Sunday, March 26, 2017


COURT OF CRIMINAL APPEALS UPHOLDS USE OF PETITION FOR WRIT OF MANDAMUS BY PROSECUTOR TO CHANGE JUDGE'S JURY CHARGE


"In an opinion dated January 16, 2013, the Court of Criminal Appeals conditionally granted mandamus relief and ordered us "to grant mandamus relief directing Judge Keeling to submit the § 7.02(a)(2) theory of party liability in the jury charge and to submit the § 7.02(b) theory without requiring the State to show that Falk should have anticipated the particular method by which the murder was carried out." In re State ex rel. Weeks, 391 S.W.3d 117, 125-26, (Tex.Crim.App.2013) (orig. proceeding)"

As the BV noted, DA Saenz needed to take an emergency mandamus once Judge Bañales ruled in favor of the spoliation instruction but before jury deliberations.  The above case from the Court of Criminal Appeals makes clear the BV was correct.  DA Saenz failed to protect the due process rights of the victim and he did it intentionally.

I will remind Saenz, during the Villalobos trial at the BV's prodding the Assistant US Attorney asked the then DA Appellate attorney why a mandamus was not sought to stop the release of Amit Livingston.  After the question and during a break the jury asked Judge Hanen to explain the mandamus issue.  It was the lock which insured Villalobos' conviction.  It's coming for you Luis.

When I posted the comment that Saenz needed to take an emergency mandamus on the spoliation instruction I got the same moronic comments from the trolls.  I was routinely called the mandamus king because I understand how they are done. Saenz can hire me for $5,000 as a contract paralegal and I will get him his mandamus issued.

Saenz cannot be trusted to do this.  We are already working on getting the Texas AG to take the case from Saenz so it is done right.

Double Jeopardy is always an issue.  But in this case because the wrongful conduct was by Ernesto Gamez for the defense and the judge, double jeopardy will not apply and the appellate court can rule a mistrial based on the bad spoliation instruction.

The double jeopardy provisions prohibit a retrial of a case after the defendant requests and is granted a mistrial only if the prosecution intentionally commits manifestly improper conduct with the intent to provoke that mistrial. See Oregon vKennedy456 U.S. 667, 672-73 (1982); Ex parte Lewis219 S.W.3d 335, 371 (Tex. Crim. App. 2007). 

All of the wrongdoing here was by the defense and the judge.

THE KEY

This is the type case which must be argued as having been corrupted by the defense by wrongfully asking the judge for a spoliation instruction to which the defense was not entitled.  It must be argued, and this is key, as fighting for a clear right of due process for the victim.

It is clear the defense was not entitled to a spoliation instruction.

THE COURT OF CRIMINAL APPEALS - THE HIGHEST COURT IN TEXAS FOR CRIMINAL CASES

SPOLIATION

"Any federal constitutional duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense. California v. Trombetta, 467 U.S. 479, 488 (1984). "To meet this standard of constitutional materiality, [citation omitted], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988)."

Given the fact it is a crime in Texas to leave the scene of an accident, was it apparent to Det. Clipper that the evidence was exculpatory when at most the evidence on the tape showed the Hernandez family came back after the accident to search for the dead skunk.  As a matter of law such as Judge De Coss found based on the sworn testimony of the son, Marisa Hernandez did not immediately stop and render aid.  This is an established fact independent of what was on the tape.

Second the son was allowed to testify as to what exactly the tape could have shown.  Given this established fact how could Judge Bañales have found the was no other reasonable means to obtain the same evidence?  The son testified they went and searched the area, which is what the tape would have shown.

THIS IS 100% WINNABLE, BUT SAENZ WILL NEVER DO HIS JOB

This case is far from over.  I do have a policy though, the Tipton family must be willing to lead the fight with their friends and family.  I will do the rest.  If they are on board, expect another on line petition which people have already agreed to do as a door to door demanding indictments of all of those involved in corruption of justice.

I hope to begin in a week or two with a big bang which the press cannot ignore.  It is going to take money.  I will not discuss the entire  strategy, but if things go as I expect, the first real evidence will become apparent within two weeks.

It would be best if Ralph Tipton could afford to buy a copy of the entire trial transcript, but I think we can do this on two witnesses, but maybe three.

More to come.

2 comments:

Joseph Fielding said...

Well written. Thanks and keep up the fight.

Anonymous said...

Yes! Keep up the fight!