548 S.W.3d 606
Tex. Crim. App.2018Background
- In 1994 Kussmaul was convicted of capital murder after co-defendants Long, Pitts, and Shelton pleaded guilty to sexual assault and testified that Kussmaul raped and shot victims Leslie Murphy and Steven Neighbors; Kussmaul received life. The three accomplices later maintained their trial testimony.
- Early (1993) DQ‑alpha testing reportedly excluded the four men as contributors to seminal material, but that information was not effectively presented at trial and was not understood uniformly by investigators, prosecutors, or defense counsel.
- In 2012–2014 advanced DNA testing (Y‑STR and autosomal STR) ordered under Chapter 64 produced clearer results: profiles from two unidentified males were found on vaginal swabs, crotch of jeans, and paper towels; none of the four applicants matched those profiles; a Negroid hair was also recovered.
- The trial court (Judge Allen) held Chapter 64 hearings and in 2014–2016 found the new DNA evidence persuasive, recommended relief under Article 11.073, and found the accomplices’ plea bargains and recantations undermined their credibility; he also recommended actual-innocence relief.
- The State conceded at the habeas hearing that ineffective assistance/false impressions about DNA at trial warranted a new trial for Kussmaul but disputed actual innocence; this Court reviewed whether applicants’ claims are barred by Article 11.07 §4, whether Article 11.073 relief is warranted, and whether actual‑innocence (Herrera) relief is established.
- Holding: The Court found the applicants’ claims not barred by §4 and granted relief under Article 11.073 (preponderance standard) because new DNA evidence was admissible and likely would have prevented convictions; but the Court declined to grant actual‑innocence relief (clear and convincing standard), finding the applicants failed to meet that higher burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the subsequent applications are barred by Article 11.07 §4 | Applicants: Y‑STR results and Article 11.073 constitute new factual and legal bases unavailable in prior writs | State: 1993 DQ‑alpha already showed non‑matching DNA; 2014 results are cumulative | Not barred: §4 satisfied because Y‑STR produced new, ascertainable profiles and Article 11.073 (enacted later) is a new legal basis |
| Entitlement to relief under Article 11.073 (preponderance) | Applicants: New scientific DNA evidence (unknown male profiles on multiple intimate items) would have prevented convictions by preponderance | State: Results not "new" or dispositive; absence of applicants’ DNA doesn't conclusively prove non‑participation | Granted: all applicants entitled to relief under Article 11.073; convictions set aside and remanded for further proceedings |
| Actual‑innocence (Herrera) claim (clear and convincing) | Applicants: Recantations + DNA excluding them show they did not commit charged offenses | State: Trial evidence and corroboration (fiber, rifle type, eyewitnesses, accomplice testimony) still support guilt; recantations suspect | Denied: Applicants failed to meet clear and convincing threshold; habeas testimony not fully credible and trial corroboration persists |
| Admissibility/newness and probative value of DNA evidence | Applicants: Y‑STR/STR are admissible and more sensitive/discriminatory than DQ‑alpha; two unknown male profiles found on multiple items is highly probative | State: Early testing already showed non‑matches; newer testing only refines profiles and may be cumulative | Admissible and material: Court accepted that Y‑STR/STR were newly available, admissible, and would have materially affected outcomes under preponderance standard |
Key Cases Cited
- Ex parte White, 506 S.W.3d 39 (Tex. Crim. App. 2016) (Article 11.073 and Chapter 64 standards and interplay; preponderance standard for scientific‑evidence relief)
- Ex parte Pruett, 458 S.W.3d 535 (Tex. Crim. App. 2015) (Chapter 64 findings can foreclose Article 11.073 relief when testing is inconclusive)
- Ex parte Holloway, 413 S.W.3d 95 (Tex. Crim. App. 2013) (denial of actual‑innocence relief where new testing undermined one inference but trial testimony still supported conviction)
- Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (actual‑innocence standard and requirement that new evidence be persuasive despite evidence of guilt)
- Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) (respect for knowing, voluntary guilty pleas in actual‑innocence analysis)
- Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012) (multiple pieces of newly discovered evidence may be weighed together in innocence claims)
- Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009) (preponderance showing that new evidence would have prevented conviction warrants relief)
- Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) (preponderance analysis under Chapter 64/11.073)
- Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005) (standards for considering new forensic evidence)
- Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (U.S. 2009) (advances in DNA technology increased sensitivity and discriminatory power of STR testing)
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (admissibility of DNA evidence under Rule 702)
- State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) (Texas definition of actual innocence limited to not having committed the charged offense or any lesser‑included offense)