Tercero, Bernardo Aban, WR-62,593-04

Background

Defendant Bernardo Adan Tercero was convicted (Oct. 2000) of capital murder for the fatal shooting of a customer, Robert Berger, during a robbery at Park Avenue Cleaners in Houston; jury sentenced him to death.
The central dispute at trial was mens rea: whether the shooting was intentional (capital murder) or accidental in the course of a robbery/struggle (lesser included offenses). Eyewitness and forensic evidence was inconclusive.
At trial, Sylvia Cotera testified that Tercero told her he shot Berger to eliminate a witness (the child saw his face) and for motives related to the amount taken; the prosecution repeatedly relied on that testimony to show specific intent to kill.
After trial, investigator notes (2000) and a recent sworn declaration from Cotera assert that her trial testimony was false or coerced — she now says Tercero described a struggle and that the shooting was an accident; she also says threats from prosecutors and fear influenced her earlier statements.
Tercero filed a subsequent state habeas application (2015) asserting a due-process violation from the State’s unknowing use of material false testimony by Cotera; he requested a stay of execution and an evidentiary hearing under Article 11.071 §5.

Issues

Issue	Plaintiff's Argument (Tercero)	Defendant's Argument (State)	Held
Use of false testimony in violation of due process	Cotera’s trial testimony was false; its unknowing use by the State was material and undermined confidence in verdict and sentence	State had no knowledge that Cotera’s testimony was false; Cotera’s earlier statements were inconsistent and her credibility is questionable	Application asserts unknowing false-testimony claim and seeks review/remand; court must determine §11.071(5) availability and materiality (claim presented for consideration)
Whether the false-testimony claim is a previously unavailable legal basis under Art. 11.071 §5	Claim was not available in 2008 because Chabot/Chavez recognition of unknowing false-testimony as a basis post-dates earlier filings	State would argue procedural bars/subsequent-application rules may preclude review	Plaintiff contends Chavez and related authorities make claim newly available; court must evaluate §5 compliance
Materiality standard applicable to unknowing false testimony	Material if there is a reasonable likelihood it affected the jury’s judgment (Brady-like reasonable probability standard); Cotera’s testimony was the State’s mens rea linchpin and jurors deliberated long	State would emphasize other evidence (eyewitnesss, forensics, defendant’s admissions) and argue no reasonable probability of different outcome	Plaintiff argues Cotera’s recantation undermines confidence (jury deliberations show close case); resolution requires factfinding at habeas evidentiary hearing
Relief sought (stay/remand/evidentiary hearing)	Stay of execution, remand to trial court for evidentiary hearing; if Cotera’s recantation found credible, grant relief on conviction or sentence	State opposes stay and may contest credibility; may assert procedural default/timeliness issues	Plaintiff requested stay and remand; court must decide §11.071 timeliness/subsequent-application prerequisites and whether to order an evidentiary hearing

Key Cases Cited

Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) (recognizes due-process violation when the State unknowingly uses false testimony)
Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) (sets materiality standard for false-testimony claims; falsity plus materiality entitles petitioner to habeas relief)
Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) (discusses false-impression test for evaluating whether testimony is false)
Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011) (addresses use-of-false-testimony due-process framework)
Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (concurring discussion urging a stricter materiality standard for unknowing false-testimony claims)
Napue v. Illinois, 360 U.S. 264 (U.S. 1959) (holding that use of false testimony known to be false violates due process)
Giglio v. United States, 405 U.S. 150 (U.S. 1972) (extends Napue; requires disclosure of deals/agreements used to impeach witnesses)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose exculpatory material that is material to guilt or punishment)
Kyles v. Whitley, 514 U.S. 419 (U.S. 1995) (defines "reasonable probability" standard for Brady materiality)
Smith v. Cain, 132 S. Ct. 627 (U.S. 2012) (reiterates Brady materiality as undermining confidence in outcome)