Petition for Writ of Certiorari — Noah Espada, Petitioner v. Texas

No. - - - --

--

INTHE

SUPREME COURT OF THE UNITED STATES

NOAH ESPADA - PETITIONER

vs.

STATE OF TEXAS - RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THEFOURTHCOURTOFAPPEALS

FOR SAN ANTONIO, TEXAS

PETITION FOR WRIT OF CERTIORARI

Michael C. Gross,

Counsel of Record

1524 North Alamo Street

San Antonio, Texas 782 15

(210) 354-1919

(210) 354-1920 Fax

QUESTION PRESENTED

Whether a Brady violation, that results in the reversal of a death sentence

because of perjury stemming from the Brady violation, implicates the Double

Jeopardy Clause and prevents the State from again seeking death?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

OPINIONS BELOW ................................................ I

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....... 2

STATEMENT OF THE CASE ........................................ 2

REASONS FOR GRANTING THE PETITION .......................... 21

THE FOURTH COURT OF APPEALS HAS DECIDED

AN Ilv1PORTANT QUESTION OF FEDERAL LAW

THAT SHOULD BE SETTLED BY THIS COURT.

A Brady violation, that results in the reversal of a death

sentence because of perjury stemming from the Brady

violation, does not implicate the Double Jeopardy

Clause and does not prevent the State from again

seeking death ........................................... 21

CONCLUSION ...... _............................................ 25

INDEX TO APPENDICES

APPENDIX A

Opinion by Fourth Court of Appeals, San Antonio, Texas

APPENDIX B

Order of 379th Judicial District Court, Bexar County, Texas

APPENDIX C

Denial of motion for rehearing by Fourth Court of Appeals

APPENDIX D

Refusal of petition for discretionary review

TABLE OF AUTHORITIES CITED

CASES

PAGENUMBER

Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ............ . ...... 21, 22, 24, 25

Commonwealth v. Martorano, 741 A.2d 1221

(Pa. 1999) ............................ .. .................... 23

Commonwealth v. Simons, 522 A.2d 537

(Pa. 1987) .................................................. 23

Commonwealth v. Smith, 615 A.2d 321

(Pa. 1992) ................. . .............................. 23, 24

Espada v. State, No. AP-75,219 (Tex. Crim. App., November 5, 2008),

cert. denied, 557 U.S. 906, 129 S.Ct. 2790, 174 L.Ed.2d 294 (2009) ..... 2

Ex parte Espada, 565 S.W.3d 326

(Tex. App. - San Antonio 2018, pet. ref d) ........ . ... . .......... 1, 22

Ex parte Espada, No. \VR-78,108-01 , 2015 Tex. Crim. App. Unpub.

LEXIS 463 (Tex. Crim. App., July 1, 2015) ....... . ... . .......... 3, 21

Oregon v. Kennedy, 456 U.S. 667,

102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) .......... . . .. . ........ ..... 23

STATUTES AND RULES

28 U.S.C. § 1257(a) ............ . .. .. ............... . ... .. ...... . .. . . 1

U.S. Const. Amend. V .. . .. .. . . . . . .. .. . ........ . ...... . .. . .. 2, 22, 24, 25

INTHE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

The Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The opinion ofthe highest state court to review the merits appears at Appendix

A to the petition and is reported at Ex parte Espada, 565 S.W.3d 326 (Tex. App. San Antonio 2018, pet. ref d). The order of the District Court of Bexar County,

Texas, 379th Judicial District appears at Appendix B to the petition and is

unpublished.

JURISDICTION

The date on which the highest state court decided this case was July 18, 2018.

A copy of that decision appears at Appendix A. A timely motion for rehearing was

thereafter denied on November 1, 2018, and a copy of the order denying rehearing

appears at Appendix C. A timely petition for discretionary review (PDR) was

thereafter refused on February 6, 2019, and a copy of the denial of the PDR appears

at Appendix D. The jurisdiction of this court is invoked pursuant to 28 U.S.C. §

1257(a).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United States provides, "No

person shall be held to answer for a capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time ofWar or public danger;

nor shall any person be subject for the same offence to be twice put in jeopardy oflife

or limb; nor shall be compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just compensation."

STATEMENT OF THE CASE

The Petitioner was charged with capital murder, convicted by a jury, and

sentenced to death on August 17, 2005. (T - I 0, 54-55). 1 The Court of Criminal

Appeals affirmed the judgment in an unpublished opinion. Espada v. State, No. AP75 ,219 (Tex. Crim. App., November 5, 2008), cert. denied, 557 U.S. 906, 129 S.Ct.

2790, 174 L.Ed.2d 294 (2009). A post-conviction writ ofhabeas corpus was filed, and

the Court of Criminal Appeals in an unpublished opinion granted relief, in part,

because of perjury by a state punishment witness, and remanded this cause for a new

1The clerk's record will be referred to as "T and page number."

The court reporter's

record of trial and sentencing will be referred to as "Rand volume and page number." The court

reporter's record of the hearing on the writ will be referred to as "Rand WHC volume and page

number."

2

punishment hearing. ExparteEspada, No. WR-78,1O8-O1 (Tex. Crim. App., July 1,

2015). Prior to this new punishment hearing, the Petitioner filed a pretrial writ of

habeas corpus seeking relief from double jeopardy and, after a hearing, the trial judge

denied relief on July 28, 2017. (T- 95-120; R- WHC v.1 - 1).

At this pretrial writ hearing, the Petitioner offered into evidence the following:

( 1) trial testimony of Christopher Nieto; (2) trial testimony of Dr. Richard Coons; (3)

'

closing argument by the prosecutor at punishment in the first trial; ( 4) testimony by

the prosecutor at the 11.071 habeas hearing; (5) findings of fact and conclusions of

law by the state habeas judge on the 11.071 writ; and (6) the Court of Criminal

Appeals opinion granting relief, in part, 0:1. the 11.071 writ. (R - WHC v.1 - 4-5).

There as no objection by the State and the exhibits were admitted into evidence. Id.

at 6. The following are taken from these exhibits.

Defense Exhibit 1 from the pretrial writ hearing shows that the first witness for

the prosecution at the sentencing phase of the first trial was Christopher Nieto. (RWHC v.2 - DE 1) Nieto's testimony was, in part, as follows:

Q. Chris, could you introduce yourself to the jury, please?

A. Hi. I'm Christopher Nieto.

Q. How are you employed now, sir?

A. I'm an electrician journeyman at Southwest Electric.

3

Q. How were you employed back in April of2004?

A. I was a Bexar County sheriff's officer, sir.

Q. What were your duties as a Bexar County sheriff's

officer?'

A. I was working second shift on unit BC. It was five days

a week that I worked there.

Q. Obviously the jury is not going to understand that

because I don't even understand it. Can you tell us exactly

what it is you were doing back in April of 2004?

A. I was to watch over inmates throughout the day from

two o'clock in the afternoon to 11 o'clock at night. Make

sure all security issues were taken care of. Make sure there

was no contraband brought into the facility, and basically,

just take care of any needs that they needed there.

Q. So basically -- and I don't mean to -- I don't mean this

any other way than to tell the jury, you were a jail guard?

A. Yes.

Q. And you worked for the Bexar County Sheriffs Office?

A. Yes.

Q. How long did you -A. Two years.

Q. And you no longer work there?

A. No, sir.

4

Q. Can you tell us the circumstance -A. I had lent my vehicle out to my brother-in-law a couple

of days before. He was doing some bad things he wasn't

supposed to be doing. He brought my vehicle back and he

left a joint in there. I went to work. They had a random

search of vehicles. My vehicle came up dirty. After that,

they called me out. I had to take a urine test and I had to

take a polygraph test. Everything came back negative. The

fact of the matter was that they found half a joint in there.

And after that, I resigned.

Q. Chris, during the time that you worked over at the jail

for the two years, did they give you random urinalysis tests

during that whole time?

A. Yes, sir.

Q. Did you ever fail one?

A.No.

Q. And they found half a marijuana joint in your car and

that was left there by your brother-in-law?

A. And an affidavit was signed on that.

Q. And so other than doing anything disciplinary or

anything like that, you left your job?

A. Right.

Q. And now you are studying to be an electrician?

A. Right.

Q. Now, Chris, tell us exactly where you worked in April

of 2004. Where in the jail?

5

A. Unit BC, which is a lockdown unit for- administrative

segregation unit.

Q. Tell the jury what a lockdown unit means?

A. It's basically where they hold all the gang members,

high-profile cases and stuff like that that they hold in those

units. They're locked down 23 hours a day and they come

out for one hour a day.

Q. Chrils, during your employment over there, did you have

an opportunity to meet an inmate by the name of Noah

Espada?

A. Yes, sir.

***

Q. Chris, I want to talk to you specifically about a couple

of disciplinary reports on inmate Noah Espada.

A. All right.

Q. First, I want to draw your attention to something that

happened on April 27th. Would it assist you to have a copy

of your reports?

A.No.

Q. On April the 27th, was inmate Noah Espada written up

for anything?

A. Yes, sir. He was written up for contraband.

Q. And describe -- do you do, from time to time, a search

of inmates' cells?

A. Yes, sir. Every day we're there we have to do cell

inspections. And the time we do them is when they come

6

out on their hour. They exit, we enter their cell, and make

sure everything is up-to-date as far as keeping their bunks

made, keeping any contraband out, not having any extra

pills or trays, or anything that might affect the sanitary part

ofthejob.

Q. When you go in there, do you search the cell?

A. Yes, sir.

Q. Now on April 27th of 2004, did you search inmate

Espada's cell?

A. Yes, sir.

Q. When inmate Espada -- at that time, was there

somebody in the cell with him?

A. Yes, sir.

Q. Do you remember what -A. Apolinar Soto.

Q. Tell us what happened when you inspected the cell on

the 27th of April of2004?

A. Okay. Basically we went in. I went in and did a cell

inspection. At that time I found -- I raised his bunk. At

that time we found an orange pill, peach-colored pill,

which was a Xanax, which was not prescribed to him,

which was fished to him by another inmate. We found that

outby calling medical station. Medical station confirmed

that he was not under any kind of medication at the time.

And when I asked whose it was, his response was, you

found it in my bunk, dumb ass, so I guess it's fucking

7

mine. And at that time, you know, I wrote up the report as

what it was and returned it into the sergeant's office.

***

Q. So basically what happens is, you found the contraband

in inmate Espada' s cell, he claimed ownership for it?

A. Right.

Q. And you wrote up the report?

A. Yes:, sir.

Q. And that was on April the 27th of2004?

A. 2004.

Q. For having non-prescription Xanax in his cell?

A. Yes, sir.

Q. Now I want to talk to you a little bit, Chris, about the

next day, which would be April the 28th.

A. Okay.

Q. Did you do another cell inspection on that day?

A. Yes, sir.

Q. And tell us what happened then, Chris?

A. At that time I found another pill in the same spot

wrapped in a piece of toilet paper, you know. I didn't even

-- I basically asked, whose it was. His celly looked at me

like, whose was it before. And after that I wrote up the

report and turned it in the same manner that I did before.

8

Q. After you found the Xanax on the 27th, how long was

inmate Espada out of his cell between the 27th and the

28th?

A. Had to be a 24-hour period.

Q. And did he leave his cell during that time?

A.No.

Q. So somehow another Xanax pill found its way--

A. Other inmates come out on their hour, and other inmates

go and congregate around cells and throw things under the

cell doors. And that's how they get passed around.

Q. So is inmate Espada then, on the 28th, written up for

having contraband, a Xanax pill again?

A. Yes, sir.

Q. Now Chris, I want to talk to you about something else

that happened on April the 28th of 04.

A. Okay.

Q. You described earlier that inmates in this unit are

allowed out a certain period during the day. Is that correct?

A. Yes, sir.

Q. And I think you've indicated to the jury that in every

24-hour period they are allowed to exit their cell for one

hour to do the things that they have to do?

A. Yes, sir.

Q. Do they go out alone, Chris?

9

A. No. They come out as -- the most they' ll be able to

come out is in groups of four.

Q. Is that for security purposes?

A. Yes, sir.

Q. And on the 28th of April, were you -- did you view

inmate Espada exit his cell during that time when he was

supposed to come out?

A. Yes, sir.

Q. And do you remember if other inmates exited their cells,

three others at that time?

A. I remember one specific inmate, Boyce Ahmed.

Q. Is that his first or last name?

A. First.

Q. And last name?

A.Ahm.ed.

Q. Another inmate?

A. Yes, sir.

Q. And where was his cell in relation to inmate Espada's

cell?

A. Boyce Ahmed was in 21 or 22.

Q. And what about Espada?

A. Espada was in cell 23.

10

Q. So they were in close -A. Yes, sir.

Q. -- proximity? Now tell the jury what it is you saw when

you saw inmate Espada and inmate Boyce exit their cells?

A. Okay. When Espada exited his cell, instead of going

directly to his left, which would be the way to go down the

stairs to get down to the unit -- to get down to where the

TV and everything is at, he immediately turned to his right

and basically attacked Boyce Ahmed with a closed fist;

started throwing punches at his upper body and torso. The

way I wrote the report was he was the aggressor, basically.

He came out throwing punches and basically Boyce Ahmed

-- basically had self-defense. He had to protect himself. At

that time I hit the SERT button, which is Special

Emergency Response Team, comes up to separate the fight.

At that time I told Boyce Ahmed to lay down, and Espada

to lay down. Espada would not lay down. I had to

basically intervene and put Noah Espada on the ground and

hold him there until the SERT team got there. Meantime,

Boyce Ahmed did stay laying on the ground.

Q. And did you write a report reflecting that inmate Espada

had attacked another inmate?

A. Yes, sir.

Q. And that report was turned over to other authorities and

there was an eventual disciplinary hearing held?

A. Yes, sir.

Q. Now it was clear to you when you saw this that inmate

Espada was the aggressor?

A. Yes, sir.

11

Q. Let me ask you this. Explain to the jury about the

intercom system there at the jail.

A. There's an intercom system that basically helps the

inmates whenever they need something; basically, they

need assistance with somebody trying to commit suicide,

or they need Tylenol, or someone is having a seizure. Any

kind of assistance they need, they hit the intercom and

they're able to call down to the corporal's office. And

we're able to listen to what they need. I do not recall the

specific date, but one day Apolinar Soto called down to the

intercom-Q. Let me interrupt for you a second. The day we're

talking about where the intercom was used by Soto, who is

inmate Espada's cellmate?

A. Yes, sir.

Q. Was that before this altercation?

A. It was before.

Q. And am I correct in assuming that when a guy is in his

cell, or two guys are in the cell, they can press a button in

their cell and speak to you or a corporal about something

that they might need?

A. Yes, sir.

Q. And sometime before the altercation that you saw, did

inmate Soto, who was Espada' s cellmate, press the

intercom and indicate to you that he needed something?

A. Yes, sir.

Q. And what was that?

12

A. He basically needed Tylenol. He said he had a

headache. He needed some Tylenol. And we forgot to tum

off the intercom button. Tylenol was given to him. And

throughout the day -- not throughout the day -- a few

minutes throughout (sic) that, we heard them conversating.

And throughout the conversation, we did here Noah

Espada say when he left one of the apartments, whose ever

apartment it was, that he heard a lady gasping for air as he

walked out of the building.

Q. Did it appear to you that inmate Espada was bragging to

inmate Soto?

***

Q. (By Mr. O'Connell) Did it appear to you that he was

bragging about one of the -- the killing of one of his

victims?

A. Yes, sir.

Q. And that was because you had left the intercom on after

Soto called asking for Tylenol?

A. Yes, sir.

Q. Had you had enough interaction with Espada at that

time to recognize his voice?

A. Yes, sir. I worked in that unit five days a week.

Q. Was it clear to you that inmate Espada was speaking

about leaving a victim gasping for air and not inmate Soto?

A. Right. He was talking about a victim.

Q. And it was Espada?

13

A. Yes, sir.

Q. And he was speaking to inmate Soto?

A. Yes, sir.

MR. O'CONNELL: Pass the witness.

***

THE COURT: Can you all step out in the hallway for a

minute, please?

(Jury not Present)

VOIR DIRE EXAMINATION OF THE WITNESS

QUESTIONS BY :MR... SCOTT:

Q. Sir, my name is Jeff Scott. We've never met before. Is

that conect?

A. Yes.

Q. Were you investigated -- before you resigned from the

Sheriffs Department, were you ever investigated or

interviewed by the FBI?

A. No, sir. I was investigated and it was all dropped. I

have a packet at home which came in -- I don't recall when

it came in, but I believe it had already been thrown out.

(R- v.38 - 87-94).

Defense Exhibit 2 from the pretrial writ hearing shows that the prosecution

called Dr. Coons to testify at the sentencing phase of the trial regarding the future

14

dangerousness of Noah. (R - WHC v.2 - DE 2). The following occurred during his

testimony:

Then, for the hypothetical, please, Doctor, while this

person is in the custody of the authorities in the Bexar

County Detention Center, he attacks another inmate with

his fists. Assume for the hypothetical that a guard at the

detention center actually hears what the guard terms as this

inmate bragging about the death of one of his victims by

saying he left her gasping for breath.

Assume that there is some kind of physical

altercation while this person is in custody with a jail guard.

Then assume that contraband such as, drugs, Xanax, a key

ring fashioned into possibly a weapon, a newspaper rolled

up fashioned into possibly a weapon, are found in his cell

while he is in the custody of the authorities.

***

Q. (By Mr. O'Connell) Excuse me, Doctor. I'll withdraw

the last question. The question I want to ask you, given the

hypothetical that I just explained to you, take all those facts

as fact, the things that I just described to you. Do you have

an opinion in my hypothetical about whether that

hypothetical person would be a future danger?

***

A. I do. Are you including only the hypothetical or the

other things that I reviewed?

Q. Everything that you've reviewed, including the

hypothetical.

A. Yes, I do.

15

Q. And could you please relate that to the jury?

A. I believe there is a probability that that person would

commit criminal acts ofviolence in the future which would

constitute a continuing threat to society.

Q. Doctor, tell us how you came to that conclusion.

A. Well, looking at the -- what I described earlier as my

scheme of looking at things, at the issue of future

dangerousness. Understanding that the best predictor of

the future is the past. If you look at the history of violence

of this individual, there's threats, and there's a - a well, I'll get to the instant offense in a minute.

There's fighting in the jail with another inmate. And

it's a bad sign that someone would be violent during -awaiting trial for capital murder knowing there's an issue

of future dangerousness in the offing. Having what would

be considered ... contraband . ..

(R-v.35 - 143-145).

Defense Exhibit 3 from the pretrial habeas hearing shows that the prosecution

focused in closing argument on this evidence of fighting and possession of drugs in

the jail as follows:

Let's talk about the facts as applied to the

punishment part of this case. Okay? Officer Chris - Chris

came in. And at first -- he told you, look, this guy had be

been in jail less than 40 days when he attacked another

inmate. Okay?

Now if you want to take about future danger, the

probability that are somebody will commit another criminal

16

act of violence that will constitute a continuing threat to

society, let -- let me ask you just a hypothetical here. What

if he was caught when he left Sandra's apartment? What

if some friend of Sandra's was coming over, they saw the

guy leaving and caught him. Well then they would have

asked -- that would have been a capital -- would he be a

future danger? Well you know what? He answered that

had already. He killed Luke two nights later.

So now he's killed two people and he's in jail for it.

He knows he's in jail for it. He knows he's facing the

death penalty. He knows he's got to keep his nose clean.

And 40 days after he's in jail, he .attacks another inmate.

Now, I don't really care if they send him 30 days

without privileges, or disciplinary action, or anything else.

The fact of the matter is, the evidence, the facts in this case,

is that that guard saw him attack another inmate. They

walked out of their cells and he went at him with fists.

That, ladies and gentlemen, is an act of violence. He's

already answered your questioned beyond a reasonable

doubt; not only by what he did to Luke and Sandra, but

what he's done when he's been locked up.

Think about what else he' s done when he's been

locked up. Okay? You know, there's this haze of drugs and

Ecstasy. I remember one witness saying something about

Ecstasy specifically. And that witness was Sarah, the

girlfriend. And do you know what she said? If you

remember back that far? She was asked, did you guys take

Ecstasy? Yeah, we took it on a few occasions. How did it

make him feel? Happy. It made him feel happy. And they

talked through the night when they took Ecstasy. Didn't

make him kill. It made him happy. That's what her

testimqny is. That's the facts, ladies and gentlemen.

Okay?

17

Think about this: He was found with drugs in his cell

40 days or 30 days after he was incarcerated. Well don't

you think that somebody that because of drugs, killed two

people, would never touch them again as long as they -they lived? He's smuggling them into his cell on

consecutive days. And then he's telling the guards, well if

it's in my bunk, I guess it's mine, dumb ass. That's what

he's about.

You don't see the real Noah Espada. They see it

over at the jail. You don't see it here in this courtroom.

Luke and Sandra saw it. And in order to make your

decision, to make a just decision, you have to see it when

you're back in that room. You have to see what this guy is

really all about.

* **

And that first question is whether or not he will

commit criminal acts. He already has. He already has.

And when you decide that question, you're asked, well

how can we possibly answer this question when we know

he's killed two people; we know the manner in which he's

killed two people; we know he's gotten in fights at the jail;

we know he has weapons; he has drugs; he's disrespectful.

How could you possibly answer no, knowing where he's

going? You have to answer it yes ...

(R- WHC v.2 - DE 3).

Nieto testified at the 11.071 habeas hearing in this case. In overturning the

death sentence, the Texas Court of Criminal Appeals stated as follows:

At trial, to demonstrate that Petitioner would constitute a

future danger even in prison, the State presented the

testimony of several jail guards concerning Petitioner's

conduct. This included the testimony of Christopher Nieto,

a former deputy who stated that he had written three

disciplinary reports against Petitioner after finding Xanax

18

pills in Petitioner's bunk and after witnessing Petitioner

assault another detainee without provocation. Nieto also

testified that he overheard Petitioner bragging about the

offense of conviction to his cell mate.

The trial court conducted a live habeas hearing during

which Nieto, other guards, and detainees testified. At the

habeas hearing, it was established that Nieto testified

falsely at trial concerning his employment history with the

Bexar County Sheriffs Office. For example, · it was

revealed that less than a month before Nieto reported

Petitioner's disciplinary offenses, Nieto left his assigned

work area in order to confront and threaten Petitioner. This

improper conduct resulted in his suspension. When

questioned at the habeas hearing about the Order of

. Suspension describing this conduct, Nieto denied that he

had confronted Petitioner and stated that the officer who

reported the incident made it up because of a personal

grudge. He stated that the captain who handled the

suspension proceedings advised him not to challenge the

officer's report, even if it contained false allegations, and

just accept the suspension. Both the reporting officer and

the captain testified at the habeas hearing and contradicted

Nieto's account of the circumstances of his suspension.

Another guard who had worked with the reporting officer

and Nieto testified that he would believe the reporting

officer's account ofNieto's misconduct.

It was also revealed at the habeas hearing that Nieto was

under investigation for providing controlled substances to

detainees when he resigned from the Sheriffs Office. A

vehicle inspection conducted pursuant to this investigation

led to the discovery in Nieto' s car of a bag containing

marijuana, a bong, and plastic packaging consistent with

drug trafficking. Nieto resigned from the Sheriff's Office

rather than submit to a polygraph examination concerning

his explanation for the contraband found in his car. This

evidence refuted Nieto's trial testimony that he resigned

from the Sheriffs Office after a random vehicle inspection

19

uncovered "half a joint" that his brother-in-law had left in

his car, and that Nieto had passed a polygraph examination

confirming his explanation for the presence of the "half

joint" in his car.

In addition, a probation officer who had supervised Nieto

testified at the habeas hearing. Nieto's probation records

showed that in 2006, Nieto was charged with theft of

property valued between $1500 and $20,000. These

records included a dependency counselor's report, dating

from 2008, identifying the following traits: "cannabis

dependent, cocaine abuse, negative learned behaviors,

manipulativeness, denial of treatment needs,

underemployment, [and] lack of impulse control."

Concerning the theft offense, the habeas record indicates

that Nieto was initially placed on deferred adjudication,

was later adjudicated guilty and placed on probation, and

finally was sentenced to a term of imprisonment.

These and other revelations cast doubt upon the credibility

of Nieto's trial testimony concerning Petitioner. The

prosecutor testified that he would not have presented

Nieto' s testimony at trial if he had known about Nieto' s

dishonest and criminal conduct.

In addition, detainee testimony- including the testimony

of the detainee Petitioner reportedly assaulted controverted Nieto's trial testimony that Petitioner had

committed an unprovoked assault. The detainees'

testimony further undermined the credibility ofNieto' s trial

testimony concerning Petitioner's conduct while in jail.

Nieto testified at the habeas hearing that he did not

remember the detainees who testified or any of Petitioner's

disciplinary offenses, including the assault. When habeas

counsel asked Nieto why the detainees would make up

allegations against him, Nieto responded, "I mean, come

on, man, they're on the other side of the law."

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At trial, the State presented evidence of Petitioner's future

dangerousness from sources other than Nieto. This

evidence included additional disciplinary offenses. We

conclude, however, that Nieto' s reports and testimony were

not merely cumulative of other evidence because the State

expressly relied on the acts of misconduct reported by

Nieto during its examination of the future dangerousness

experts and again during closing argument. Further, during

the State's examination of guards and detainees and again

in closing argument, the State endorsed the honesty of the

guards (including Nieto) and characterized the detainees'

testimony as not credible.

Following the evidentiary hearing, the trial court found that

the State did not withhold exculpatory evidence or

lmowingly present false testimony, and that trial counsel

was not ineffective for failing to discover the information

concerning Nieto before trial. However, the trial court also

found that Nieto presented false testimony. The trial court

stated that this false testimony was "more likely than not

the tipping point" on the issue of future dangerousness.

The trial court concluded that Petitioner established by a

preponderance of the evidencethatNieto's false testimony

was material to the jury's finding of future dangerousness

and recommended granting a new punishment hearing.

Ex parte Espada, No. WR-78,108-01, 2015 Tex. Crim. App. Unpub. LEXIS 463

(Tex. Crim. App., July 1, 2015).

REASONS FOR GRANTING THE PETITION

The court of appeals has decided an important question of federal law that

should be settled by this Court. Prior to the first trial, the prosecution should have

known about the Brady evidence of Nieto' s above described employment problems

with the Bexar County Sheriff's office and investigation by the District Attorney's

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Office. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Additionally, the prosecution should have known about the Brady evidence of the

other inmates in the Petitioner's pod (whom the prosecution had bench warranted

back to county for the Petitioner's trial) knowing that Nieto set up the Petitioner for

the assault claim and planted drugs in the Petitioner's cell for the possession claim

made at trial.

In addressing this Brady issue, the court below held that, "Because the case

was completed to verdict, whether Christopher Nieto's personnel file constituted

Brady material, and whether the State was obligated to provide such material to

Espada's defense counsel, does not affect jeopardy in this case. Because the

information came to light after Espada' s conviction, the information never raised the

issue of a mistrial." Ex parte Espada, supra. The Petitioner requested that the court

below consider whether or not this Brady violation implicated the Fifth Amendment

Double Jeopardy Clause and thus prevented the State from again seeking death in this

case. The court below held that the Fifth Amendment Double Jeopardy Clause was

not implicated because the prosecutor did not goad a mistrial. Ex parte Espada,

supra. The specific question, however, was whether or not the severity of the Brady

violation in this case implicated the Fifth Amendment Double Jeopardy Clause.

The Pennsylvania Supreme Court has encountered severe Brady violations

which were held to implicate the Double Jeopardy Clause. "[P]rosecutorial

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misconduct during Petitioner's first trial was not only impermissible, but had

constitutional implications under the double jeopardy clause which prohibit retrial."

Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). The Smith court stated that

"previously, we have held that 'double jeopardy will attach only to those mistrials

which have been intentionally caused by prosecutorial misconduct.' Commonwealth

v. Simons, 522 A.2d 537,540 (Pa. 1987), adopting the federal constitutional standard

set forth in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416

(1982)." Id. The Smith court stated that "the double jeopardy clause of the

Pennsylvania Constitution prohibits retrial ofa defendant not only when prosecutorial

misconduct is intended to provoke the defendant into moving for a mistrial, but also

when the conduct of the prosecutor is intentionally undertaken to prejudice the

defendant to the point of the denial of a fair trial." Id.

Egregiousness on the part of the prosecution is not a requirement for the bar

against retrial. In Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the

Superior Court reversed convictions for first-degree murder due to "pervasive

prosecutorial misconduct, including blatantly disregarding the trial court's evidentiary

rulings, disparaging the integrity ofthe trial court in front of the jury, and repeatedly

alluding to evidence that the prosecutor knew did not exist." Id. at 1222. The

Martorano court stated that, "While [the prosecution's] misconduct does not involve

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concealment of evidence as in Smith, it nonetheless evinces the prosecutor's intent

to deprive Appellees of a fair trial; to ignore the bounds of legitimate advocacy; in

short, to win a conviction by any means necessary. This is precisely the kind of

prosecutorial overreaching to which double jeopardy protection applies." Id.

In the case at bar, there was a clear violation of Brady and its progeny. No

prosecutor would have believed Nieto' s testimony regarding his leaving the Bexar

County Sheriffs Office. It is clear that this case approaches, if not a concealment of

evidence level of action by a prosecutor, at least the ignoring of the bounds of

legitimate advocacy; in short, to win a death sentence by any means necessary. This

is precisely the kind ofprosecutorial overreaching to which Fifth Amendment double

jeopardy protection applies. The State should be precluded from again seeking a

death sentence in this case.

Based upon the Pennsylvania case law cited above, this Brady violation

implicated the Fifth Amendment Double Jeopardy Clause and thus prevents the State

from again seeking death in this case. The court below held that the Double Jeopardy

Clause was not implicated because the prosecutor did not goad a mistrial.

Pennsylvania, however, ·has recognized that neither goading a mistrial nor

egregiousness on the part of the prosecution is a requirement for the double jeopardy

bar against retrial. Given the reasoning in this case law, the question that logically

follows is does a Brady violation, that results in the reversal of a death sentence

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because ofperjury stemming from the Brady violation, implicate the Double Jeopardy

Clause and prevent the State from again seeking death? The reasoning of the

Pennsylvania cases clearly leads to the conclusion that the Brady violation in the case

at bar implicated the Double Jeopardy Clause. The contrary holding by the court

below that a Brady violation - that results in the reversal of a death sentence because

of perjury stemming from the Brady violation - does not implicate the Fifth

Amendment Double Jeopardy Clause and prevent the State from again seeking death

is an important question of federal law that should be settled by this Court.

CONCLUSION

The petition :for a writ of certiorari should be granted.

s

unsel of Record

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