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WR-82,629-01

TR. CT. NO. W10-00678-P (A)

EX PARTE § IN THE TEXAS

§

§ 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 relief 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 otherwise were associates of Reyna who implicated him in the shooting.

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

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 9/10/2015 ABEL ACOSTA, CLERK 
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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 
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case, Giglio filed a motion for new trial based on newly discovered evidence 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 attorney told the key witness that he would not be prosecuted if he cooperated 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 judgment 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 interest 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 Bagley, defense counsel requested in discovery motions that the prosecutors 

disclose any inducements made to any witnesses. Id. at 669-70. The prosecution 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-
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tion of the defendant in the case. Id. at 671. The Supreme Court remanded the case to the Court of Appeals to consider whether the testimony 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 testify 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 agreement 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 
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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 sheltered 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). Livermore’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) Additionally, he was facing sentencing in federal court on charges for possession of methamphetamine and possession of firearms. (RR3.103). Though 

his cases were reset during the pendency of Reyna’s trial, he denied receiving any offer for assistance with his cases. (RR3.106, 118). Following 
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Reyna’s trial, however, the pending State charges have never been resolved, 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. According to his videotaped statement, made the day of his arrest (Exhibit G), 

Medina was immediately concerned about the charges against him. Although 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 serving 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 offered leniency in exchange for his testimony

In recommending that Reyna’s application for a writ of habeas corpus 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.
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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 address each and every claim raised.

In fact, all three witnesses had pending charges, and all three witnesses’ 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. Further, while the Court found that Medina and Cardenas would have testified 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 sentencing 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 
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were passed several times expressly so that he could testify. (Writ Hearing-7) Even though a specific bargain was not made, she understood that 

the disposition of his case would be based on his testimony. (Writ Hearing-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) Subsequently, the trial prosecutor advised Livermore’s prosecutor of his testimony. (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
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The trial court rejected Reyna’s writ application because the prosecutor denied offering these witnesses deals. The evidence makes clear, 

though, that each testified as a result of offered leniency. Reyna thus objects 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
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Certificate of Service

A copy of these Objections has been mailed to the Appellate Section, Dallas County District Attorney’s Office, 133 N. Riverfront Blvd., 

LB-19, Dallas, Texas, 75207 on ____________ 2015.

/s/ Bruce Anton

BRUCE ANTON

 SEPTEMBER 10