Robert Villanueva 

vs. 

Michell Slaughter, 

Judge of Court 

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 

Respondent DEC.22 2015 

· 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. 

1.· 

Robert Villanueva, Pro Se 

McConnell Unit 

3001 s. Emily Dr. 

Beeville, Trexas 78102 
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 +h<tt he filed his motion foe foeensic DNA testing on the I~ i:b.. 

day of NoVf?~~ef", 2015. To this date, no .response has been eeceived 

fcom the tcial Coucts. The Cleek, the ticla Coucts has a ministerial duty 

to .respond to the .request foe judicial .review. Thecefoce, petitionee's 

.request that this Honorable Couct gcant his petition foe Wcit of Mandamus 

in this cause, and any othec .relief deemed by this Honorable Couct. 

Robect Villanueva, Petitionee 

CERTIFICATE OF SERVICE 

The undersigned heceby certifies that a tcue an ~occect copy of the 

foregoing was mailed, postage pcepaid, this the 17-:_ day of Dec.. , 2015. 

To the Couct of Cciminal Appeals, Austin, Texas . 

Pentionec 

2. 
I~ 

GALVESTON OFFICE 

600 59th St. Ste. 4001 

~ALVESTON, TX 7755+-2338 

JOHN D. KINARD 

DISTRICT CLERK 

GAL VES'IDN COUNTY, ·TEXAS 

In Re: i . 8 Robert V1llanueva - Cause No. 0 -CR-3051-83-l I 

In the 405th District Court, District Court of Galveston County, Texas. 

Dear Mr. Kinard; 

Enclosed is Applicant's motion for Appointment of Counsel, pursuant to 

Texas Code of Criminal Procedure, Article ·11.073(1) (d). Will you please notify 

me of the purposed docketting date using the self addressed stamped envelope 

enclosed? 

Thank you for your time and attention in this matter. 

08- CR -3051 

DCC ORR 

Correspondence 

1131266 

Signed this day of Nov 

J 

llllllllllll\lllllllllllllllllllllllllllSincerely, 

ROBERT VILLANUEVA 

1662449 

3001 S. EMILY DR~ 

BEEVILLE, TX 78102 

8~ 1 2015 

I 

.I 
Robert Villanueva 

vs. 

The State of Texas 

Cause No. 08-CR-3051 

§ 

§ 

§ 

§ 

§ 

APPLICANTiS REQUEST FOR COUNSEL FOR DNA TESTING 

Comes Now Robert Villanueva, in the above styled cause and motion to this 

Honorable Court to request counsel in the matter of untested material evidence, 

presented by the State during his September 2010 trial in the 405th District 

Court. Pursuant to Texas Code of Criminal Procedure, Article ll.073(l)(d). 

Applicant contends that duriog trial, prosecutor Bill Reed revealed to the 

trial court that evidence was missing. (Glass Crack Pipe) In addition, 

biological evidence (Hair) found in the victim's right hand, at the time of the 

alleged murder, was also not tested in accordance with accepted police and 

scientific procedures. 

STATEMENT OF FACTS 

On July 8, 2015 Applicant received newly discovered evidence from trial 

counsel's, co-counsel, attorney Holly Cooper-Roell, that Mr. Cochran confessed 

to her, ''the prosecutor did turn over more evidence in the middle of trial. He 

told me the month of your conviction that Mr. Reed had evidence secrected 

[by him]." Mrs. Roell's [by him], insinuates that this is Mr. Cochran's evidence, 

that was secreted. Mrs. Roell added, that she will cooperate with the sentencing 

court because "trust me, I have a whole lot more to say." (Exhibit #1) 

Brady v. Maryland, 373 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 

1 

08-CR-3051 

OCRFC 

Request For Counsel 

1131273 

Ill I 111111111111111111111111111111111111 
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 

KutzneEr v. State, 75 S.W. 3d 427 (T_ex., Cr. App. 2002)' did not decide that II 

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, 

4 

Robert Villanuera 

TDCJ#1662449 

3001 S. Emily Dr. 

Beeville, TX 78102 
THE STATE OF TEXAS 

VS.· 

, ROBERT VILLANUEVA 

Cause No. 08-CR-3051 

§ 

§ 

§ 

§ 

§ 

AFFIDAVIT OF INDIGENCY 

/:f.:; :; :·;~~::~ 

~{~ ti~J: 

IN THE DISTRICT COURT OF 

405TH JUDICIAL DISTRICT 

GALVESTON COUNTY, TEXAS 

I Robert Villanueva, do certify I am without means to pay these proceedings 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/ ~/I f:5 Robert Villanueva . TDCJ#1662449 

3001 S. Emily Dr. 

Beeville, TX 78102 

08-CR-3051 

DCAFFID 

Affidavit 

1131271 

llllllllllllllllllllllllllllllllllllllll 
~ . . ' . .:: )" 

· ~~zs::h'n n D. k~ ~a,d 

15\. s+f, c_+. C \ ~' k 

'Go..\ v~s+o (\ Co u 1\~-~ l -:-r""e. X a.~ 

_ .. GoJve'E;+of\ o+~·, c~ 

:._, \'L ib QQ ? '\ ~- ··~+, s+e. l.i 0 Q l 

<-- ~\ves~" \"X' '"11 5 ~- 1·- ~ 3:':. g .. · . .. I 

· ::t::.\~ +he. 14 o 5-th 1.:)~ s+r-1 c+· Co u.r-4-- o+ 6~ I v e :s+o f'\ Co u ~"+ 'j~ 

--re.)(o. s . 

l.... \) eo.. r- frrr-. \( ~ t\ ~ r d 

.·.···- Enc\osed \~ o. se:\~ Otdd\e:ss~d ;s+o.fV\ped 

_:-· et\ve\ ope J u.J ~ I\ ~ou p\ ea·s e. · u :s e +hQ+ e. f\ \J e l o pe ..\..a 

'J \\.o+\~-~ N')e 0~ ~e. Co~~~s oec\ss\Of\ Of\ ~pp\\CC\f\-\J.s 

'J,i mo-\-\ o h _+o' C\ V> p\ of\-~ N\ e..()~ o~ Cou 'l\ se.. \ 1 pur .5 V\ cu)+ 

\ · ~ Te ~ o. s c o c\ e. C {'; ff\; f\ C\ \ Pr-o ~ e. d u t' ~ . ~ '~ , \\ • o 1 3 ( I ) l d ) 

5o -:t-h Q.+ ~ .\-\ N\ e..\~ . ~pre oJ c Cl f\ be .c ~ \ e d u.J ·~~ 

· +"~· Coo.t~ o ~- o.. p·pe~ \ s , \ ~ J') es e. '5 s Ct '-~ • 

\' 

....,-"'~\"\ l< (l0 u.. ~or ~our +~ me. a. n d . cdte f\~ ~ on , 

.· S~C\Ce{"e.\~-> R~ \/t.U.o.M~ 

\lo~~4~'l 

3 o o I S j ~ m i '~ Pr- . 

B e.e·v·, \\ e..

1

&X. I 1l I o ~ 
HOLLY COOPER-ROELL 

TO: Mr. Robert Villanueva 

TDCJ# 1662449 

3001 S. Emily Dr. 

Beeville, Texas 78102 

ATTORNEY-AT-LAW 

HOLLYCOOPERROELL@YAHOO.COM 

July 8, 2015 

Hon. M. Slaughter 

405th Jud. District Court 

600 59th Street 

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