Judge Elia C. Lopez in 30 to 60 days will tell the Texas Court of Criminal Appeals whether she thinks convicted murderer Manuel Velez should have another day in court.
Velez was convicted in October 2008 of killing 1-year-old Angel Gabriel Moreno. He was sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence in June because expert witness testimony on future dangerousness was deemed inaccurate.
The child’s mother, Acela Moreno, pleaded guilty to striking Angel Gabriel Moreno on or about Oct. 31. She served five years of a 10-year sentence and testified against Velez during the trial. She received a plea deal and pleaded guilty to injury of a child.
Lopez listened to five days of testimony detailing what Velez’s pro bono habeas counsel said were critical mistakes by his defense attorney, Hector Villarreal, that included not exploring medical evidence or failing to call witnesses who might have cast doubt as to whether Velez was responsible for the child’s death.
The state of Texas disagreed with Velez’s habeas council and said Velez already had his day in court and that his attorney at the time had a strategy and did his job.
“I think that Mr. Villarreal did the best he could do,” prosecutor L.J. Rabb said. “And hindsight is not the standard.”
Rabb said Velez’s current attorneys had bigger pocketbooks than did Villarreal and went out and found experts who bought into their theory.
“He (Villarreal) didn’t have the availability of a pack of high-priced, suited attorneys,” Rabb said.
Habeas attorney Greg Kanan said experts are witnesses and Villarreal had a duty to fully explore and investigate the case against Velez, something Kanan believes was not done.
“There was a gross failure here by defense counsel, and it must be remedied with a new trial,” Kanan said.
Kanan said Velez was not even in Texas when the child sustained the fatal injuries. Habeas counsel maintains that Velez was in Tennessee the five weeks prior to Oct. 14. However, the state in 2008 based its case on the premise that Angel Gabriel Moreno sustained the injuries on Oct. 18 or later, after Velez had returned to Texas.
Dr. Daniel Brown testified last week that the child had a subdural hematoma, a brain injury, that was 18 to 36 days old at the time of his death, and Brown added that the injury could have contributed to the baby’s death.
Prosecutors maintained that injuries the child suffered on Oct. 31 killed him. Habeas counsel has said that a combination of injuries sustained before Oct. 31, in addition to those sustained that day, killed him.
“Manuel Velez’s counsel never called Brown to ask the age of the subdural hematoma,” Kanan said.
Also in question were two skull fractures the child had. During the trial, Dr. Norma Jean Farley testified that they were seven to 14 days old at the time of death.
But during last week’s portion of testimony, habeas counsel asked her if it was possible that the skull fractures were older. She testified that it was possible, but at most 20 days.
“Velez’s attorney never asked, ‘Can they be older than 14 days,” Kanan said. “A simple question.”
As for arguments about a rapid increase in head circumference for Angel Gabriel Moreno during June and July of 2008, the state says it was just a mistake by a medical assistant who measured the child’s head incorrectly.
“In our opinion, they’ve made a mountain out of a molehill,” Rabb said.
But Kanan said Velez’s attorney never even considered or explored the topic of head circumference and vomiting that the child suffered during those months, which the state and Dr. Asmir Zamir, who examined the child on several occasions, said was from other medical conditions.
Kanan pointed out that Velez wasn’t with Acela Moreno during June and July. Back then, the mother was living with her common-law husband, Juan Chavez.
“We can’t claim or prove vomiting was connected to head circumference,” Kanan said. “But shouldn’t a jury have heard those questions?”
Rabb said for much of the medical evidence, which he doesn’t believe is new, even habeas counsel’s expert attorneys disagreed on, and when confronted with photos of the baby’s corpse, some of them changed their opinion.
But Kanan disputed that notion, saying even one of the state’s expert witnesses in 2008 testified that a combination of injuries killed the child.
“A jury never heard the significance of this,” Kanan said, adding that if the other injuries were inflicted when Velez was not around, what is the likelihood that Velez inflicted the new injuries instead of the person who caused the old injuries?
“The jury should hear all the evidence and make a determination,” Kanan said. “They heard half.”
A re-sentencing trial for Velez is tentatively scheduled for April 2013.