Abel Acosta, Clerk 

Court of Criminal Appeals 

Post Office Box 12308 

Austin, Texas 78711-2308 

Dear Mr. Acosta: 

March 2, 2015 

Re: Writ No. WR-71,478-02 

Enclosed for filing is Relator's Second Motion for 

a Writ of Mandamus. 

Thank you for presenting this to the Court. 

Yours Sincerely, 

Livingston, Texas 77351 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

cc: Jana Duty, District Attorn~y 

Williamson County Courthouse 

Post Office Box 24 

Georgetown, Texas 78627 

MAR 06 2015 
IN THE COURT OF CRP1INAL APPEALS 

OF TEXAS 

JOHNNY ANTHONY MORENO, § 

§ 

§ 

§ 

§ 

§ 

§ 

WRIT NO. WR-71,478-02 

RELATOR 

RELATOR MORENO'S SECOND PETITION FOR WRIT OF MANDAMUS 

On February 4, ~015, this Court denied Relabbr's Original 

Application for Writ of Mandamus. Accordingly, this second application is presented on an "EMERGENCY BASIS" because: 

I 

The Williamson County, Texas, District Attorneyj Jana Duty, 

is purposefully denying Relator, Johnny A~thony Moreno, meaningful 

access to court on a gen0ine issue of material fact affecting his 

confinement in which he can prevail by refusing to forward his 

September 18, 2014, State Habeas Corpus Application (EXHIBIT A), 

to the Texas Court of Criminal Appeals, or in the alternative, 

comply with the provision ~f Article 11.07, §§ 3(a), 3(b), and 

3(c), of the Texas Coqe of Criminal Procedure, which provides: 

3(b) The State shall answer within 15 days. 

3 (c) 20 days for theL-tr.,tial court to determine , 

whether there are any controverted issues 

regarding the legality.;of Applicant's 

confinement. If there are no issues the 

convicting court must immediately forward 

the application to the Court of Criminal 

appeals. 

-1-
3(d) If the convicting court finds th9t there 

are controverted unresolved facts, the 

trial court shall designate the J.ssues 

to be resolved. 

But in Relator's State habeas corpus application neither 

the District Attorney nor. the trial court' took the initiative to 

comply with these provision.even though Relator timely and properly filed his application. 

Moreover, the very language of the habeas corpus statute, 

i.e., [shall] and ~rmust] clearly mandate that theses are ministerial durites as opposed to some elective discretionary function. And, in postconviction habeas corpus cases, it is well established that it is the Texas Court of Crim'inal Appeals, [not] the 

local District Attorney who is the ultimate fact finder. Ex Parte 

Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012). Accordingly, the 

district attorney cannot circumvent the power of the Texas Court 

of Criminal Appeals by withhoiding habeas corpus applications. 

II 

The issues raised in Relator's State habeas corpus application are also cognizable by Federal Habeas Corpus review following the United States Supreme Court's decision in Martinez v Ryan, 

u.s. I 132 s.ct. 1309, 162 L.Ed.2d 272 (2012), where the 

Court determined: 

"A criminal defendant has the Constitutional right to the 

effective assistance of counsel in a postconviction collateral proceeding." 

In Ex Parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App. 2011), 

-2-
this Court determined that once the trial court found reasonable 

grounds for QNA testing, ihe trial court was authori~ed to appoint counsel for the postconviction DNA testing. But it was in 

Martinez v Ryan, supra, that the Supreme Court decided a defendant 

is entitled to the effective assistance of ~ounsel in these collateral proceeding where this is the only opport~nity a defendant 

can raise his claim of innocence or in the alternative provide a 

"gateway" for further proceedings and relief. 

The changes in the law regarding counsel in. collateral postconviction case decided by the Un.ited States Supreme Court in 

Martinez v Ryan, supra,~apply directly to Re1~tor's case because 

his counsel at his DNA hearing was so grossly ineffective that 

Relator was virtually without counsel. Also, the Supreme Court in 

Trevino v Thaler, u.s. 133 s.ct. 1911, 185 L.Ed.2d 1044 

(2013), decided one year.after Martinez v Ryan, decided that the 

Court's ruling ip Martinez applies to Texas cases because it is 

highly unlikely that an inmate could raise a meaningful claim of 

ineffective assistance of counsel on direct appeal. Cf. Mata v 

State, 226 s.w.3d 425,430 (Tex.Crim.App. 200~), and Williams v 

State, 301 S.W.3d 675 (Tex.Crim.App. 2009). 

In Relator Moreno'~ case, he vigorously allege~ that onGe 

the trial court recognized that, that Mr. Moreno showed entitlement to DNA testing, his appointed counsel undermined every Single 

legitimate issue that would have entitled him to DNA testing. And 

the iecord supports this claim. 

PRAYER FOR RELIEF 

-i-
Now, for all the reasons stated herein, Re1~tor now prays 

that the Honorable Court of Criminal Appeals will [ORDER] the 

Williamson County District Attorney,-Jana Duty, to come into full 

compliance with provisions of Article 11.07, §§ 3(b)~3(c) and 3(d), 

or in _the alternative pro@ptly forward Rel~tor's habeas corpus 

application to the Court of Criminal_ Appeals without delay. 

Respectfully Submitted 

Livingston, Texas 77351 

Executed: March _d__, 2015. 

-4-
CERTIFICATE OF SERVICE 

Service has been accomplished by forwardin~ a true and 

correct copy of MOVANT MORENO'S SECOND PETITION FOR WRIT OF 

MANDAMUS, postage prepaid, via United States Postal Service on 

this d/lt/of · /t!MeJ_ 

I 

, 2015, to: 

Jana Duty, District Attorney 

Williamson County Courthouse 

Post Office Box 24 

Georgetown, Texas 78627 

-5-
-. 

Case No. 01- 1J~[{;g£; (The Clerk of the convicting court will fill this line in.). 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

APPLICATION FORA WRIT OF HABEAS CORPUS 

SEEKING RELIEF FROM FINAL FELON\' CONVICTION 

UNDER CODE OF CRIMIN'AL PROCEDURE, ARTICLE 11.07 

NAME: Johrwy Moreno 

September 19, 1965 ~ 

DATE OF BIRTH: --~-----~,.....,..,,..-----...,;.;....,....,...------

PLACE OF CONFINEMENT: Pclunsky Unit.- TDCJ-CID 

TDCJ-CIDNUMBER: 14853;35 .. Sli> NUMBER: 9~~.:....3~0~6~4~2 7J...-----

(1) This application concerns (check all that apply): 

lXI a conviction 

~ a sentence 

0 time credit 

X DNA 

0 

0 

0 

parole 

mandatory supervision 

out,.of-tiriie ~ppeal or petition for 

discreqonaty· tevie:w· 

DEFENDANT'S 

EXHIBIT 

"A" 

(2) What distr:ict court entered. the judgment ofthe, conviction you want relieffrom? 

(Include tbe court number and county.) 

368th Judicial District Court - Williams~n County, Texas 

(3) What was tbe.case number in tbe.trialcoun? 

----------------------------------0-7-=-7-1-2=K36B----=------------------------------------'-----· ------------------------------------------------

(4) Wbatwas the name ofthe (fia.Iifudge~ 

Burt Carnes 

Effective~ January l, 2014 .): SEP 1 C 201~ 

District Clerk ~ 

' 

W~ . amson co., TX. 

Rev. 01114/14 
THE STATE OF TEXAS VS. JOHNNY 

MORENO 

NO. 07-712-K368B 

§ IN THE 

§ 368TH JUDICIAL DISTRICT 

§ COURTOF 

§ WILLIAMSON COUNTY, TEXAS 

§ 

WAIVER OF SERVICE 

NOW COMES JANA DUTY, District Attorney of Williamson County, Texas, and hereby 

acknowledges that she has on the I 8th day of September, 2014, received from the District Clerk's Office a 

copy of the Application for Writ of Habeas Corpus filed on September I 8, 2014, in the above entitled and 

numbered cause and she hereby waives delivery to her of said Application by certified mail. 

BY: 

, District Attorney 

ounty, Texas 

LISA DAVID, District Clerk 

Williamson County, Texas 

i 

i ' 

...... ~.t~MZUN~•-"t,.~..-rs·"•r.~.,.,~l: 

DEFENDANT 'S ~· 

EXHIBIT 

".B II 

,{!~FILED~· at~o'clock · 

SEP 1 9 2014 

/ . . . . . _ Dlatrlct 

~~ Clerk, Wllllams~n ~ 

{jl ku-&~ t(w f l'ecvdJ to(P-rt/f1