Writ Hearing-8).
Livermore’s attorney, too, testified that, while he did not remember
the specific language used, he could not imagine permitting Livermore to
testify without such an understanding. (Writ Hearing-23,24,28) Subse-
quently, the trial prosecutor advised Livermore’s prosecutor of his testi-
mony. (Writ Hearing-27)
In this case, Medina was expressly told that if he did not co-operate
he would be charged federally. His attorney conveyed to him the usual
practice that testimony is rewarded. To argue that he stood not to profit
flies in the face of the record. Likewise, Livermore only testified because
he expected to gain. His attorney, while not remembering the exact
words, acknowledged the expectation. Yet the jury never heard about any
of these arrangements.
V. Conclusion
8
The trial court rejected Reyna’s writ application because the prose-
cutor denied offering these witnesses deals. The evidence makes clear,
though, that each testified as a result of offered leniency. Reyna thus ob-
jects to the trial court’s findings of fact and conclusions of law.
Prayer
Wherefore, premises considered, Applicant prays that this Court
will grant his writ and remand the case for a new trial.
Respectfully submitted,
/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorney for Applicant
9
Certificate of Service
A copy of these Objections has been mailed to the Appellate Sec-
tion, Dallas County District Attorney’s Office, 133 N. Riverfront Blvd.,
LB-19, Dallas, Texas, 75207 on ____________
SEPTEMBER 10 2015.
/s/ Bruce Anton
BRUCE ANTON
10