CLEMENTE (CLEM) SUAREZ


Victim of the Texas Injustice System


The following is a letter to Ms. L. Gonzalez of the TX Pen Pals Wanted Group.

CLEMENT (CLEM) SUAREZ #668763
Rt 1 Box 150 
Tenn. Colony, Texas 75884

TX Pen Pals Wanted

RE: Mr. Suarez's Story June 16, 2003
 
Dear Ms. Gonzalez:
 
I was born in Raymondville, Texas to law abiding parents with excellent morals, values and attributes. I graduated from Lyford High School just south of Raymondville, Texas in the summer of 1965. I was drafted by the U. S. Army but elected to join the U. S. Air Force. I spent four years in the Air Force and was discharged with an honorable discharge in October 1969. In November 1973, I joined the U. S. Navy with one goal in mind, to make it a career for twenty years for my retirement. In May 1990, I completed my twenty years and retired off the USS Barbour County LST-1185 while home ported at San Diego, California. For pay purposes I retired with twenty two honorable years of my life to our most wonderful Country.

During my Navy Career I became an alcoholic and through the years it got worst. But like any other alcoholic, we go into denial claiming we are just social drinkers. My mother knew I needed help and tried to convince me of the problem I had, but elected to continue the way I was, not realizing I was on a path of self destruction. Even though, I was experiencing constant alcohol blackouts.

On the night of my darkest day of my life, I had just come out of a blackout from a three day drunk. My wife and myself were both alcoholics, which was our soul recreation on a daily basis. Our marriage was on a downward swing and we were
always disagreeing on most anything. On this particular night we drank a case of beer between three of us and were well inebriated. I had just come out of a blackout and found myself arguing with her. I decided to walk away and let her and the cousin drive the rest of the way home on their own, since we were on a road trip. But she threaten me and I just lost it, put my hand in my over night bag and pulled a 38 gun for a scare tactic, not expecting for her to hit the gun with her left hand causing it to discharge. After throwing the weapon away I picked up my wife, put her in the front seat and drove to the hospital to save her life. I waited there at the hospital for about 15 minutes until the Police arrived and told them what had happened. After about 45 minutes was taken downtown and booked for a crime I was not guilty of ...murder, because it had been an accident.

Enclosed is the story of my trial and the injustice committed by the State of Texas. The Assistant Chief Medical Examiner Robert Bux from Bexar County Forensic Science Medical Center was in cahoots with the prosecutor and conspired a scenario that was fabricated and perjured and my trial records, autopsy report, and Shannon hospital in San Angelo, Texas will support my allegations of "Miscarriage of Justice".

Clem Suarez
Chief Petty Officer
United States Navy -Retired


"INJUSTICE IN TEXAS"
By: Clem Suarez


The following is a true story of a Texas Inmate innocent of the charged conviction of murder, when in reality, as well as, supported by the evidence in the trial records, is only quilty of "Reckless Display of a Firearm", resulting in a death, an accident. But in this instant case, the State closed their eyes to justice and invited "Miscarriage of Justice", to prevail, violating his Fifth (5th) and Fourteenth (14th) Amendment of the United States Constitution, which reads in part: "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

Texas Inmate Clemente Suarez, hired/paid Attorney Galen Moeller for a fair and impartial defense, which Mr. Suarez did not get. Furthermore, Mr. Moeller did not defend Mr. Suarez at trial as agreed by contract, but rather sent his assistant Mr. David Stuart, who was not a criminal lawyer and was very weak in his defense, as well as not investigating the case properly. The defense had nine months to prepare a just and fair defense, but did not live up to their expected "Professional Norms", as defined by the Attorney's Codes. An example or examples; The case was an accident, but the State indicted as murder, because no one disputed it or presented any contradicting evidence to show otherwise, as Mr. Moeller said he would. At the time of the Grand Jury Hearing, I was a patient at VA Hospital in Big Spring, Texas for Post-Traumatic Stress Disorder (PTSD) and Substance Abuse Treatment (SAT), while, I trusted Mr. Moeller to do the job, he had been paid and agreed to do by written contract, and which he failed to honor.

Mr. Moeller's firm did not do any kind of research during the nine months they had to prepare for trial. If they would have, they would have supported it with good accidental cases, as authority to establish the proper defense. If they would have, they would have uncovered the State and the Pathologist withheld the testing of the victims clothing, as well as the deletion of such results from the autopsy report, a required procedure. Furthermore, they would have known that, the victim had powder residue to the left hand's palm, to indicate that, the palm had been within the side of the weapon, as confirmed by Dr. Bux (Medical Examiner) in his testimony that, the residue numbers, she had were not the same as the powder numbers that come out the end of the barrel. This evidence confirms two important factors; Mr. Suarez's testimony as documented in the police report that night (and not after hearing Dr. Bux' s testimony at trial) and that, the victim had hit the weapon with the left hand causing the weapon to discharge. Also, the defense did not find out about the powder residue to the left palm of the victim's hand until the first day of the trial.

An investigation would have confirmed that, Dr. Bux had perjured and fabricated his autopsy report as well as his testimony, which the prosecutor knew to be perjured, and did nothing to correct it. The law reads; "Prosecutors are obligated by law to disclose any potentially exculpatory evidence to the defense ..." An example; Dr. Bux uses a distance of three to three and one half feet theory that, Mr. Suarez was from the victim at the time of the weapon's discharge. If the defense would have done a proper investigation, they would have known that, gunpowder travels 12" forward for tattooing and 18" forward for stippling, and at 24" one would not see absolutely no trace of gunpowder. Why did Dr. Bux and the prosecutor conspire to use the distance of 36" to 42"?  Because a victim 5' 3" can not reach and hit a weapon at this distance as documented in the police report, that night. Also, Dr. Bux and the prosecutor claim that, the victim was using the extended hand to shield the bullet, another erroneous scenario. Further investigation would have proven that, this scenario was without factual support, because the figures and distance do not compute. Factual evidence is that the palm, hand, or forearm did not have stippling or tattooing.
Note, if we take a 5' 3" person's reach into consideration, it would be approximately 24" without stretching out, just normal reach. Then, we add 12" to the 24", at the minimum the victim should have had tattooing along with residue, which the victim did not have. But only residue to the palm and noting else to the hand or the forearm. But the pathologist and the prosecutor had
to sell and convince the jury on a fabricated and perjured scenario, testimony, and autopsy report. .

The factual evidence lies in the fact, that the pathologist did not test the clothing to confirm or deny close range discharge of the weapon. If the pathologist had tested the clothing, he would have documented that findings in the autopsy report, which he failed to do, because it would defeat their scenario and theories and proven, that the weapon had discharged, as documented in the
police report, an accident. Let's suppose that, Dr. Bux did test the clothing as a required procedure and failed to document such findings or testify to such findings, then Dr. Bux is in violation of "Withholding Favorable Evidence for the Defense". Also, Mr. Tim Fallon, Director, Criminal Investigation Laboratory, Bexar County Forensic Science Center, 7337 Louis Pasteur, San Antonio, Texas 78229-4565, did not want to release or confirm, if the testing of the clothing had actually been performed as required by their procedures. Mr. Fallon claimed that, in order for release of the testing of the clothing, a Court Order had to be issue. It sounded like he was trying to hide something. Especially, when V.T.C.A., Government Code § 552.028 (b) states: Subsection (a) does not prohibit a government body from disclosing to an individual described by that subsection information held by the government body pertaining to that individual.  With this authority, I filed a Motion to Compel Bexar County Forensic Science Center to produce the testing of the clothing or admit they did not do a testing of the clothing, which they did and was documented in a Court Order signed by Tom Green County's Senior Judge Steib. This evidence opened the door to newly Discovered Evidence for a Subsequent Writ of Habeas Corpus in order to prove my innocence of the charge conviction of murder.
 
Another error that, occurred was that, the pathologist claims that, the victim had no absolutely no alcohol in the bloodstream, when in fact, we had been drinking from San Antonio to San Angelo, a drive of about four to five hours and a case of beer later. Dr. Bux claims that, he did a vitreous test to determine the alcohol percentage and concluded that, the victim had 0.10 percent alcohol behind the crystalline lens. If the defense would have done a proper investigation, they would have known that, alcohol does not evaporate or does the liver process what remains in the bloodstream, once it seizes to function. Also, what- ever percentage the vitreous test determines to be behind the crystalline lens will not differ from what's in the bloodstream, but by only plus or minus 0.01 percent alcohol. Furthermore, the liver can only process approximately one beer per hour, which means that, the last beer the victim had, should have been detected in the bloodstream. Dr. Bux throughout his testimony contradicts his testimony, this you will note once you read the Court Records of this case.
 
Dr. Bux also claimed to be an expert in identifying bullets, which indicates, that, he did not perform the autopsy, he claims to have authored, because whomever did the autopsy and the report, did not know that, Full Metal Jacketed Bullets had been delivered to Mr. Ronald Dobson, Firearm and Toolmark Expert for Bexar County Forensic Science Center in San Antonio, Texas. Whomever performed this autopsy, documented in the autopsy report that, they removed a Large Copper Jacketed Bullet from the deceased. When in reality, Full Metal Jacketed Bullets were presented at trial and as evidence. The defense should have hired their own pathologist and experts for a better defense to ensure that justice prevail.
 
The prosecutor never proved all the allegations of the indictment, but rather used a hearsay remark made by the State's Witness stating I said; "Look at me, so you can see who is going to kill you", an uncorroborated statement that, did not pass the two-man witness rule, which the prosecutor felt this to suffice to prove intent as allege in the indictment, which was far short of proving. A hearsay is not evidence. Furthermore, a man with intentions to commit a crime of murder does not waste his time in taking the victim to the hospital to try and save their life ...common sense tells it different.
 
Another big mistake that was admitted in violation of Mr. Suarez's Constitutional Rights; The State at the pretrial abandoned Count Two of the indictment, which became an acquitted count and could not be used to, or for any purpose whatsoever at the Guilt/Innocent Phase of the trial. The trial judge in the trial records admits that, Count Two was no longer part of the case, but abuses his discretion and the law in allowing Count Two into evidence, because he felt it was relevant to the case, but definitely not at the Guilt/Innocent Phase. A very damaging error that, requires that, Mr. Suarez be released from custody and acquitted, because of such Constitutional Violation was allowed to prevail. Furthermore, defense counsel objects to this extraneous offense before it came into evidence, but did not know why he was objecting other than it was an extraneous offense that, he felt he had to object to. If the defense would have been an experienced criminal lawyer or would have done a proper investigation and research, he would have known that, if was an acquitted count that, had been ruled on at the pretrial and abandoned from the case (an acquitted count two), and could not be used for any purpose whatsoever, but at the punishment phase to show character.

At the Guilt/Innocent deliberation, the jury sent the first note, which was correctly answered by the trial judge. But Note: during this time, the jury is a hung or split jury, is looking for help in answering a question of fact and their doubt by the wording of the second note. The following is a quoted note as presented to the judge from a confused jury by their reasonable doubt:

"Judge Sutton"

"If the entire jury agrees that the defendant is guilty, but some believe he is guilty of murder and some believe he is guilty of involuntary manslaughter and no one wishes to change their mind, are we required to deliver a verdict of involuntary manslaughter? Must we be unanimous?"

The answer to your first inquiry is No.

The answer to your second inquiry is Yes.

The trial judge did not answer a question of fact and law with a simple No, but rather confused the jury, misled the jury, and directed the verdict for the State. The correct answer should have been for the trial judge to refer the jury back to the jury charge or to redirect the jury to read paragraph five of the jury charge which read as follow: "If you should find from the evidence beyond a reasonable doubt that the defendant is guilty of an offense of murder, a first degree felony or involuntary manslaughter, a second degree felony, but you have a reasonable doubt as to which offense he is guilty, then you should resolve that doubt in the defendant's favor and find the defendant guilty of the lesser offense."  Again, the defense counsel did not have the faintest clue that, this was a question of fact and law that, required a precise and concrete answer, instead of the judge, directing the verdict as he did for the State. That is abuse of discretion and a violation of the Fourteenth Amendment, because the trial judge can only direct the verdict for the defendant and not for the State.
 
There's other grounds for relief that, were noted in the defendant's Writ of Habeas Corpus, but these noted are the more damaging and the ones to VACATE and REMAND this case for an ACQUITTAL. Also, note, the appellate counsel, Mr. Glenn Archer should have done a thorough investigation of the record, but also, failed to perform his paid duties, as required by the Sixth Amendment of the U. S. Constitution.
 
Judge Steib, Senior Judge at Tom Green County, Texas had identified and concurred with defendant that, the majority of the grounds for relief he raised in his Original Writ of Habeas Corpus were in need of a fair and impartial answer, which dealt with, and required an answer of question of fact and law. But at the last minute went along with the attorneys' perjured and twisted answers that, failed to answer the allegation/grounds as precisely, correctly, and concretely manner to satisfy the requirements of questions of fact and law. further, the trial court failed to support the first ground dealing with the second note to the trial judge (a question of fact and law) with authority and case law, a requirement. The Court of Criminal Appeals of Texas in Austin went along with the trial court's "Presumption of Correctness" and did not even consider the Constitutional Violations and the damaging "Miscarriage of Justice" that, prevailed by such an uncalled for and unfair tactic, which defendant is powerless against. I sent my rebuttal to the trial court's Findings and Conclusion of Fact and Law, but the Court of Criminal Appeals did not even consider and refused to rule upon. In turn, the Court of Criminal Appeals denied my writ without a written order and without a hearing, but rather upon the "Presumption of Correctness" of the trial court, which goes against the grain, and in violation of my Constitutional Rights. I submitted a Motion to Appeal the Court of Criminal Appeals' judgment, hoping for justice to prevail and the opportunity to be heard and prove my innocence, but was refused to do so.
 
After having exhausted all my State's Collateral Remedies, I proceeded with my Appeals Process, praying that, Federal District Court would consider and acknowledge that a graven Fundamental Miscarriage of Justice had prevailed in the Texas Judicial System. But to my shock, the attorney general's staff rebutted my allegations to prove my innocence and my Constitutional Violations by using a sly, underhanded, and unfair tactic called the Antiterrorism and Effective Death Penalty Act and claimed that, I had missed filing my federal habeas petition by approximately 31 days without considering that, I had a Motion to Appeal the judgment of the Court of Criminal Appeals, pending, before I could continue with my federal appeals process. Regardless, the federal district court granted the State's Motion to Dismiss my federal habeas petition on the grounds that, it was procedurally time barred by the one year limitations of the Anti terrorism and Effective Death Penalty Act that, was signed into law by President Clinton on April 24, 1996. Well, the truth to the matter, federal district court could not grant the State's Motion to Dismiss being, the Court failed to apply the "Miscarriage of Justice Test" where a Constitution Violation has resulted in the conviction of one who is "Actually Innocent" and the trial records support the innocent conviction denying Mr. Suarez the pursuit of life and liberty as guaranteed by the U. S. Constitution, Art. I, § 9, cl.2, and would violate the" Suspension Clause" of the Constitution, Art. I, § 9, cl.2 ("The privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it"). furthermore, by granting the State's Motion to Dismiss, the court failed to apply the "Miscarriage of Justice Test" and this requires some type of action for defendant's freedom.

An ex-lawyer was in the process of helping me put a subsequent writ in order that, I prove my innocence and came across some more Newly Discovered Evidence. The Newly Discovered Evidence deals with the fact that the Police released the Crime Scene (the car) that night of the accident in violations of their own procedures and State Law. The police failed to maintain custody of the Crime Scene, failed to inventory the evidence at the Crime Scene, and lost Chain of Custody of the Crime Scene, crucial errors and grounds for relief.  

The following are issues I wish to present to the trial court in defense of and to prove my innocence: The location of the victim's eyeglasses, and whether or not any blood was on the bag, or blood on the trunk of car, is proof that would easily prove which story is true, State Witness or defendant. Police took control of the vehicle, and contents immediately. Police refuse to allow
defense to review the evidence of the bag, and the inventory of the car. A simple fact: if the glasses were found in the trunk, the cousin lied in her testimony. Blood on the bag would also prove that it was removed and put back in the trunk after carrying his wife, who was bleeding profusely. May officials withhold evidence from the defense?
 
The following is the argument I wish to present whenever I do get a "Rehearing Trial" to be able to prove my innocence, or I pray for a New Trial: "Under Brady, to establish that the State has breached this duty, the defendant must show that: (1) the state withheld evidence, (2) the evidence is favorable to the accused and (3) the evidence is material to guilt or punishment. Bagley, 473 U.S. at 674. This duty extends to both exculpatory and impeachment evidence. Id. at 676. It is simply a matter of the following: (1) If the eyeglasses were found in the trunk the defendant told the truth. (2) If the eyeglasses were found any other place, the witness, cousin of victim, told the truth. The location of where they were found tells all. That evidence is very material to the defense and would impeach the only state witness. That evidence was surely withheld if any halfhearted true investigation was made. The defense requested all evidence and did question officers on the stand who merely said, "I don't know". Defendant is in prison because of that officer's testimony.

The Supreme Court has imposed four criteria for determining whether evidence is material. First, materially does not require the defendant to demonstrate by a preponderance of the evidence that omitted evidence would have resulted in acquittal. Second, he need not weigh the withheld evidence against the disclosed evidence to show he would have been acquitted by the resulting totality. Third, if evidence is found material, there is no need to conduct a harmless error analysis. Fourth, the withheld evidence should be considered as a whole, not item-by-item. Kyles-v-Whitley, 514 U.S. 419, 434-37 (1995). The sum of these four guideposts means that to show a due process violation when the state withholds evidence, a defendant need not prove that his trial necessarily would have had a different outcome; a lack of faith in the result is sufficient Implicit is this language is the state court's evaluation of the existing exculpatory evidence in light of the excluded, and potentially exculpatory, evidence. It is not the role of a court applying Brady to weigh the existing evidence against the excluded evidence, but rather to ask whether the excluded evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435.

Officers testified that the gun was found in the weeds at the location. But, they assert that the vehicle was never inventoried, and was released without preserving any of the contents as evidence. The location of the bag is said to be unknown. No photos of the trunk were made to show whereabouts of the glasses or condition of the bag.  

Movant asks this honorable court to consider the court believes this is true. Is that story believable? Can there be confidence in this verdict? Would any prudent investigation fail so blatantly? Was the defense damaged by the failure of officials to preserve evidence that could prove conclusively that the decedent's cousin committed perjury and the event in fact, was either an accident or merely reckless endangerment instead of murder? At the time of the investigation, the defense had no means to review the evidence and officials claim to have disposed of it prior to the defendant even be allowed an attorney. Either, officers were totally incompetent, or officers only saved evidence favorable to the prosecution. Were officers incompetent, or were officers dishonest? Either way, an innocent person is incarcerated. Movant request that this court issue an order of mandamus to officials of Tom Green County, to provide all evidence in the case so that defendant may file an application for habeas corpus based upon new evidence previous not available to him, or to call the case for rehearing and review. Surely a fair trial was not given in this case with only one side being presented, and only evidence favorable to the prosecution being presented."
 
My Prayer would close this argument with and as follows: "Movant prays that this honorable court grant leave to file an extraordinary writ of habeas corpus to request the right to review all evidence, and that the officials of Tom Green County, Texas, be ordered to locate, preserve and allow inspection and review by the defense of the vehicle inventory, the bag from the trunk, the eyeglasses, and all photos taken at the time, as well as sworn affidavits from all officers who investigated the vehicle and area of the shooting and specifically show the location of the decedent's eyeglasses after the event.

I am a layman of the law, and am far short of the knowledge to defend myself against experienced and seasoned lawyers, whose "Professional Norms" are to uphold justice, and a fair and just defense, by which I am not deprived of life, liberty, property, and the pursuit of happiness. But, it seems that, the Officers of the Court have turned their eyes away from Justice and condone "Miscarriage of Justice" as their "Professional Norms". instead of Justice being their "Professional Norms". Worded another way, an Officer of the Court's pursue of life, liberty, property, and happiness is the pursue of "Injustice in Texas"
.
On or about the 20th of April 1999, Dateline televised the pardon of a Fort Stockton woman named Sonia Cacy. She had been wrongfully accused of murdering her Uncle based on the testimony and testing of the evidence by Assistant Chief Medical Examiner Robert Bux. and the same Dr. Bux that fabricated and perjured the evidence and testimony at my trial  In Ms. Cacy trial, Dr. Bux testified to perjured and fabricated evidence, by admitting his having tested evidence at her trial, when in fact never tested the evidence that sent her to prison, by admitting that fuel was a product used to set the house on fire, when in fact the only petroleum product found by Chemist Hurst of Austin was from the mattress. Dr. Bux is the same one that supposedly tested the evidence and the clothing in my trial. A very doubtful scenario and testimony, because there are so many flaws in the record as a whole, as well as deletions from the autopsy report. Based on the results of the Fort Stockton woman's outcome, I believe my case merits a fair and impartial investigation by a "Rehearing and Review Trial", which will positively result in a REVERSAL and ACQUITTAL and freedom. Note: Bexar County forensic Science Center in San Antonio had been the topic of fabricated autopsy report since on or about 1987. The County has paid X-amount of dollars for such conduct and it all started with Dr. Zein, in cahoots is Dr. Bux, as well as Dr. Dimaio. Dr. Dimaio was the Chief Medical Examiner who condoned this conduct and sentencing of innocent human beings by their supposedly trustworthy testimonies.

Clem Suarez , USN-RET.


P.S. 
The law reads: "Prosecutors are obligated by law to disclose any Potentially exculpatory evidence to the defense..."
 
"One of the basic tenets of our Criminal Justice System is to protect the rights of the innocent man to the extent that (if) there's any reasonable doubt that he commited a crime, he's supposed to be set free."

If there is anyone out there that is willing to help me prove my innocence I would be extremely grateful and would be indebted to whomever for the rest of what life I still have remaining since I am 58 years old and wish to spend some quality time with my children and grandchildren. Thank you for listening to my winded story, but contrary to popular belief, the prison system in Texas does have innocent people behind bars.

Very Respectfully,

Clem Suarez
Chief Petty Officer
United States Navy -Retired

© Copyright 2003 Clemente Suarez

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