*1 parte Ex Lee Clarence
BRANDLEY, Applicant.
No. 70719. Texas,
Court of Appeals Criminal
En Banc.
Dec. 1989.
Rehearing Denied Jan. DeGeurin, Houston, Nugent,
Mike Paul Brown, Conroe, appellant. Donald M. for III, Conroe, Speers, Atty., Peter C. Dist. Huttash, Austin, Atty., Robert State’s the State.
887
hearing
held an extensive
The trial court
entered
application and
to this
pursuant
law
conclusions of
findings of fact and
OPINION
judge
the
applicant. Therein
favorable
that
concluded
presiding over
BERCHELMANN, Judge.
due
a fair trial and
applicant was denied
habeas
application
This is an
for writ of
tes-
Commenting upon the
process
law.
art. 11.-
corpus. Tex.Code Crim.Proc.Ann.
hearing,
trial
timony adduced at
capi-
Applicant
tried for the
07.
was twice
court stated:
Cheryl Ferguson. Appli-
tal murder of
de-
litany
graphically
events
first trial ended in a mistrial when
cant’s
witnesses,
it chill-
some of
by the
scribed
jury
was unable to reach
verdict.
conclu-
shocking, leads me to the
trial,
guilty
found
his second
was
pervasive shadow of darkness
sion the
appeal, we affirmed
as indicted. On direct
light
of fundamental
has obscured
holding, among other
applicant’s conviction
rights.
I can
decency and human
things, that the
was sufficient to
evidence
here,
justice
on trial
sadly state
has been
Brandley
v.
support
jury’s
verdict.
significance,
injustice has
of more
but
State,
(Tex.Cr.App.1985):
with the the walk is, through, applicant approached I. the stairwell after the victim walked *3 Set forth below is a summary of the stairs and headed into the restroom. At findings fact, of by judge pre- entered the however, the evidentiary hearing, Sessum siding over the hearing, habeas which are perjury ap- admitted that he committed supported by the record. plicant’s in first trial and lied his statement Applicant indicted, convicted and to the authorities he was in fear of because sentenced to death for the sexual assault Styles. both Acreman and He testified at and murder Cheryl Ferguson. Fergu- hearing the that Acreman the talked to son’s Saturday, August death occurred on approached victim as she the stairwell. during girls’ volleyball tourna- up stairs, Acreman her followed talked High ment held at Conroe School. The fall stairs, top to her at the of the and then begin semester was scheduled to on Mon- grabbed the victim. Acreman was accom- day, August 31. The authorities an- panied by janitor high a former of the public nounced suspect that a would school, later identified as James Dexter prior be arrested to the commencement of screamed, Robinson.2 The victim “No” and Ranger classes. Wesley Styles Texas “Don’t,” help. Contrary and cried for in investigation. called to head the Styles statements, prior his Sessum testified that began investigation his evening on the applicant did not arrive until ten five or Thursday, August 28, days three before girl after minutes was accosted. classes were scheduled to resume. The Sessum further testified that when Acre- day, prior next interviewing any witness- man him day drove home the of the mur- es, Styles applicant, janitor arrested der, Acreman warned him that if Sessum high Saturday, school. August On anyone told there would be “trouble” for Styles arranged for three other Conroe repeated warning Sessum. Acreman his High janitors, Acreman, Gary School Sam prior through.” Sessum to the “walk Sessum, Martinez and John to meet at the Styles When Sessum tried to tell about high Styles school. did not them interview Acreman, Styles threatened to arrest Ses- separately, but instead conducted a “walk sum if cooperate Sessum did not with the through” janitors wherein the were walked through. through sequence walk Sessum testified that in day of events of the murder, 1987 he questioned of the and were was assaulted an man each unknown presence. Gary inquiring others implicat- Acreman did most who was about Sessum talking through. at the walk Acreman in the death of the victim. cause, dissenting opinion 1. In evidentiary hearing day his to this at the that the Presiding Judge disregards overwhelming murder Robinson did not return home until supporting findings evidence the trial court’s midnight. after Robinson awakened Medina impassioned attempt reject findings. those and stated that he had to leave the state because looking support Instead of at the evidence in girl, girl’s he killed a but that he had hidden the findings, opinion attempts to contradict body so well that no one would find her until he by citing snippets grand jury them and trial early was out of town. Robinson left state testimony, at times out of context and other morning, leaving behind his blood stained fashion, complete times in a less than in addi- tennis shoes. The record reflects that Medina offering personal gratuitous tion to observa- attorney first her told this information to course, not, tions. Of been, this is nor has it ever attorney 1986. Medina’s informed the District appropriate standard of review of a Attorney’s judicial Office of extra confes- See, findings. example, Judge trial court's attorney sion. When Medina’s learned that the infra, concurring opinion, Duncan’s for a more Attorney’s District Office failed to inform de- explanation problem. detailed of this information, fense counsel of this he notified Medina, 2. Brenda the woman with whom Rob- defense counsel about Robinson’s confession. murder, inson lived at the time of the testified changed story The trial court to co- testimony through, found Sessum’s Martinez his events; evidentiary at the through incide version of credible. with walk is, applicant approached the stairwell Gary appli- Acreman testified at both of up after the victim walked the stairs evidentiary hearing. cant’s trials and the headed into the restroom. Martinez ex- His at trial was consistent with plained the inconsistencies the two between story generated by through; the walk by stating that statements walk viz: the victim walked stairs through “helped me a lot.” At the whole restroom, toward the shortly followed evidentiary hearing, changed Martinez by applicant. thereafter hearing, At the story produced by through by the walk applicant entered into evidence two video- stating janitors that the victim asked the taped statements made Acreman *4 where the restroom located and that was proclaimed which Acreman applicant’s in- spoke Acreman to the victim. Prior to the nocence and stated that James Dexter Rob- Martinez, evidentiary hearing, gave who stairs, inson up followed the victim the police two statements to the and testified “No,” Acreman girl yell, heard the and trials, applicant’s at both of admitted never Acreman grab girl saw Robinson the and place. this conversation took Martinez also drag her into the restroom as she screamed changed through the walk version of help. videotaped statements, the events to he applicant’s which testified at Acreman stated that Robinson threatened by stating spent ap- trials that Acreman lying him into about the murder. Acreman proximately thirty away minutes from Mar- repeated again again videotaped and on the shortly tinez and Sessum after the victim statements that nothing had to to went into the restroom. with the murder and that applicant was “being railroaded.” Sessum, Acreman signed and Martinez following written statements the walk At hearing, Acreman recanted the through, Styles supervise but did not statements on videotapes. After much taking Styles of the statements. testified vacillation, Acreman admitted that Robin- that he had no idea whether the statements was, fact, son at the day. school that accurate, explana- and could offer no Acreman admitted that gen- the statements why tion Sessum’s statement was not erated through walk were incorrect signed until one month after the walk that failed to acknowledge that through. The trial court noted that spoke Acreman to the shortly victim before three written statements taken immediate- her death. Acreman claimed that the con- ly following through the walk were consist- versation completely slipped his mind until sequence ent as to the critical of events evidentiary hearing years held' seven and the critical time frames. after the murder. Acreman testified to a memory Peace, new found Henry that he left the other janitor Martin who dis- janitors victim, after speaking victim, with de- covered the testified on behalf spite he, his trial that applicant’s Sessum the State at both of trials. together girl Martinez were circumstantially implicated applicant when the Peace was murdered. by stating applicant repeatedly or- Peace dered to search the loft where the janitor The third attending the walk found, girl’s body until was Peace ultimate- through was Sam Martinez. Prior to the ly discovered the victim. through, gave walk Martinez a statement differing with a version of Styles events of the At the Peace stated that day days of the murder. Two after the night arrived at Peace’s home one murder, gave wall, against Martinez a statement choking forced Peace up the victim by twisting walked stairwell and head- Peace the chain Peace wore Peace, ed towards the restroom after around his neck. a man the trial tall, had come Styles’ being the stairs. After walk court noted as under five foot was taken to the Cleveland Police pubic Station the Caucasian hair found near route, vagina, until 1:30in the morning. Styles Styles En victim’s testified at the hearing, say evidentiary threatened to “Let’s didn’t do “blow” Peace’s brains out. done, why it and it wasn’t wasn’t When Peace complained Styles’ treat- done, I don’t know.” Office, ment Attorney’s District Peace was told that the office would “take Additionally, the State resisted all at- care of it.” Later the members of the tempts samples to obtain blood from Acre- Attorney’s District Office told he Peace man, despite Martinez and finding Sessum “hallucinating” Styles had man- blood inconsistent with blood handled him. Peace testified that type he con- Type on the victim’s A shirt. blood Styles. tinues to fear shirt, although found Type blood, victim A there were no was not Peace allowed to leave police any part body, lacerations to of her indicat- statement, until signed station he a written may originated the blood despite inability his read or write. perpetrator. from the Applicant Type has family Peace asked that a per- member be years murder, 0 blood. Not until after the mitted read the statement to him before Attorney when Texas General’s Office it, signed he police but the denied Peace’s began investigate validity appli- occasion, request. On another Peace was *5 conviction, cant’s finally did the State ob- by police told a officer that Peace was too samples tain of blood from Acreman and small to have the committed sexual assault Type Robinson. Both men A have blood.4 murder, and but nigger” that “the [refer- Moreover, after autopsy the discovered ring applicant] big enough to have the existence of semen vagi in the victim’s crime; therefore, nig- committed the “the na, the analysis State failed to run an ger was elected.” the sample to determine blood type the The trial court found that the murder Joseph the Dr. Jachimczyck, donor. now investigation was so contrived that it cre- Examiner, the County Harris Medical testi: ated false investiga- and the evidentiary hearing fied at the that his any tion failed to follow leads which did not type office test for did not the blood of the comport preconceived, premature with the donor, and that he did not know whether notion that committed the mur- the samples given to the Conroe Po Styles evidentiary Department. der. admitted the lice A from detective the Sex hearing that Crimes of the before he arrived in Unit Homicide Division of Conroe Department the Police prior interviewing witnesses, and Houston testified at the hearing that it police was standard only suspect. was his Styles procedure preserve in 1980 to vaginal the despite maintained this blind focus the fact swabs investiga taken sexual assault hair, pubic that a Caucasian not belonging tions, and that there is justification no victim, to the was found near the victim’s discard the can swabs because scien vagina. The State all resisted efforts to tifically suspects exclude based blood samples comparison obtain hair for from typing, Rh factor and genetic other charac janitors the three who saw the victim mo- spermatozoa. teristics the donor of the pressed ments before the assault.3 When why for a reason he not want Likewise, did to obtain investigate the State failed to sample Cheryl Bradford, a hair from compare volleyball Acreman to lead from samples being prepared It would be futile to obtain for com- when the record was for direct today, parison containing for the exhibit the appeal. missing hair Caucasian was became while the record Presiding Notwithstanding Judge’s the asser- being prepared appeal. for direct contrary dissenting opinion, tion to the in his bloody regarding clothing these facts the are samples finally 4. The blood obtained from Acre- by parties uncontradicted the record the compared man and Robinson cannot with this cause. the found on blood the victim’s shirt because missing stained the blood shirt became also
891 a false may floated Acreman participant. at the evi- Bradford testified Styles never asked applicant, mur- dentiary hearing day story about the meaning of the state- der, hallway as passed she the victim in the Acreman about investigate Regarding restroom. his failure to Bradford returned from the ment. testified, might’ve gym- statement, “I proceeded Styles thereafter Bradford began warming up [Acreman], didn’t.” nasium asked but should have game. thirty investigate last Twenty to minutes after he did not He also stated alive, seeing “hearsay.” the victim Bradford observed it the statement because was rushing gymna- through two men white seeing sium. recalled the men because She II. volley- attending no males there were pro investigative the State’s Where Her descriptions ball tournament. in a may result improper, is so cedure weight height, two men matched the process rights an accused’s to due denial of pair hair color characteristics of the now 440, California, 394 U.S. of law. Foster v. having accused Sessum committed (1969); Dis L.Ed.2d 402 89 S.Ct. murder, Gary Dex- Acreman and James (5th pensa 847 F.2d Lynaugh, v. body ter After the victim’s Robinson.5 Foster, Cir.1988). Supreme Court discovered, volleyball Bradford told her held that where State orchestrated men. her
coach Bradford and about unnecessarily procedure “so identification Depart- coach contacted Conroe Police irreparable suggestive and conducive to lead, police ment but “were accused, the identification” of an mistaken real interested information [her] may conduct amount to a denial State’s get phone.” were in a rush to off [her] totality process, judged due police never contacted Bradford for *6 442, Id., at 89 information, circumstances. 394 U.S. any govern- further nor did 1128, citing v. quoting at S.Ct. Stovall agency ment ever inform counsel defense 293, 1967, Denno, 302, U.S. 87 S.Ct. Eight years of 388 the incident. after the mur- (1967). der, 1972, L.Ed.2d 1199 program saw a 18 Bradford televised questioning validity applicant’s of con- Although impermissible Foster involves got “chills" a viction. She when she saw proce- in an State conduct identification of picture televised James Dexter Robin- dure, Process of the Four- the Due Clause son, although identify unable to Robinson is limited to teenth Amendment through she rushing one of the men saw in that context. For action narrow State’s subsequently auditorium. She recon- process is where example, due not satisfied witnessing tacted the authorities about “through a contrives conviction the State men. Trial counsel for nev- applicant were is but pretense of a trial in truth which er informed about this information. of defendant depriving as a means used Holohan, Mooney v. 294 U.S. investigate liberty.” failed to a lead of
Styles also 340, 112, 342, 103, L.Ed. 791 given by Styles after 55 S.Ct. 79 Peace conducted (1935) testimony). (State’s perjured use of through janitors. walk with the other Styles process’ due satisfied where day informed that the of the Nor is Peace perjury, fails to correct unsolicited high murder Acreman re-entered the school State Illinois, 264, 269, 79 Napue that 360 U.S. applicant alone and stated was “hav- v. (1959), 1173, 1177, 3 1217 nor good Despite L.Ed.2d looking girl.” fun S.Ct. suppresses favor- evidence may that either have where the State prospect Acreman act, Brady Maryland, accused. v. witnessed the offense or a related able Acreman, testimony Martinez trial statements undermine the State’s recanted Bradford’s theory exclusively the case that was the in each that and Sessum janitor presence at whose was unaccounted for company girl the rest- after the entered other’s of, following, the murder. Addi- the time room. tionally, this information with the now conflicts 892 87, 83, 1194, 1196-97,
373 U.S.
83
description
S.Ct.
10 Acreman’s
near the scene of
(1963). Likewise,
L.Ed.2d 215
where the
shortly
after the victim
at-
crime
was
State’s conviction
part upon
is based in
tacked undermines Acreman’s now recant-
confession,
introduction of a coerced
a de
testimony
ed
that he
in a different
violated,
right
process
fendant’s
to due
building
janitors
with the other
at the time
Richmond,
534,
Rogers
544,
v.
365 U.S.
81
least,
question.
very
At the
it establish-
735, 741,
(1961),
S.Ct.
Although our review of the record testimony regarding his whereabouts.7
supports
finding
the trial court’s
that the
applicant’s pleadings
A
review
reflects
flawed,
investigation
State’s
we must
applicant,
inartfully, alleges
albeit
now determine
support
whether these facts
process
supports
evidence
a due
claim
the trial court’s conclusion of law
83,
under Brady Maryland,
v.
373 U.S.
investigation
applicant’s
lead to a denial of
1194, 10
prohibits
S.Ct.
L.Ed.2d 215 which
right
process
to due
and fundamental fair
suppression
State
of “evidence favorable to
“totality
ness. We look to the
of the cir
an accused
... where
evidence is mate-
cumstances” to make that determination.
guilt
punishment,
rial either to
or to the
Adams,
293;
parte
Ex
768 S.W.2d at
Fos
irrespective
good
faith or bad faith
ter,
442,
894
product
of such coercion.8
can be no doubt that the cumulative effect
investigative procedure, judged by
of the
The State’s refusal to obtain hair and
circumstances,
totality
resulted
samples
blood
janitors
from the three
who
deprivation
in
applicant’s right
of
to due
saw the victim enter the restroom creates
process
by suppressing
of law
evidence fa-
problems of a
type. Despite
different
evi-
accused,
vorable to the
creating
hair,
dence that a Caucasian
belonging
not
inherently
false
unreliable
victim,
her,
was found on
despite
testimony.9 Accordingly, applicant’s con-
the evidence that blood inconsistent with
viction must
reversed.
applicant’s
type
blood
was found on the
shirt,
victim’s
the State
process
resisted efforts to
Due
of
is the
of
law
cornerstone
samples
Acreman,
obtain
from
system justice.
Martinez
society
civilized
Our
and Sessum.
pieces
Because these
only
of evi- wins not
guilty
when the
are convicted
dence
Montgomery
were lost in
County
fair;
sys-
but when criminal trials are
our
being prepared
while
record was
justice
for
tem of
suffers when an accused is
appeal,
direct
no tests
per-
87,
can now be
unfairly. Brady,
treated
Although any of these incidences
alone We therefore set aside
convic-
might
support applicant’s claim,
tion,
not
there
and order
released to the
Although acknowledging
repeated per-
arguably supports yet
Peace’s
trial. This evidence alone
issues,
jury
dissenting opinion
process
on collateral
another due
violation: The State’s use
Illinois,
investigative
perjured testimony.
procedure
Napue
surmises that the
"did
v.
360
264,
1173,
(1959);
produce any
testimony"
U.S.
79 S.Ct.
895 conducted; Montgomery County hearing Sheriff of a to be to answer ordered held; upon Judge made find- hearing indictment which was Pickett ings convicted. of recom- of fact and conclusions law granted; findings
mending relief be
of
supported
fact are
the record and the
WHITE, J., concurs in the result.
are not erroneous.
conclusions of
law
Therefore,
they
accepted.
should
DUNCAN, Judge, concurring.
as we find it.
We must take
record
join
however,
I
majority opinion;
I
facts,
Accordingly, we cannot add
assume
separately only
briefly
write
to comment
facts,
facts,
disregard
or accord certain
upon
dissenting
opinions.
In fiscal
year
(September 1,
greater
significance.
facts
or lesser
That
1987-1988
1987 to Au-
gust
1988),
simply
no
this Court denied
not our function. There is
or dis-
2,259 post-conviction
question
missed
of material
applications
abundance
See Texas
corpus.
presented
writs of habeas
this case
task
with
makes our
System:
Report
Judicial
60th
Annual
extremely
why
difficult. That is
the trial
(Office
Austin,
judge
Court Administration:
is accorded the deference to make
1988), p.
numbers,
168. These sheer
if
findings of fact. All that
should do is
we
nothing else, emphasize the commitment of
they
supported by
determine whether
are
and,
respect
objective
this Court
every
the record. That is all.
I have read
circumstances,
under
certain
subjective
page
although
writ
findings
post-
made
the trial
in
court
may
findings
not have made the same
corpus hearing.
conviction habeas
Ten
Pickett,
Judge
fact or conclusions of law as
Adams,
parte
Ex
ago,
months
768
supported by
I do find that
are
S.W.2d
(Tex.Cr.App.1989),
this Court
Consequently,
record.
unless we are will-
unanimously quoted
approval
the lan-
ing to overrule all of- the
cases
parte Moore,
guage
of Ex
Where the that have the record. judge of the trial de- pends upon the existence or non-exist- Judge Campbell, dissenting opin- in his ence of a testimony pro certain fact and ion, specific also takes issue with the and con is introduced thereon ground upon granted relief is which conflicting evidence is it becomes the actually newly claims that it is discovered duty of judge the trial to determine the “wrap[ped] evidence ... in the more attrac- issue, appears and unless it to this court process Dissenting tive cloak of due ...” finding that his support was without in Opinion, slip op. p. 898. To continue the evidence, and that he had committed metaphor: the issue is clothed or whether thereon, judgment error his we wrapped process in due is irrelevant. findings would not interfere with his agree that this should not be the Court Id., thereon. S.W.2d repository every complaint that can be absolutely legion, newly cases are and I do made to a claim of discover- relative But, loosely, support not use that word ed evidence. the context this case, foregoing proposition. That is as it should when fundamental liberties have been get deprived newly be. This Court should not into the then the discovered evi- position having credibility judg- equivalent process to make dence is the of a due And, every conflicting Judge Campbell’s ments time there is testi- violation. conclu- mony. really very simple: implicitly process This ease is concedes that a due sion initially legit- right implicated. Court found that there was a He dismisses it on regarding imate constitutional issue raised the basis that he would not have made the *10 deprivation process findings Judge a claimed of due same Pickett. As I stat- previously, either, ed might underpinning” I not have but the habeas court’s conclu- Judge Significant findings by that is not the the habeas issue. Pickett’s find- sions. court, however, ings by supported by Thus, supported are either are not record. record, erroneous, clearly are or are the accepted. should be testimony result of taken out of context. The majority opinion recognizes this. findings by Almost all the habeas court why That joined opinion. judge majority that are utilized are inaccurate in some form. MILLER, J., joins. begins The majority its recitation of the relating investigation facts McCORMICK, Presiding Judge, by stating Ranger murder that Texas Wes- dissenting. ley Styles was called in to head the investi- join Judge Campbell’s Dissenting Opin- gation immediately and that he arrested ion and every finding reiterate that even if applicant. supported by This is not true, the habeas court is taken as there many absolutely record and is the first of legal precedent upon major- is no which the reporting distorted and biased ity grant can the relief it does. The record. The Attorney District of Mont- applicant’s records before this Court two Keeshan, gomery County, James called hearings totally trials and two habeas belie Styles prosecution aid in to after the findings the habeas court’s of fact. The Department already Conroe Police had de- only “blind focus” which has occurred veloped relating evidence to the murder. history today of this cause comes with Among the facts known to the Conroe Po- opinion manipulates that so the law and Styles appli- lice and before the arrest of irreparable facts as to do harm to the Cheryl Ferguson cant were: was a member 11.07, future of Article V.A.C.C.P. girl’s volleyball team that had come to merely point I write out a few the High Conroe School at around nine o’clock many glaring factual errors made in the 23, 1980, Saturday morning, August majority opinion. Although findings of participate in a tournament. For some rea- court, factual, may habeas if taken as another, Cheryl gym son or had left the specter raise the that another or others girls begun area where other may have applicant been involved with up Cheryl warm for their matches. When murder, the commission of this there is girls began did not return the other absolutely no remotely evidence which grounds. search the school exculpate applicant tends to or to show Written, sworn statements were taken guilty. that he is not applicant from and three other Conroe finding is entitled to (Sam Martinez, High janitors Gary School corpus case, major- habeas relief in this Peace) Henry appli- Acreman and before ity has relied extensively upon the habeas Styles’s cant’s arrest and involve- before findings court’s of fact. The habeas ment. These initial are all con- statements concluded, judge1 majority has and the following: regarding sistent On Satur- agrees, appli- that the State has violated 23, 1980, day morning, August jani- four process rights cant’s due in- because “the along applicant, supervisor, tors their vestigative procedure impermissibly was so preparing the school for various activ- suggestive that false was cre- Applicant janitors ities. had directed the Although ated.” neither the habeas court set in the chairs school cafeteria. majority janitors nor the has cited relevant authori- jobs. looking finished their While ty, both rest their anything conclusions on “the facts to see if else needed judges 1. Neither of the trial court that sat dur- of all the trials and hear- records ing applicant’s participated trials ings demonstrates the total failure of the habeas findings upon which resulted in the of fact judge to review these records. majority reading which the rests its decision. A *11 done, they girl go to officers inter- saw a into the Affiant and other CPD took statements from tourna- girl restroom. After the entered the rest- viewed and room, participants ment and from all custodians applicant paper. arrived with toilet 23, duty morning August on on the janitors applicant girl One the told that a crime occurred. Based on 1980 when the Applicant was restroom. told the disposal of body, the location of the the janitors go across the street to the voca- clothing and the fact that auditorium building. janitors tional The did so and building in the main and other doors applicant open waited there for come (as Saturday normally locked on however, Applicant, doors. never came was), appeared offense building. forty-five over to the About min- probably by employee committed an later, applicant utes called across street of the school. janitors to one get to come and probable “Affiant has cause to believe keys to the janitors completed doors. The and does believe that offense was building their tasks in the by and were told Brandley, by committed Clarence a black applicant go home. Peace remained to male, following for the reasons: help applicant lock the cafeteria doors. so, doing applicant Brandley by While “1. was arrested CPD and Peace ran committing attempted officers for volleyball players into the looking for Che- rape according on ryl. abduction 3/7/79 Applicant girl. decided to look for the reports. to CPD offense He and Peace found the door to the audito- unlocked; rium to be they checked inside. Brandley presently “2. Said on fel- Applicant balcony told Peace to look in the ony probation possession prohib- of a stage weapon. behind the area “because some of the ited get kids would behind the boards and Brandley, according “3. Said to four Statement.) (Applicant’s hide.” Peace dis- custodians, only other school Cheryl’s body covered behind a sheet of employee building in or around the main plywood. auditorium, keys who had store- building rooms and other doors in the at 23,1980. The murder August occurred on the time of the offense. Office, The Attorney’s requested District According “4. to the other custodi- Styles’s assistance in investigation ans, Brandley’s whereabouts are unac- 28, 1980, August Styles began work on during period counted for a 45-minute at day. the case the next Styles When arrest- time as about same that of vic- ed he was armed with informa- disappearance. tim’s by tion the Conroe Department Police pubic “5. A hair found on the victim’s along by with an arrest warrant supported body Depart- has been determined following affidavit: Austin, Safety ment of Public Lab “Affiant, an officer with the Conroe Po- Texas, male, to be that of a black (CPD) Department investigated lice appears pubic identical hairs removed along above offense with other CPD offi- Brandley’s person. from said victim, year cers. The a 16 old white Brandley “6. Said is the custodi- strangled female was found naked and employee duty an or who was on at the stage a loft area above auditorium location who is a black male. building High the main at the Conroe Department “7. A Houston Police missing School. She had been for about Polygraph Supervisor Captain advised body two hours her when was found. Monty Brandley Koerner that said had victim been the school for polygraph failed a test administered to volleyball short time attend tourna- August him on in connection being gym ment held in a near the main with the offense.” building. found her cloth- CPD officers days plastic bag later in a identi- majority’s Styles two statement ar- personnel. “preconceived, cal to those used school rested *12 up came about stockey guy, he also premature applicant notion had com- short that (5) All five of us murder,” time as we did. ignores Styles mitted the that to the cafeteria and Clarence then went had the written statements of essential wit- up set the tables and us where to showed applicant him arrested nesses before a half It took about a hour and chairs. Any implication judicial authority. under we finished up to set the chairs. When majority Styles made that investi- hall to the front of walked out in the we gated the murder offense without resort to min- building. waited 10 or 15 We relevant information in an effort to convict people couple utes. There were supported by is not the record standing in the hall around the end rejected. and should be came gym is. When Clarence where attempts to majority opinion also coming up We up girl was behind. walk-through Styles discredit the con- out, watching there is a kidded him about janitors. ducted three of the The ma- him. She pretty girl coming up behind walk-through “gener- jority writes that the hair, length 5’ about had blond shoulder majority therefore ated” stories. The tall, jeans pullover and a she had blue janitors, holds that because one of the John told us what we sweater on. Clarence Sessums, implicating Gary is Acreman now (4) go. The four had to do and where to murder, years nine after the this leads up to the annex to set of us then went walk-through “cre- the conclusion that the something chairs. said he had Clarence testimony.” ated false at the stayed We set to so and behind. First, wrong. Judge majority is (5) minutes, then Eckie annex about five dissent, Campbell points in his out John got key from Clar- went back testify applicant’s did at trial.2 Sessums up got set ence. When he back we is, therefore, impossible anything he It if and it and chairs. We finished tables being now asserts as true created false or 11:00 A.M. Clar- was around 10:30 testimony part trial. It is out- on his us it looked ence came over and told standing majority willing good go home. That is and we could place hearing faith in Sessums’s writ testi- left, I know Gary and I do not when when, mony walk-through, even left.” and the other two when Clarence before gave following Sessums sworn state- throughout.] [Sic police: ment to Nowhere, in this statement does Sessums A.M., I “I 8:00 came to school about girl “no” and say that he heard a scream Gary rode to work with in his Datsun “don’t”; in the statement is there nowhere Pickup, orange and color. We white person other any that another indication building. park front of the vocational involved; and janitors may be than the building, the We walked over to the main is there indi- nowhere in the statement all locked and we waited for involved, doors were yet that Acreman is these cation true, waited about 10 or 15 events, highly significant. Clarence. We if would got walk-through came after we Regardless minutes. Sammie of how the conducted, it waiting. impossible Clarence there and was also it would be inconsisten- opened generated such blatant came down the sidewalk subject Eckie a cies. another door. There was Apparently con- defense counsel testimony rection.” at the first of
2. Sessums's Attorney’s trials and at the first writ District assessment two curred in the that of his initial statements to consistent to The trial record makes Sessums as a witness. police. writ Keeshan testified at the second abundantly presented to clear that Sessums was however, hearing, that he did not use Sessums applicant’s behalf but counsel to call on defense appli- the second trial because at as a witness at It is ironic declined to do so. (which resulted in a mistrial cant’s first trial accepts majority Sessums’s second now that the agree punish- jurors were unable to when the back on as credible but turns its writ ment) on cross-ex- Sessums became "confused” testimony. all former "testify every di- would amination and per- any other had seen if he Moreover, When asked majority fails to consider the cafete- gave building around in the main janitors that none of the other who son saw a police prior responded that he ria, applicant written statements to the Acreman, Styles’s implicated also testi- lady. Applicant involvement young man and true, yet story if Sessums’s males no other black fied that he saw says happened that he now would events personnel and day, no school building that *13 janitors place have taken when all if he had seen Asked no other custodian. —includ- ing applicant participate did not in the who testified, “Nobody else, applicant anyone walk-through together. It is sur- Thus, impli- —were did not even else.” prising majority has failed in its that the his anyone else in either or cate Acreman rendition the facts to include in his be- police to affidavit testimony, applicant, accompanied but Moreover, and what grand jury. fore the lawyer, during grand jury his testified ap- conveniently ignored, majority has proceedings as follows: jani- himself, exculpates the other plicant, “Q. you going put Why were to day of the murder. [toilet at the school on the tors restroom, boy’s had paper] into the during colloquy following The occurred you already checked the other one? testimony: grand jury lady “A. I—there was a had al- No. “Q. any of the other You don’t believe ready up went there—she took the did it? custodians paper up there. She came back experience I’ve “A. Not after my way I and was on back.... They don’t seem be with them. That’s when I met all of them. it. type person that would do They standing.... were opportuni- “Q. they have had Would [Questions Responses regarding and something like that? ty to do girl paper who took toilet into the rest- “A. No. room] “Q. opportunity of an You didn’t know “Q. you to talk her? How did come to do it? they have had that would standing hallway “A. She was No, “A. sir.” when I asked the coach about [the testimony, grand jury In addition to his paper] toilet and I asked her would August an affidavit on applicant executed up run and check that one and she 23, 1980, concerning the events that oc- up I and then left and went back day of the murder. curred on the Ackerman, Sam, Hen- this is when sup- fail to by applicant events as outlined standing. ry Peace and John was all remotely account port Sessums’s them, even go I across the told “let’s Therefore, accept the if we the events.3 and I sent them over across street” the walk- majority’s conclusions right and I I’ll the street said testimony we through generated false over.” guys to finish clean- Applicant's police and waited for the sworn statement is as down ing they When finished cafeteria. follows: cafeteria, voca- all of them to the I sent Dupre brought "Beverly me to work a 7:40 up building set put across the street to tional A.M., Ackerman, Sam, Henry John and Peace Monday toilet and I went to chairs for paper already when I arrived. I were at the school went across Then I in the restrooms. opened into the cafete- the doors and let them guys putting up the finished the street and ria, I wanted and then I showed them what Ackerman, John, and Sam told chairs. I then gym into the them to do. I then went Henry go I they and and home could trash, and take out the then unlock the doors building to lock to the main went back coach in left the alan wrench with the I calling girls for We heard some cafeteria. charge volleyball could lock team so she girls they that one of the and told us someone Shamrock Station doors. Then I went to the they looking missing for her. was bought cigarettes. Then I came me some Henry all doors we needed to check told Henry girls gym if and asked the coach back to were locked. and make sure checking it was then paper I left and the doors and bathrooms have and then I started was auditorium door building. that the I sat we discovered went back to the front of the accept janitors, Robinson, must also that the other James Dexter assailant. however, including applicant, majority opinion, gave false fails to re- state- occurred, late how that interview ments their wit: reports initial police Reyna, private investigator Richard for and that grand jury lied in the applicant, began testified that he before his proceedings. It likely is far more that the told interview he Acreman that there “was passing of years responsible nine for eye-witness putting new account was changes Sessums’s account of the inci- him James on the landing ... and Robinson school, dents not the investigative girl with the and that there had been trou- procedures by Styles. Indeed, utilized Ses- Further, Reyna ble.” told Acreman: “You sums prior testified at a writ hearing on rap anyone.... don’t need to take for August 1986. At that time the girl I fed him being this ... said the significant change in his account of the grabbed yelling she help.... *14 events was that he Acreman saw talk to a Then him I told that Robinson James girl as she entered the restroom. None of upstairs run from the fountain. water the events that he now claims to have said we that.” know happened are testimony included in his at hearing, At the writ Acreman recants hearing.4 Again, this majority errs in Reyna what tape he told on the video accepting the habeas findings court’s telling testifies that he was into “scared fact, findings such regarding John Sessums what hearing, was said.”5 Also at the writ clearly are erroneous reject- and should be judge court a finding habeas entered ed. “[bjased upon that Gary’s Acreman’s an- majority also claims that Acreman swers questions and his countenance may given testimony false due to the during many hours he was that on the walk-through. majority is willing to stand, witness this court that finds his tes- place taped its faith a video interview of timony evidentiary hearing at the was in- Acreman that was admitted into evidence credible, generally untruthful and not wor- hearing. at taped the writ In the inter- thy majority of belief.” When the relies view, implicates person, Acreman another upon taped the video of Acreman interview open. We went Reyna investigative inside the auditorium and 5. When was asked his about looking started around. Then we discovered techniques securing Acreman's Sessums’s that the back door of the auditorium was stories, related, "My any he tactics open. stage We went on to the and cut the your applied by different than tactics officer of lights on so we Henry could see. then told police agency. They other are the same.” stage to look around the because some- Thus, majority would have this Court find Henry times the kids would hide in there. Ranger that when a Texas an conducts investi- looking up balcony and I were behind gation techniques pro- that utilizes certain it stage get because the kids sometimes be- when, however, testimony, appli- duces false Henry hind the boards and hide. Then investigator techniques cant’s utilizes the same plywood moved this sheet of and called me produces reliable information. girl lying and I went over there and saw the pulse I then there. checked her and found no finding by 6. This one the habeas court is not pulse. got I then went and one of the Police clearly erroneous. Three witnesses who testi- body Officers and showed where him applicant hearing, fied on behalf of at writ was.” stated that that Acreman had told them he knew taped 4.A video John interview of Sessums witness, who had however, Each committed murder. applicant's attorney was admitted into evidence did not believe Acre- testified hearing. appears at the writ In it Sessums to be man when he told them this. One of these describing intoxicated must be coached into "nut, that Acreman was a witnesses testified kook,” persons. example, events and For before Ses- appeared when he to be drunk said identify sums is able to he Robinson must be "always this. described as Another Acreman photograph. being shown a after Even shown a acting big." photograph, Sessums is unable to name Robin- as son and must refer to him the man with no teeth. applicant’s One of own witnesses testified at the writ Sessums is alcoholic. statement, Admittedly, second Martinez’s suggest false was elicited walk-through more thor- trial, is majority upon relies after the made hearsay by called a time reference ough unsubstantiated a man and includes but, Judge unworthy by the court of belief habeas first statement not in the indicated, signif- judge and whose out-of-court statements are no there Campbell has contrary applicant’s grand jury are testi- state- the two discrepancies between icant is, any- mony. That asked if he had seen Moreover, to un- majority fails ments. day at the school on the one else have been facts that derstand that those murder, testified, else.” “Nobody is, That addi- easily are verifiable. added places significant This is since Acreman second to Martinez’s facts are added tional girl top Robinson with the at the most statement, facts for the but these leading un- stairs into the bathroom. It is during Martinez was part relate to where appli- this is at a time when refuted that For ex- the time that the event occurred. janitors togeth- cant and the four other are statement, Martinez re- ample, in first Again, accepts habeas er. if the Court Clarence, that, “Next went to look for lates findings court’s this means that rolls coming up him stairs with two found grand jury proceed- perjured himself statement, paper.” the second ings. appropriate response to The more becomes: findings concerning the habeas court’s John, Gary, “Then and I came out *15 Acreman’s statements would out-of-court through the same door as we cafeteria reject They clearly be to them. are errone- entered, and walked on down had ous. to wait hallway of the Auditorium area majority The habeas court finds and the assign- give us our next for Clarence blindly accepts janitor, that another Sam a short just waited in the hall ment. We Martinez, changed had his rendition of the up lead to the way from the stairs that walk-through. Again facts due to the restrooms room. There were two choir majority ignores the record. Martinez top stairs.... Clarence at the gave following police prior statement to gym up from the came the stairs walk-through: tissue. He started on carrying toilet “Went to work around 7:35 A.M. cafe- up toward the restroom....” the stairs put teria to table and chairs in cafeteria. statements it is obvious Comparing the two Finished cafeteria sometime between only significant difference between that the A.M., hour of 9:00A.M. and sure 9:30 loca- that in the second various the two is Clarence, Next went for when. to look easily These locations are tions are added. coming up found him stairs with two map of the school by looking at verified paper. rolls of Then saw blonde-headed of facts from in the statement contained girl go girl’s restroom. She had is true part, the most the trial. For jeans, on blue medium hair. Next we have facts that been with the additional do, asked what to he told us to Clarence The ma- to the second statement.7 added go across the street to the Vocational upon court’s jority’s reliance the habeas did, Building. and then we waited We Martinez’s statements findings regarding he came out of about 30 minutes before are, findings again, clear- wrong as these building the main and called to the short ly erroneous. get key to the man to come to build- testimony majority next attacks there, ing. Then we set chairs we Peace testified for Henry Martin Peace. this, then he came and told us finished applicant’s trials. finished, at both of the State was about that we were which implicated applicant be- testimony Peace’s 11:00 A.M. or little after.” statement, both Sessums’s Campbell opinion Judge in his Martinez’s second has included merely in- second statements from Mar- and Acreman’s the first and second statements taken tinez, easily verifiable. that are case in clude various locales Sessums and Acreman. As is the cause consistently addition, Peace appli- majority signifi- stated that In attaches cant told him to check the loft area cance to Peace’s treatment the District auditorium on three during occasions the Attorney’s complained office when Peace search Cheryl Ferguson. Fergu- Ms. Styles’s activities. Peace testified that body son’s eventually discovered Attorney’s members of the District office Peace in the majority loft area. The im- him “hallucinating” told he was the inci- plies that story Peace’s was a result of regarding Styles. majority dents Ranger Styles’s coercion of Again Peace. again fails to link the treatment of Peace to majority placed has upon its reliance any falsified or tainted evidence that af- findings again habeas courts’ fected manner whatsoever. majority’s misplaced. reliance is Applicant’s implied argument would have applicant standing this Court accord to ben- recounting the evidence that Styles alleged efit from wrongdoing wall, against forced Peace choked opinion Peace suffered and the majority him with the chain around his neck and gives approval judi- tacit to this new found out, threatened to blow his brains the ma- concept standing by cial inference when jority ignores Styles the fact that had fo- discussing Peace’s assertion that he would cused on suspect Peace as a and was not preferred one of his relatives read his attempting to influence testimony Peace’s statement back to him. Peace was not able regarding applicant’s day activities on the to read without assistance. Peace testi- murder. Peace’s bears fied: this out: “Q. [By applicant] counsel for Did the “Q. [by Judge you Are under Pickett] police you take a statement from any kind anyone of fear from shortly after the murder? intimidation? Yes, sir, they “A. did. Well, “A. only person I’m not too *16 “Q. they up And did write that state- sure Wesley Styles about be- ment? cause he my did come out to house which I’m going testify to have to They something “A. piece wrote on a of oath, under my he did come out to paper you I have. have no idea house, roughing up po- or standard what it was. procedure, lice get by but he did me “Q. you request any Did aid in the read- I shirt. don’t know whether ing of the statement? you me, shoving call it pushing me Yes, I my “A. sir. asked for sister or put however. But he did up me brother-in-law to be able to be there against every- the wall and took so he could it to read me. He said thing my pocket. kept out of He necessary. it wasn’t telling I girl.” me killed the have, “Q. you your Would trusted sister record, however, The any is devoid of at- or brother-in-law to read it correct- tempt by applicant to link the mistreatment ly you? to any of Peace to fabrication of Peace’s testi- Yes, “A. sir. mony regarding applicant. majority The “Q. you police What were told seems standing to infer that has you requested your when sister or complain
to potential about Peace’s due brother-in-law to read the state- process thereby violation and bootstrap you? ment to position himself into the same as Peace. Well, just “A. they told me it wasn’t majority The sup- does not cite one case necessary. porting proposition this nor they do show in any “Q. you you manner Did Styles whatsoever that treat- believe that would be ment of Peace you sign influenced his trial testimo- to leave if didn’t able ny way one or the other. statement? Well, police I to station with to “A. went they
“A. told me would and He sat there police officer. sign it I could leave. before paper of and piece it on a up wrote “Q. place you try And a call did me, he it back read then your sister either or brother-in- it typed he then went law? it to me they then read back they “A. wanted to me I had but told I initialed it.” again. And stay they through got there until Thereafter, testimony is with the statement. consistent Peace’s to authorities. with his statement “Q. Now, Peace, you Mr. did meet with Ranger a Texas the name Further, majority misstates Wesley Styles?” that Peace was not record when write he police station until to leave the allowed majority’s argument seems to follow signed a written Peace stated statement. along the since was not lines that Peace place he a call relatives wanted to granted request reading his assistance police told him he had to but the officers false. note the that his statement was Yet they got through with the state- stay until replicated line testi- emphasis last cry majority’s This is a from the ment. far Applicant’s if mony. counsel never asks testimony attempt repre- to color this as Applicant’s inaccurate. the statement was improper police activity. sentative hops topic counsel to a new and never court’s incom- majority’s the habeas consequences deni- broaches Peace’s plete reading case of the records pick the choice al to reader of for his state- remotely them to a result not even leads Why? ment. Because record is abun- Applicant by the has dantly supported evidence. clear that when comes he as a failed to show the harm suffered day events at school on the murder, testimony changed interplay has result of between the authori- Peace’s and, indeed, applicant is significantly applicant’s it relates to in- ties and Peace showing such harm since investigator, incapable volvement. Even Reyna Richard testified the writ to his trial who at Peace has adhered hearing, indicated that Peace remained regarding has the events at school. unwaivering in his account of the events at Last, majority points out that Peace day the school on the of the murder. “nigger was elected” was told following Peace testified to the the sec- *17 applicant suspect] perpe- as as [referring to ond trial: the of his size and trator of crime because Morris, “Q. [questions by counsel for strength. from odious apparent Aside the Now, applicant] many how state- epithet majority the of the racial nature case, you give ments did Mr. this why applicant not has failed to show would Peace? suspect prime as in this be elected given Negroid hairs found only pubic
“A. I’ve one. crime. were vaginal area of the victim “Q. only given You’ve one statement. day only at the school on the was the Black And when was that statement? Further, applicant murder. was of the Saturday got girl “A. That only janitor whose time was unaccounted killed. during period the vic- the critical after “Q. day August? 23rd On the disappeared. The victim was seen near tim Yes, “A. sir. her The soon death. before “Q. you I And know that can’t read strangulation marks around the victim’s write, you? can having with been throat were consistent No, “A. sir. I can’t. Applicant by applicant’s made belt. keys to janitors with “Q. one somebody Did make this statement po- in his statement to up you? it to the auditorium and and read lice he indicated that he was aware you twenty- look back on it now “[I]f loft area. majority, however, The twenty reasons you, vision and it’s not fair to presence that the of a racial slur in and of suppose, point don’t things out itself can applicant. exonerate There is no you have come your since concluded legal support for the majority’s proposition investigation, back, you but if don’t look that the epithet utterance of a ap- racial you think prudent it would have been the plied a suspect grounds constitutes for a thing samples to do at least take process due violation clearly when the facts janitors’ pubic other ?” hairs ... point to person being as culprit. Styles answered, you say good it’s a “[I]f majority
The process finds another idea. I’m going agree you.” due Ap- with violation because plicant’s authorities “No, failed to fol- attorney, responded, then may low leads that have been you say Styles was, inconsistent want response it.” with guilt. Again the majority say “Let’s I didn’t itdo and it wasn’t done can cite no relevant authority but has de- why done, it wasn’t I don’t know.” termined that the developed facts at the majority repeats When the answer writ hearing support this conclusion. opinion, first, ignores it the answer is Again the majority in following errs taken out of context and is only indicative habeas findings. court’s Styles of what would years do nine after investigation the initial when one of the majority writes that Ranger Texas janitors story has altered his of events and Styles maintained a appli- blind focus that second, ignores testimony by Styles that cant had committed points the murder and investigate he did not janitors the other out pubic that a Caucasian hair was found they because were able to alibi each other. near vagina.8 the victim’s majority, Certainly, that investigated others were not taking Styles’s testimony out of context they because indicated that had been from the hearing, quotes writ say- him as in each company during other’s the murder ing, say “Let’s I didn’t do it and it wasn’t was a reasonable action on investiga- done why done, it wasn’t I don’t part. tor’s The alternative would be that know,” being as responsive question janitors, all the including applicant, were why hair from janitors the other covering up killers, for the killer or compared with the pubic Caucasian such, Styles properly centered his investi- hair. The majority ignores Styles gation upon applicant, only person that, writ testified “I assure presence whose was unaccounted for dur- you, during my investigation, if it had been girl the time that the would have been anyone connected with Clarence Lee Brand- killed. ley him, or other than he would have been charged it, Styles sir.” Moreover, majority further testi- asserts that the janitors other; fied that alibied each investigated State should have the other supported by this is testimony given by janitors because blood on the victim’s *18 janitors by applicant at trial and him- type blouse was A it and could not have self, in grand jury who his testimony, indi- come from the victim because she had not cated that janitors the other would not upper been cut in the body. areas of her have had opportunity trial, to have commit- wrong. Lux, This is At Pat the chem- Upon cross-examination, ted the murders. ist who conducted the examination of the applicant’s attorney Styles: asked items sent to her the Conroe Police Further, altogether This is not majority correct. The conveniently ignores that by expert pubic samples at trial witnesses authorities had taken was that the Cauca- hair with the hair from compare Peace to vaginal found on the sian hairs found near the victim’s area majority conveniently ignores victim. The that at trial hairs, and, also "possible" pubic Neg- were unlike the applicant’s expert self-chosen testi- hairs, riod these Caucasian hairs had not been fied that the Caucasian hair found on the victim forcibly removed. favorably compare did not to those of Peace. part required the State’s Department, that ex- more is testified she did not requirements. process to due amine the on the blouse. follow- conform blood place: colloquy took the State its majority also faults for “Q. vaginal for fur- you effort failure to maintain swabs So made no at all to emphasized testing analysis. should be
determine from that blood ther It showing type absolutely that the stain what that that there is no blood [of] might were faith state have been ...? swabs discarded bad finding during made agents; no such was Okay. “A. I have gotten couldn’t finding no such the writ and enzyme from that stain. stain That by the remotely supported even record. was too weak.... Moreover, clearly indicates that the record “Q. you But could have determined analyzed, at the time that the swabs were might it have A B whether been or agents procedure state followed routine blood, type possibly, right? or 0 maintenance and examination swabs. Yes, “A. sir. Joseph Jachimczyck, County the Harris Dr. jfc n n n n n Examiner, Medical testified second trial as follows: “Q. attempt things to determine [Y]ou “Q. murder, And in the ease of a or might important as evi- homicide, committed in the course law, in a court of you? dence don’t rape, rape attempted what is Yes, “A. But these sir. items were all procedure handling for normal packaged together in one package, smears, swabs, vaginal washings, stains from the blood socks and stains, things? sort of panties. say from the It’s hard to Well, specimen “A. I we obtain if that blood stain came these from my turn them over chemist-toxi- packaged socks particu- cologist request I there....” per- lar that want examinations short, the blood on the blouse could formed, performs then he them bloody come from the other items found reports for his results to me and plastic Indeed, bag. physical all evi- completed me. our ex- Once we’ve expert dence turned over to an chosen amination, either we’ve consumed by applicant to conduct his own analysis, depending par- on the specimen, applicant’s expert and even failed to exam- or we ticular determination discard spot. ine the the majority blood What fails gotten the informa- after we’ve moreover, facts, in its relate is that the tion needed. that we during blood on the blouse was examined requested “Q. case of a Now in the Moreover, significant the trial. it is county, autopsy from another do the majority opinion fails to in its include perform you normally just the au- rendition of the facts that Peace’s blood topsy, then turn over some inspected comparison. was taken and authority from that officer or other janitors (who That from the other blood swabs, vaginal county, those wash- along grand jury in his testi- ings, etc.? mony, during other had alibied each No, procedure is handle time) “A. the usual critical was not taken for examination eases, my anyone of own again part action on it like I do a reasonable *19 requested by absolutely except specifically if investigators. of There is no I agency. pro- Then will process investigators that another requirement due samples vide them with whatever beyond any exclude reasonable other doubt have. If for they like to possible suspects. suspects Here the other would sample they a of they example, want were eliminated the State because sample blood, give them a I’ll company nothing were other’s in each — they things If want blood. to have their to store those for more than independent smears, thirty days? own I’ll make those I’ll give available. them a set Yes, “A. sir. smears, but we do our own in “Q. you you And this case made no— our lab. We don’t send them off try type didn’t blood of those anywhere. samples found? you semen that “Q. Well, pick people up do sam- those No, “A. sir. ples frequently and send them off “Q. possibly Would that have been use- lab, Depart- to another such as the excluding ful in individuals? certain Safety ment of Public lab? secretors, they probably “A. If were No, “A. sir. all frequently. Not at No. yes. they secretors, If are not probably no. “Q. they But do sometimes?
“Q. “A. n Now, purpose or washings, attacker? — attacker? Yes, are those occasion etc.—do helping to use in identifying vaginal is done. identify have swabs, any “Q. (cid:127)t of those tests were run with ings But is it [*] vaginal vaginal washings your [*] swabs or stain wash- n *. that none in this regard
case? They may. “A. There’s a limited use I do “A. did not that. That is correct. identifying
for them. Not so much “Q. Doctor, you any did store of those attacker, excluding but rather solutions, containing any for semen suspect. time, period your knowledge? “Q. Because—isn’t it a fact that No, I “A. sir. have been informed running liquids the ex- those my that request staff was made —or liquids amination during of those could sometime the middle or lat- case ter any you part autopsy,
never than can of the week of being Sunday, imagine any per- autopsy and at identify single one time, that there no swabs person son as the that did it? There blood available. avail- my knowledge. “A. Not to able, which was over to turned “Q. identify it can a segment But of the Department Safety of Public lab. population that could have done it “Q. Doctor, you’ll probably recall a con- segment and exclude another me, versation with I when called population, could not have regard possibility it. done samples you might have such avail- “A. That is correct. you able. that? Do remember “Q. instance, you For I believe deter- that, you “A. re- remember now your testing Cheryl mined in We did have mind me. it at Fergeson A-type blood? that time. Yes, “A. sir. “Q. Right. up That was sometime “Q. you any And didn’t do test- further second first or week October try blood to determine the got your autopsy report. after we type of the donor of Yes, “A. sir. you liquids or semen that found “Q. you you believe stated that body? the area girl’s of the little any event, wouldn’t have them in No, “A. sir. longer because it had been than thirty days? “Q. And is it my understanding that you keep some of these days gener- right. Thirty “A. That’s thirty days then ally throw them a maximum that we would out, you normally kept because don’t room have them. *20 your lab that “Q. up not set Well, Doctor, enough You’re “Q. you did have particular tests? run those you can washings of stain from area, groin any washings or No, sir. “A. vaginal to swabs from the area say Well, correct to “Q. so would gone to have further and tried enough, but had you might have type liquids and run blood those all up set to run you’re just not PGM, esterase, any of ABO or or them? other tests? those not have I did “A. Both are correct. No, “A. We did not. sir. fluid, up I not set enough and was “Q. enough? You didn’t have run them either.
“A. No. Well, “Q. were— So, “Q. you enough didn’t even have specimens, if I had the “A. —But even type it?
blood There run them. we couldn’t enough fluid there. wasn't right. “A. That’s requests made for those “Q. any Were “Q. samples that you What did use the from the lab— fluids you you had for? do with What did them? say—I “A. As autopsy? phosphatase “Q. “A. Ran the acid reaction. the time of the —at autop- “Q. —No, Was that— “A. not at the time of whatever was sy. I turned over “A. And then were discarded. autop- requested at the time of the Well, “Q. you samples mean the were sy, and I’ve indicated here what discarded, you enough but did have those items were. proceed attempt further and “Q. Monty Captain Koerner Was type blood the semen? present during autopsy? No, “A. not at the time we had the Yes, “A. sir. smears. These were smears. “Q. for the Is he chief of detectives They liquid. actually were not Department? Conroe Police They just were a smear. The smears and the swabs. The wet title, specific his but “A. don’t know washings swabs and the that we De- he is with the Police Conroe utilized we that. That was partment. during process consumed “Q. request he those items from Did checking phosphatase. for the acid you you gave him? “Q. you Do use a saline solution to Yes, “A. sir. wash the stain? you “Q. requested the items that He Right. “A. him, gave particles such as the “Q. way you And there was no hair and those other dirt and gone any things?
could have further and run tests? Yes, “A. sir. it, Of, up
“A. if were set to do we we “Q. you any conversation with Did have, feel the could but we didn’t regard or not him with to whether need for it at the time. type going try to blood you were Well, “Q. run those you up samples if set sor- were the semen —I’m ry, sub-group I don’t believe I understand. tests? it, recall, him we up “A. If set I’ve since but I told we were “A. don’t proce- Department going learned that to do our usual dure, namely phosphatase acid Safety is set to do this Public microscopic prepara- sub-testing you’re de- slide kind of scribing. tions.
“Q. Well, quantitatively, always possible. how of “A. depends much It’s It on of
the seminal the concentration the fluid itself. you solution do need in depends And it on the amount of order to run phosphatase the acid of enzymes and the heaviness test? smear, per- and the —whether “A. About a CC. son a or not. There are is secretor “Q. CC, Okay. About a but that is a but, a number of as variables that — solution, very dilute isn’t it? yes, possible, far is it I would as Right. “A. possible. say would “Q. And making washings on the “Q. you So don’t know whether there area, groin liquid how much or so- on enough was or there wasn’t you
lution did end with follow- swab to run those blood tests? ing washing? “A. The dry swah looked awful me. say.” “A. all I don’t That’s can exactly remember how much, much, but not too because Jachimczyk’s Dr. testimony on direct ex- we didn’t want to dilute stain that amination at the writ is follows: any further than what was neces- “Q. right. autopsy Cheryl All In the of sary to do the test. Fergeson, you did obtain what is “Q. Now, you I believe said commonly referred to cotton as a you vaginal took a from swab vagina swab area? area? Yes, “A. sir. Yes, “A. sir. “Q. purpose And the of that what? is “Q. Is that a wet cotton swab? Well, “A. purpose obtaining Well, started, “A. cotton swabs dry it was check for the when we presence sperma- or of any absence moist, got
and it became when we presence tozoa or if the or absence specimen. any seminal fluid the form of “Q. Okay. you And then made a smear enzyme, phosphatase the acid on a slide? component which was a of seminal “A. We made two —two each smears fluid. mouth, vagina, from the rec- and “Q. case, particular In this where it was microscopic tum and slides suppose reported you suspi- a stained those to demonstrate the murder, rape you cion of and presence spermato- absence looking spermato- for evidence of zoa. zoa or semen? “Q. Okay. upon vaginal taking And Well, injury “A. in view of the that I microscopic making swabs course, I body, saw on the slides, you could have taken the suspicious being compo- of rape semen or fluid was left in the death; particular nent in this there- cotton swab made solution fore, my customary I did examina- it and some run tests? tion. I suppose “A. have been could doctor, “Q. you sperma- And when find
done. spermatozoa tozoa or evidence of vagina, or semen is it collect- “Q. But that was not done this case? ed on a cotton swab? No, “A. sir. Yes, “A. sir. “Q. Well, possible is it have there would “Q. you Did do that in this case? enough upon taking been the swab “A. Yes. washing out mak- the swab you “Q. the solution that could you spermatozoa Did collect and se- swab? typed blood it? men on cotton *22 you Well, retains agency that actually “A. I ment or collected the— going to be tests are decide what “Q. Fluid? you have? any that evidence run “A. Not really. any There wasn’t fluid Well, manner “A. in far as cause and so smear, just as such. took a We concerned, my deci- it is of death literally, portions those of necessary any and all sion. I do body, is, vagina, that the rec- cause the exact to determine tests tum and the also mouth we death. In so far manner of washing took a of a stain that was evidence, ad- any where it concerns present groin. in the left police investigation, I do ditional “Q. Now, right. you preserve All do the shots. not call or, back, you take it do know in this “Q. by, done then That would be you personally gave whether or not case, Monty Koer- particular either Koer- cotton swabs Detective Depart- the Conroe Police ner or ner? Styles the Texas Wesley ment or precisely “A. don’t remember whether Rangers? I did or I not. did Well, say for whether “A. I can’t sure memo, “Q. And is any there written case, gener- particular in this but you your have see searched file to al, way done. that’s it’s if memo any there’s written or such now, Doctor, “Q. cot- you have Do say hap- that actually would what ton swabs? pened to the cotton swabs? No, “A. sir. No, “A. sir. “Q. your have searched file You
“Q. Now, Monty a week after about relatively they do certain that are your Koerner office was for the exist, your at least in office? not autopsy, you contacted Wesley Mr. don’t exist. Styles? positive “A. I’m “A. I don’t remember that was.
“Q. you any present Do have recollec- Speers: Mr. Cross-Examination tion of or not the whether cotton “Q. Jachimczyk, your does office Dr. given Monty swabs were to either you refer- let me ask at least Wesley Styles? Koerner or your procedures ence to back time, no, “A. I do not recall at this sir. autopsy August of 1980 when this your per- performed, did office was “Q. you Do recollection or routine for that form as a course or that written memorandum would grouping any time blood matter at say destroyed you that the cotton analysis of seminal fluid? swabs? No, No, “A. sir. “A. sir. you’ve “Q. Normally, in that situation if
“Q. possible Jachimczyk, Dr. is it by cotton to recover some your understanding of the been able heart medicine, though you that de- or whatever method forensic can swab D.P.S. type submitted to the termine the blood of the donor would be Laboratory or to someone like spermatozoa or semen if that investigat- agency that person by the is a secreter? case? ing the If he and if “A. is a secreter there’s Well, examine, not in that enough “A. we were involved material there We a blood yes, time. did do that can be done. blood, on the group on the but shots, “Q. Now, who calls the Doctor? themselves.” swabs you you’re go- test Do decide what that, no. attempting police depart- We were not even run or does “Q. The purpose your “Q. whole either you, And after swabs were taking test, taking swabs and acid perform used to washings, just all that tests, phosphatase you shucked
determine whether or not there was you com- them in the trash when spermatozoa either you could test; right? pleted that is that microscope not, see under the or if immediately. “A. discard Not We *23 seminal fluid as revealed keep we them six them—Now presence phosphatase; of acid is months, time, kept but at that we that correct? average them on the a month Yes, “A. sir. or less. “Q. you So whatever tests per- did not “Q. you So in terms of would used form in the first instance for the up all the swabs that were taken purpose subsequent testing performing phosphatase the acid up come group with blood test or other tests? donor, wouldn’t it? Well, “A. Yes. the swabs would still correct, “A. That is yes, sir. phosphatase remain but the acid “Q. it, As I just understand to make it longer would no demonstrable be clear, as to the swabs because whatever was there will by you your taken or under di- have been in a sense consumed dur- rection autopsy, at the time of process testing, you bottom line is any don’t have reaction, chemical in other words. happened idea what to those. Is “Q. guess I question, the bottom line you correct? Or do have some don’t know the answer to this what happened idea what to them even- is, you but would the swabs that tually? any point you took and at after “A. The ones that we did our exami- performed test, would nation on were discarded. any your have been use to Honor, “Mr. going DeGeurin: Your I’m knowledge anybody in making all, object. to have to First of make further studies as to the blood sure hearsay this is not from at this group analysis of the donor of the time, and ask that the answer be sperm? stricken until it’s demonstrated it’s not No, No, “A. sir. sir.” hearsay. from n n : n n : n n Rephrase your question,
“The Court: Speers.
Mr. Redirect Examination Mr. DeGeurin: Doctor, “Q. you “Q. understand when (By Speers) Mr. Obviously you you make take the understand, cotton swab used—As I there were a— done, things piece glass and rub it across a two there was some taken, swabs also tak- a slide to make a smear and from some smears slides; microscope determine, en on you you is that cor- that smear rect? treat it and determine if there’s spermatozoa sperm? or Or semen? “A. The microscope pre- slides were pared from the same swabs. got “A. No. The slide has first to be stained and whatever cells are on “Q. Okay. the slide take this stain and then pre- “A. And then first slides were we can look for and do look for the pared, literally smeared on a slide presence or absence of stained and then the residue treated is spermatozoa. pres- a chemical and tested for the “Q. actually through phospha- you But see it ence or absence of acid and, microscope, identify it? tase reaction. correct that is left on left or substance Oh, You can’t see that with yes. “A. washings through swab cotton no, for sure. eye, the naked that’s can ob- necessary, you whatever you had “Q. with the cotton swab Now something from which with tain stain, that cotton used to smear the type of the blood methods proper kept months and swab is now six spermatozoa or of that the donor time; is period then back semen, you can determine blood that correct? person was a secreter? type if that Yes, “A. sir. sir, Yes, providing that it was “A. “Q. would And it’s on that cotton swab re- chemical subjected to other traces, not, of actual would action. by the fluid of some sort donated swab, Now, you did stick “Q. the cotton Cheryl Ferge- person raped who reac- *24 kind of chemical it in some son? Isn’t that correct? tion? I didn’t by again, me sir. “A. Run that “A. Yes. question. your understand “Q. many cotton swabs were How “Q. that comes from The cotton swab there? Fergeson, the cavity Cheryl the they do “A. I don’t understand —how person you autopsy did the on? is a color reaction. There work? yes. Right, “A. “Q. many there? How swab, “Q. you that rub You take cotton Of, there are two. “A. piece glass for the it across the you’re performing test to determine them “Q. you personally throw Did spermatozoa if or semen? there is away? both Well, spermatozoa, you “A. can’t tell Now, just moment. No. “A. wait only if point, you
semen on that at that talk- now are No. From where mouth, sperm the are there not. had one from the ing? We vagina one from the one from that, “Q. you you Then after have done rectum, had three. so we the swab, you do still have cotton not? of those “Q. right. And all three All missing? are cotton swabs Right. “A. those, they’re no yes, “A. All three of “Q. on that cotton swab is fluid And available, that’s true.” longer by the attacker? donated Thus, discarded after the swabs were Right. “A. per the upon them analysis was conducted Now, art, you “Q. present in the are that time. at the lab at utilized standards cotton aware of that from those in- upon testimony majority’s reliance The swabs, refrigeration even without present procedure, uti- dicating that drawer, then left in a file cabinet authorities, is to investigating by lized later, can years a DNA molecule swabs, misplaced. What is maintain the identify like a fin- and can obtained today a world procedure is current —in actually person gerprint who technological advances forensic where rape? did the commonplace immaterial. science are —is Well, accuracy “A. I’m not sure addition, is in the record nowhere you point that out. Jachimczyck Dr. as imputed to bad faith process? “Q. you heard about Have he fol- laboratory guidelines result that got I the Court order “A. Not until autopsy. Ferguson the time of the lowed at requested. you judges the wrong when it majority is The today’s under procedures aware, you, year nine old aren’t “Q. you And are Doctor, fluid that is standards. that from the argument most tenuous High advanced and so I Conroe School Start- majority regarding watching that the State’s ed it. And all of a sud- investigate
failure to Cheryl they a lead den showed a showed— Supposedly, Bradford. guy Bradford saw on the with two television kind of men rushing through it’s, gym around hair. I if if I dark don’t know time of the murder. recognized She told this to which I guy, her doubt I coach who in turn told the Conroe I never Police did because like saw the Department.9 majority on, guy way faults the face I back then but investigate State for failure its me recognizing further. don’t know if it was The majority considerably. errs just thought every- The Con- him or questioned girl roe Police every participat- again thing just that me—I made volleyball along got tournament sleep with chills all over. I couldn’t person coaches and staff. No night day, other I so the next had verified interviewed Bradford’s statement. called one of the I other coaches An officer Depart- Conroe Police every- worked with. I told her had ment, who interviewed each of thing. day So the next called girls school, them, at at know, testified trial that you Conroe. I told gym quite time “the full” and had—I was there when it happened attendance were men as well just made me call *25 boys. Thus, majority the again. would have the them interviewed that she area Certainly, this is an ment on ment police investigate an unsubstantiated state- where made the by only police majority’s had seen several men. unreasonable one saw two men part. several require- people “A. Yes. “Q. [*] investigator Then did General’s Office? [*] you [*] form the this statement to an [*] [*] Attorneys [*] “Q. Attorney] [By State’s Mrs. Brad- majority
The finds Bradford’s statement ford, clear, just fact, to make it significant because, to be according to the you person can’t tell us that the majority, Bradford “chills” suffered when you people that saw one she picture saw a televised of James Robin- you apparently that saw inside the majority taking son. The is Bradford’s person gymnasium was the whose statement out of context and the habeas you picture saw on 60 ? Minutes majority completely court and the miss the point. Bradford, mark on this at the writ No, “A. I can’t.” hearing, testified: Absolutely no basis exists the for inference “Q. Now, [by Speers] you Mr. when got that Bradford the because “chills” she Minutes, watching 60 was recognized Robinson from televised anything you there saw on 60 Min- photograph. requirement The majority’s that you utes caused to make police investigate that officers Brad- phone call to the authorities? completely ford’s further statement is un- Well, lone is “A. at reasonable—the statement not sitting was home that
afternoon, by other at watching 60 unsubstantiated witnesses Minutes scene, probative I was little value in probably grading papers and incul- know, doing pating or I something, don’t and is of no value excul- Robinson anyway, really pating Campbell pay- applicant. Judge aptly we wasn’t As they concludes, persons may impli- attention to it and that other said way Brandley disproves cated in murder in Clarence said no case, investigators applicant's 9. There was no evidence at introduced the writ concerned with hearing police actually prosecutor writ received this testified at the relayed and that information it was to those he was of Bradford’s statements. unaware no hearing leads me to present applicant’s guilt.10 ing, and the findings are than conclusion other majority finally Styles faults for his tie Court’s To this clearly erroneous. by failure to investigate a statement made deny jurisdic- our Constitutional hands and Acreman, Acreman to he Peace that after uphold erroneous by requiring us tion school, came from the stated that is to return a court findings of habeas “having good looking girl.” was fun with a trial courts could “good days” ole when Notwithstanding impli- that this statement authority of this legitimately thwart applicant, majority suggests cates Briggs, ex rel. Wilson v. Court. See State possibly it could story be a created (Tex.Cr.App.1961). 351 S.W.2d falsely implicate Acreman investigation away direct from above, thus forth set For all reasons majority someone else. Thus the desires dissent. Styles, hear- who testified the writ
ing that he
statement
did
believe the
CAMPBELL, J., joins this dissent.
Peace,
prov-
when told
should
unworthy
en to himself that it was
of be-
CAMPBELL, Judge, dissenting.
Again
majority ignores
lief.
corpus filed
This is a writ of habeas
hearing, Styles
record. At
testi-
the writ
Applicant
pursuant
to 11.07 V.A.C.C.P.
spent
great
fied that he
time on
deal of
mur-
capital
tried for and convicted
investigation
of this
and that he
case
This
der. He was sentenced
death.
attempted
possibilities.
to eliminate other
application
filed and set to exam-
writ
majority
Either the
can
or disbe-
believe
(1)
ine three of
seven claims:
testimony,
requiring Styles
lieve this
but
“Petitioner was denied fundamen-
Whether
disprove Acreman’s
statement was
delib-
by the
process
of law
tal fairness
due
erate falsehood created to
cover
having
poten-
fact that critical evidence
by actually finding
someone else
that other
*26
prove
applicant
the
is innocent
tial to
person
impossible requirement
is an
when
in
destroyed
the exclu-
was lost
while
possibilities.
there are no other
State;” (2)
possession of the
Whether
sive
Finally, as
reply
a matter of
to the con
procedures uti-
pretrial investigative
“The
herein,
curring opinion
agree
filed
I
impermissibly
by the State were so
lized
paid
findings
due deference must be
to the
that it created
suggestive
the
by
of fact and conclusions of
the
law made
to manufacture
false
calculated
habeas court. But such has never been an
against
appli-
the
circumstantial evidence
See, e.g.,
parte Young,
absolute rule.
Ex
rights
in violation
his constitutional
cant
(Tex.Cr.App.1972),
present on the cotton Scientific swabs. spermatozoa; donor of the no exist record analysis of the substances on the swabs or by samples as to when whom the were proven could have innocence destroyed; the swabs were not available Petitioner. The cotton were ei- swabs shortly appli- after murder and before ther intentionally or de- negligently trial; critical cant’s first such swabs have stroyed by the State while in exclu- value; evidentiary possible it is deter- possession They sive of the State. type genetic charac- mine blood and other destroyed before the Petitioner’s attor- sample; sperm teristics of donor from a *27 ney had opportunity an to have them rape such test can be used to exclude some analyzed. is, 1980, suspects; it and inwas standard 2.) THE PUBIC HAIRS procedure preserve samples; such justification there valid is no scientific for pubic A reddish brown Caucasian [sic] samples. regard the of such destruction In body hair another brown hair of samples, judge to the hair the probable origin Caucasian [sic] four found that hairs were found near found near the vagina. victim’s Scien- vagina, and one hair Cauca- victim’s was a analysis performed tific by the Texas pubic hair that to the belong sian did not Department of Crime Safety Public Lab- boyfriend.1 her victim or oratory established that two hairs these were neither the nor the Petitioner’s vic- for In order the destruction of evidence tim’s. Sometime possession after the conclusion of of the State to rise hearing judge findings point, grant- The also made concern- been raised this would not merit ing applicant ing relief. the State’s failure to and hair take blood samples possible suspects by from other and the meant that the If the court statement po- Clause is presence type Due Process violated when A cloth- blood on the victim’s tool, investigatory particular to use a lice fail ing. findings applicant’s These do not bear on strongly disagree. The here [sex- we situation allegation plead application as his writ of prosecution is no different than a assault] ual for drunk corpus. allegations, habeas Such if driving police observa- that rests on
915
essentially con-
violation,
level of
by applicant
Process
a defen
denee” offered
Due
and recantations
dant must
sists of recantations
show that
the destruction was
testi-
who
prior recantations of witnesses
product
part
of bad faith on the
—
Thus, a
previous trials.
applicant’s
fied at
State. Arizona v. Youngblood,
U.S.
concerning
arises
question
threshold
-,
333, 337,
109 S.Ct.
reflect federal practice. habeas prov- How these two doctrines and what must be ever, Court, this opinion a them; unanimous en in order Uo obtain relief under just years decided ago, six then, case, elected to follow facts of this will discuss the the federal courts in this area. See Ex majority opinion as both stated parte Binder, 660 S.W.2d (Tex.Cr.App. 108 record, appearing why and show 1983). parte Binder, supra, Ex this proper. relief is not Court held: claim, In order Brady to sustain a a “The basic principle of the state and fed- defendant must show eral cases examined, heretofore would suppressed exculpatory, evidence was but appear to be that the raising mere of a it was material in a constitutional claim of newly is, discovered evidence 87, sense. 373 Brady, U.S. at 83 S.Ct. at alone, standing not a subject fit for the Supreme 1196-97. The Court has exam- exercise of state or federal habeas cor- materiality requirement ined the Brady pus powers. on several occasions. In v. United States
Agurs,
97,
2392,
427 U.S.
96 S.Ct.
49
Applicant
(1976),
obviously
pursue
Supreme
L.Ed.2d 342
any
free to
Court dis-
remedies the
materiality requirement.
state
cussed this
executive branch has
[my emphasis]
offer.”
660 S.W.2d at
Appeals
appears
Court of
to have
prosecutor
assumed that the
has a consti-
obligation
tutional
to disclose
infor-
Further,
Court,
parte
Ex
Ban
might
jury’s
mation that
affect the
ver-
spach,
3,
130 Tex.Crim.
917
defendant, and
identified the
positively
would have been different. A “reason- She
Court,
challenged
Supreme
he
probability”
probability
able
the
is a
suffi- before
an
being
product
as
the
of
cient to undermine
in the out-
the identification
confidence
unconstitutionally suggestive procedure.
come.
The
fense
trial
the
cutor’s
the defense not been misled
circumstances and
possibility
occurred in
difficulty
[*]
reviewing
proceeding
incomplete response.
the trial
[*]
that such effect
light
court[3
reconstructing
[*]
the course that the de
would have taken had
]
[*]
should assess the
an
totality
awareness of
by
might
[*]
the
in a
prose
post-
[*]
The Court stated:
part
gestive and conducive
due
We turn now
claim that ...
petitioner ...
taken identification
ed
showing suspects
purpose
process
of a
this case was
lineup,
of law....
is entitled to relief
the confrontation conduct-
to the
identification,
has been
singly
so
that he was denied
to
unnecessarily sug-
question
irreparable
The
persons widely
practice of
and not as
whether
on his
mis-
con-
682-83,
Bagley,
cedure was The first set of statements and statements. caused each witness himself. The improperly several witnesses to al- were written product the Second, set of statements were testimony. they ter their second discuss by Ranger of an interview with the witness Ranger Style’s Henry intimidation of Styles. It is reasonable to that the believe third, discgss Peace. they Cheryl And prodding Ranger Styles of would increase police Bradford’s statement the that she com- the detail of each statement without walking through seen two white men any promising integrity the of witness’s gym approximate the at the time of the addition, of he account what observed. killing. I any do not believe these tracing steps the mere act of one’s three occurrences rise to the of consti- level throughout day likely produce the would infirmity necessary tutional to warrant re- greater pressure detail even without lief. of the conform one’s account with those Assuming, arguendo, length other witnesses. The additional judge’s findings of fact are correct6 and the does statements not establish majority that the is correct that the walk- walk-through any testimony altered in an through improperly was conducted in an improper manner. manner, suggestive the record does not walk-through, Before the John Sessum support a conclusion that the effect of the gave following written statement: walk-through constitutionally material. A.M., I come to the school about 8:00 janitors Three of five duty day on Gary rode to work with in his Datsun through joint of the murder went walk- Pickup, orange and white color. We through Ranger Styles school with park in building. front of the vocational Acreman, August Gary 1980: Sam building, We walked over to the main Martinez, and John Sessum.7 Each of doors were all locked and we waited for gave these three men written statements Clarence. We waited about or 15 walk-through. before and after the Com- up minutes. Sammie came [Martinez] parison pre-walk-through statements got waiting. after we there and was also given with the statements after the walk- Clarence came down the sidewalk and through changes reveals that opened There was the door. another very witnesses’ accounts are minor. subject [Henry Eckie a short Peace] thing The first that one notices when stocky guy, up he also came about the comparing any pre post walk- (5) All same time as we did. five of us through statements is that the statements then went to the cafeteria and Clarence are, walk-through taken after the without up showed us where to set the tables and exception, longer and more detailed than chairs. It took about a hour and a half walk-through. those taken before the This to set the chairs. When we finished fact does not establish that the walk- we walked out the hall to the front through building. 10 or min- somehow tainted the witnesses’ We waited
investigation was conducted with a blind focus.
for constitutional error. This discussion of “lost
disagree
position.
with this
simply
herring.
leads" is
a red
Clearly,
necessity
there is no constitutional
hearing judge
specific
6. The
did not make
specific
possible
exhaust
leads or to conduct
-
-,
materiality
finding concerning
Youngblood,
al-
scientific tests.
U.S.
leged
graph test. He also said that as far
paper
paper.
rolls of toilet
or towel
knew,
passed
he
he
it.
girl go
Clarence also
Then saw blonde-headed
to the
said “If
question
the officers
any-
me
girl’s
jeans,
restroom. She had on blue
it,
more
I’m going
get
about
me a
medium hair. Next we asked Clarence
lawyer.” I have noticed that since Satur-
do,
go
what to
he told us to
across the
day,
August
Clarence has been
Building.
street
to the Vocational
We
acting nervous.
I have not worked un-
did, and then we waited about 30 minutes
day,
der him since that
but I have seen
before he
building
came out the mail
night
him. Clarence
supervi-
is the
shift
called to
get
the short man to come to
sor,
only
and is the
one of the crew who
key
building.
to the
Then we set the
key
has
to the doors.
Phillips
R.L.
there,
this,
chairs
we finished
then he
day
supervisor,
shift
and is the
finished,
came and told us that we were
one of
key
that crew who
has
which was about 11:00 A.M. or little af-
passim].
doors
*34
[sic
in passim].
ter [sic
Each difference between Acreman’s first
statement,
In his second
Martinez said:
and second
merely
statements is
the inclu-
23, 1980,
Saturday, August
On
I arrived
sion of an
present
additional fact not
by job
High
at the Conroe
School
first
explained above,
statement. As
such
there,
got
around 7:30 A.M. When I
additions are not
improper
indicative of
in-
Gary,
Henry
already
John and
were
wait-
fluence and do not call
accuracy
ing. We
Brandley
waited for Clarence
testimony
question.10
Acreman’s
into
supervisor
because he is the
and is the
simply
record
support
does not
an infer-
only one
key
of us who has a
to the door.
ence
testimony
that Acreman’s
or state-
got
Clarence
there around 7:30 A.M. He
changed
ments were
in
way as a result
unlocked the door on the north side of
And,
walk-through.
even if one does
High
Conroe
School and
allwe went in.
walk-through
believe that the
tainted Acre-
me, John,
Gary
Clarence took
and
extent,
testimony
man’s
to some
it is abso-
cafeteria,
go
and
Henry
told
buff the
lutely unreasonable to believe that
Lounge.
floor in the Teachers’
Clarence
walk-through
in
“conducted
this case was
unlocked the door to the cafeteria and
unnecessarily
so
suggestive and conducive
put
told us to
and
tables
chairs back
irreparable
mistaken identification” or
in there. Then he unlocked the side door
Stovall,
testimony.
Went to work around 7:35 door as we had A.M. cafete- put ria to walked on the hallway table and chairs in cafeteria. down of the Audi- Finished in give cafeteria sometime torium area to for between wait Clarence to A.M., hour of 9:00 A.M. and assignment. 9:30 not sure us our next We waited Clarence, when. Next went to look just way for the hall a short from the stairs coming up found him up stairs with two that lead to the choir room. There 10. Like Sessum, subsequently walk-through Acreman has is the source of these conflict- changed story recanted, his about what occurred on the statements. When Acreman first day of the murder. On change March 17 and he attributed the difference to a of heart brought Acreman said that he saw Dexter Robinson at about his conscience. When he re- day recantation, grabbed the school that and that Robinson canted this he attributed the differ- Ferguson story part appli- and took her into the bathroom. ent to intimidation on the time, again changed investigators. Since that has accuracy Acreman his cant’s While the doubt, things hap- version of events and claims that Acreman’s is in serious pened previously in the manner that he had doubts do not arise as a result of the walk- Nothing suggests testified. through. in the record They are also top gave gloves two restrooms at the to him. John gloves. stairs. The ladies’ Then gray type restroom is the one canvas work stairs, nearest got dolly and the other is from the Vocational one Clarence for men. We had standing Building Henry been and he and went back there for a building few minutes across the when saw a over to the other girl going up the through stairs toward the rest- street and inside went back female, rooms. young pas- She was a white north door and I went home [sic with length shoulder blonde hair. She sim]. wearing jeans blue and a wide leath- The two statements of Sam Martinez are er belt cowboy looked like a belt Sessum, essentially identical to those of type carving, maybe some a name exception with the that Martinez did not on the up back. She went on the stairs change his estimate of the time waited and went into the ladies’ restroom. Clar- building keys. at the vocational up ence came gym stairs from the only difference the two state- between carrying some toilet tissue. He ments, other than inclusion of additional started on the stairs toward the rest- details, order which Gary room and hollered out himto Ferguson arrived at the Again, bathroom. girl there was a in the restroom. Clar- this is a minor difference and does no dam- ence going said he wasn’t in the rest- age to the upon by essential evidence relied room go and for us to on over to the Nothing suggests State. *35 Building Vocational and he would be walk-through “irreparable” lead to an in- over in a little while. We started walk- fluence on testimony, Martinez’s re- as ing on over to the Building Vocational Stovall, quired by 301-02, 388 U.S. at Henry and had finished in the Teachers’ S.Ct. at 1972-73.11 Lounge, joined and he up with us. We While there are almost insurmountable building left the through the same door credibility problems testimony with the on the north side and went across the Sessum, Acreman and might which turn street Building Vocational and implicate testimony, Martinez’s these credi-
waited for Clarence to come unlock the
bility problems do not stem from the walk-
door. We waited for approximately for-
this,
through. Because of
applicant should
ty
forty-five (40-45)
to
minutes for Clar-
granted
not be
relief based on the walk-
ence to come unlock the door. Sometime
through.
A.M.,
after 10:30
Clarence came out of
building
the
the
on
north side and walked
The second factual occurrence that
toward the
Building
Vocational
majority
grant
for a
Henry
uses to
relief
is
way,
short
and then
Henry
called
to
hearing
Peace’s
at the
that he
get
key.
come
Clarence turned
physically
was intimidated and
abused
around and went
building
back into the
Ranger Styles. Peace’s first statement
to
through the north
Henry
side.
police,
unlocked
Ranger Styles
taken before
ar-
the door and we set
the vocational
rived in Conroe and the walk-through was
building for a
meeting
conducted,
custodial
on Mon-
is consistent with a statement
day, August
given
We finished the
later
Ranger Styles
to
and his testi-
building around
mony
11:30 A.M. and Clarence
at both trials
hearing.
and the writ
building
fact,
came
and checked the
and
hearing
Peace testified at the
told us we could to home. We
telling
started to
he is now
the truth
what he
about
leave and Clarence told John that
saw at the
day
school
of the murder
gloves he had
early
morning
found
and that he has told that
story
same
his,
every
that he wanted them.
given
every
statement he has
and on
majority,
any
11. As noted
corrupting
Martinez has since
were related to
influence of the
changed
testimony.
certain details in his
Noth-
walk-through.
suggests
changes
in the record
that these
Dictionary
Law
Black’s
Thus,
guilt.
applicant’s
is
if Peace
occasion he has testified.
believed,
following
has
definitions:
hearing judge
provides
to
tion
decided to
leged
tics did not
ny. Because of Peace’s
is not
constitutional defect
do,
constitutionally
produce
then
Style’s
unreliable
testimony,
material and en-
intimidating tac-
in the
investiga-
testimo-
this al-
Exculpatory.
ing.
clear
[*]
from
[*]
alleged
Clearing or
#
fault or
sfc
guilt;
[*]
tending
excus-
[*]
to
applicant
titles
to no relief.12
Exculpatory
A
statement.
statement
or
justify,
tends to
excuse
clear
which
by the ma
upon
The final incident relied
guilt.
alleged fault or
the defendant
from
Cheryl
jority
given by
concerns
statement
that she
men
Bradford
observed two
these
Testimony
presence
two
As
gym near
the time
the murder.
gym
justify
neither
tends
men at
above,
grant
relief
stated
nor
is
inconsistent
actions
allegation13
require us
based on this
would
partici-
guilt.
if the two men
with his
Even
excul
to find that
Bradford’s statement
crime, something
pated
which
material. Bra
patory,
applicant,
and is
testify,
does not
cannot
all
Bradford
dy, 373 U.S.
at
at 1196-97.
83 S.Ct.
placed applicant
still
at
scene
evidence
crime; applicant
was still the
First,
begin by noting
that Bradford’s
might
male at
school who
black
exculpatory.
statement
is not
Proof
Cheryl
the donor
the hairs on
Fer-
appli-
been
one
more
than
individuals other
separated
guson’s body;
was still
participated in
of this
cant
the commission
janitors
time
possibility
the other
at
offense would
exclude the
from
matter,
appli-
been
12. As a collateral
not raised in
coercion. Peace said he had not
threat-
writ,
however,
trial,
suggests
majority
any way.
the State
cant’s
knowingly
ened in
Peace
Prior
perjured testimony when Peace
Attorney’s
used
complained to
office
the District
trial,
note that the
testified
Styles
abusing
threatening
physically
about
judge
perjured
trial.
found that Peace
himself at
Thus,
ques-
when
answered these
him.
tions,
Peace
*36
a
the
to reverse
because of
In order
conviction
I
that this
he lied.
do not feel
incident
perjured testimony,
must
the defendant
use of
knowing
perjured
the
used of
testi-
constitutes
perjured testimony
the
establish that
mony.
Attorney’s position has
The District
con-
by representatives
such
of the
“known to be
sistently
are
been that Peace's accusations
false.
269,
Illinois,
264,
Napue v.
U.S.
79
State.”
360
Peace,
Ranger Styles
threatened
denies that he
1173, 1177,
(1959); Agurs,
S.Ct.
925 (cid:127) auditorium; victim, a body Cheryl Fergeson, was placed victim’s in the 2. The and, ap- girl. there would still be year evidence 16 white old plicant knew the victim’s location of the Ekland-Olson, testi- 3. Dr. Sheldon body before was found Peace. Brad- evidentiary hearing as fied at ford’s man testimony ominous that the she expert Dr. Ekland-Olson is witness. gym might saw in the have Dexter been faculty University at the of Tex- member does help applicant Robinson not because de- He holds a doctorate as at Austin. possi- did not learn State of Robinson’s gree Sociology and also attended Yale years ble involvement until after Law School. reasons, was convicted. For these I do not Dr. re- Ekland-Olson conducted a believe Bradford’s was ex- statement analyzed project appli- search which culpatory. penalty death cation of the in Texas dur- addition, exculpatory, even if Brad- 1974-83, years the first decade ford’s was not material. In or- penalty Texas death the “new” statute. material, der to majority have would penalty death Unlike the statutes oth- probabil- to find there is a “reasonable Georgia, er states such as Florida and that, ity had the evidence been disclosed statute is a Texas “structured” defense, the result of proceeding statute, “guided designed discretion” Bagley, would have been different.” 473 disparity appli- eliminate the racial 682, U.S. at 105 S.Ct. at Instead of penalty cation death which undertaking required step, this analytical Supreme found un- Court offensive and leaps majority from a finding Georgia Furman v. constitutional was exculpatory statement conclu- U.S. S.Ct. 33 L.Ed.2d [408 sion that is entitled relief. (1972)]. imagine cannot that the of this revelation piece of swung minor evidence Using would have data collected from the several prosecution acquit- entire around to an capital hundred Texas convictions which challenge majority tal. set out during occurred the first decade of reasonable scenario in a change which such post-Furman statute, Dr. Ekland-Olson in result would be more than likely not. sought to determine whether Texas’ new scenario, such a majority Short of guided discretion statute was in fact be- granted should relief based on ing applied in a non-discriminatory man- this issue. ner. *37 accounting significant for the
After
variables,
analysis
Dr. Ekland-Olson’s
of
Ill
penal-
the data
the Texas death
revealed
set, applicant
In
third claim
filed and
statute,
applied,
ty
produced
as
has not
alleges
support
facts to
a claim that “Tex-
non-discriminatory
Significant
results.
penalty system,
applied,
as’ death
dis-
exists[,]
race-linked discrimination
in that
against
criminates
black
in vio-
defendants
capital
involving
are
cases
white victims
Sixth, Eighth,
the Fifth
lation of
and Four-
precipitate
to
likely
pen-
more
the death
teenth Amendments to the United States
alty
involving
than cases
black victims.
Although
claim
Constitution.”
McCleskey
v.
279,
regarding rape
The
Kemp,
based
U.S.
research
homicides
481
1756,
(1987),
Texas,
appli-
107
1.The fenses Clarence Texas, many is a man. all of the of- possible black 926 combinations, in 1978 when a black except one instance racial
fender/victim police officer was allowed in Conroe probability being executed Texas is jury. serve on a man con- increased five fold for a black rape of a white victed of the homicide first trial jury at Petitioner’s 9. woman. 11 1 for ultimately deadlocked became holdout, The lone William conviction. Ekland-Olson, es-
The research of Dr. Shreck, be- to vote for conviction failed tablishing penalty death that the Texas prov- felt that the State had not cause he produced racial statute has victim-based guilt beyond a reasonable en Petitioner’s discrimination, oth- is consistent with the deliberations, the oth- During doubt. through- in er research done Texas and repeatedly called William jurors er sophis- country, particularly out the After a “Nigger lover.” Shreck [sic] study Supreme ticated Baldus which declared, Shreck re- mistrial William was statistically accepted as valid Court of ha- and thousands ceived thousands 279, 107 McCleskey case. U.S. [481 phone During the first rassing calls. (1987) S.Ct. 95 L.Ed.2d ] month, arrive harassing calls would first trial jury 4. The Petitioner’s phone was every five seconds when per- all white. The State used was those occasions left on the hook. On emptory challenges qualified to strike all answered, caller phone when blacks. “nigger and then would exclaim lover” jury in second trial 5. The Petitioner’s hang up. per- all white. The State had used years April six after the qualified emptory challenges to strike all declared, ap- William Shreck mistrial was blacks. purchasing agent plied position for the 6. At the time of Petitioner’s first County. Of the seven- Montgomery trials, Attorneys the District second [sic] job, ty-odd applicants for the William Montgomery county utilized Office the several selected as one of Shreck was prosecution manuals. The man- several Mr. had considerable finalists. Shreck reference uals were resource or books thirty-odd years on the experience based prosecutors instructed the on all which purchasing agent employed he was as a aspects try of how to a criminal case. company in Houston. As a for an oil per- The manual recommended that black finalist, judges the five district and the to serve on sons not be allowed Montgomery county commissioner jury. criminal County William Shreck. interviewed At the time of Petitioner’s first and 7. interview, approxi- During the 45 minute trials, practice exist- second a routine mately minutes was consumed Montgomery County District ed in the regarding why judge’s questions Shreck persons Attorney’s office that all black at the first not vote for conviction did jury panel stricken from the Judge Keeshan Brandley trial Had defendant. when there was black many questions. dis- asked *38 Attorney allowed any Assistant District told Shreck that judges trict then William person juror, as a the a black serve guilty” at the first trial his “not vote Keeshan, would Attorney, James get along District that he could not demonstrated explain required judges that assistant denied Mr. people. The with practice standard why departed job. he form the Shreck a person to serve on by allowing a black body Shortly after the victim’s jury. criminal 23, 1980, August a white found on was having practiced police in officer had a conversation lawyer Conroe 8. No perpe- Henry regarding Peace who Montgomery County can recall a black with The officer then the murder. being permitted to serve on trated person ever Brandley defendant, and Clarence a turned towards jury a when there was black nigger “Kill kill ...” nigger nigger, announced to Peace that “The the the deputies The the wom- sheriff’s allowed elected.” an in the to remain courtroom. trial, 11. Prior to Petitioner’s first Pe- Davis, high- a The Reverend Anderson attorneys approached titioner’s the Sher- 60’s, ly person in his middle educated Reaves, iff Montgomery County, Gene many that he testified that of the trials post Petitioner’s bond. Bond had been years personally has witnessed over Thirty ($30,000.00) set at Thousand Dol- Texas, Virginia Georgia, the State of lars good and Petitioner’s attorneys Tennessee, and on occa- one other surety and sufficient to make bond. experience sion did a where the he trial bond, The accept Sheriff refused to compared racial in the tension courtroom however, stating Nigger that “The little Brandley to that of the Trial. That trial belong ground.” doesn’t on the Dis- [sic] Chattanooga, was in in 1946 Tennessee Attorney trict James Keeshan was stated, prosecution when a with- witness present agreed, echoing and the Sheriff’s court, reproach out from the that he phrase Nigger the “little [sic] things “niggers”: knew three about belong doesn’t ground.” lie, They all steal smell. After Sheriff both Reaves District courtroom, The tone as fostered Attorney Keeshan made their intentions Office, Attorney’s the District clear that didn’t want the “little office, Judge and the District Clerk’s bond, Nigger to make Keeshan met [sic]” example white against black. One Judge Lee Alworth without no- atmosphere against white black Judge tice to defense counsel. Alworth evident the in-chambers discussion signed parte pre- thereafter an ex order during phase, penalty where dis- pared by Keeshan which raised Petition- complains attorney judge trict trial to the Seventy ($70,- er’s bond to Thousand that a a black woman had sat on white 000.00) Dollars. Attorney woman’s hand. District Keesh- 12. Racial considerations infected the an personal further his white ver- reveals atmosphere within the during courtroom posture sus suggests black when he Petitioner’s trial. Many members of the if any announcements the audience public, white, both black and attended are necessary, he will make announce- trial. Montgomery Petitioner’s people ment to the white and Petitioner’s County Department Sheriff’s treated the attorney make an could announcement to black spectators differently, however. Wholly people. apart black from the person When a black exited court- judge’s legal rulings, the demeanor and trial, during room one of the numerous judge attitude of was hostile deputies sheriff’s on hand would follow Petitioner black members person the black from the courtroom and audience. Reverend Robinson J.J. keep person under An observation. judge’s testified that attitude to- elderly gentleman, black Reverend J.J. people wards Petitioner the black Robinson, pastor Bap- of the Mt. Hebron clearly judge’s the audience revealed the Houston, tist Church was even fol- partiality in case. The Reverend did deputy lowed a when he went to the being not feel even comfortable restroom. courtroom. Several at the witnesses testified evi- trial, 13.During petitioner’s second dentiary hearing powerful feeling “company” atmosphere “team-like” or *39 prejudice pervaded and racial tension Judge existed at the courthouse between Judge the courtroom. Martin’s secre- staff, Attorney’s Martin’s the District Dial, tary, elderly Janet heard an white Office and the District office. Clerk’s openly repeat woman in “goal” to herself “project” of the team was courtroom, others, plainly Employees but audible to to convict the Petitioner.
Judge parte meetings Martin’s and the District conducted ex with the staff Attorney regarding Petitioner’s pressure Clerk’s felt to be team District Office case.) players and were too intimidated to act
impartially towards Petitioner or to even
Judge
Based on the demeanor of
John
any suggestion regarding
voice
Petition- Martin the
that he testi-
two occasions
possible
er’s
innocence.
fied,
credibility
and the
determinations
regarding
that the
other
Court made
wit-
“project-like” atmosphere pervad-
hearing,
evidentiary
nesses at the
during
ed the courthouse
Petitioner’s
Judge
that
Martin’s testimo-
Court finds
atmosphere
second trial. The
existed
ny, perhaps tempered by
for
a motive
conviction,
even after the
as evidenced
self-preservation,
simply not credi-
agreement,
Judge
Mar-
between
ble.
tin,
Attorney
the District
and the District
Clerk,
keep
secret the fact that critical
Georgia
a
in
McCleskey, man
who had
missing.
exhibits
A
had become
sordid
challenged
been sentenced to die
that
“project
instance where the
like” mental-
capital sentencing process
state’s
on the
ity
justice
overbore
sense
grounds that the killers of whites are more
decency at the courthouse can be seen in likely
given
capital
be
a
sentence than
conduct of
District Clerk and the
the killers of blacks.
Attorney
Attorney
District
when
Don
As a black defendant who killed a white
began inquiring
Brown
about the miss-
victim, McCleskey claims that the Baldus
ing trial
Don
in-
exhibits. When
Brown
study demonstrates that he was discrimi-
Peggy
formed District Clerk
Stevens
against
nated
because of his race and
going
that he was
to ask District Attor-
of the race of his
In its
because
victim.
exhibits,
ney
missing
Keeshan about the
form, McCleskey's
broadest
claim of dis-
Peggy Stevens rushed to warn Keeshan
crimination extends to every actor in the
at his
Peggy
office. Keeshan and
Ste-
Georgia capital
process,
sentencing
attorney’s
vens then hid in the district
prosecutor
sought
from the
who
laughed
office and
Don
ar-
when
Brown
penalty
jury
imposed
death
and the
Attorney’s
sentence,
rived and the District
secre-
to the State itself that en-
tary got
“project-like”
rid of him. The
capital punishment
acted the
statute and
atmosphere
22,
despite
culminated on
allows it to remain in effect
its
November
1985,
Martin,
discriminatory
Judge
allegedly
application.
when
John
at the
special request
Peggy
of District Clerk
McCleskey,
929
capital
charged as
could be
an offense that
Although
procedural
there are few
barri-
The
a death sentence.
to receive
claim, murder
proving
equal protection
ers to
an
evidence
the statistical
hearing judge found
quantum
necessary
to sus-
of evidence
au
The
persuasive.16
credible
to be
high.
tain such a claim is
however,
admitted,
study
thor of the
punish-
Implementation
[capital
of these
appli
prove
to
whether
failed
this evidence
necessarily requires
laws
discre-
ment]
of racial discrimina
the victim
cant was
tionary
is
judgments. Because discretion
limitation, Dr. Ekland-
Despite this
tion.
justice process,
essential
the criminal
a
testimony establish
study and
Olson’s
exceptionally clear
we would demand
racial
the victim of
applicant was
risk that
proof
we would
before
infer
may
risk
This statistical
discrimination.
tainted
discretion has been abused [or
evidence
some circumstantial
used as
by racial considerations].
McCleskey,
claim. See
support applicant’s
297,
at
McCleskey, 481
at
107 S.Ct.
U.S.
7,
n. 7.
trial could never
a direct basis of
lish that the State’s
relief from his conviction
in other cases.
guilty
at
the second
been
of discrimination
remedy
trial.
225-26,
available when a defen
Id. at
85
at 838-39. The
S.Ct.
proves
jury
dant
that his
was selected in a
presump-
reason for this dual burden is
discriminatory manner is a
trial. The
new
Supreme
tion that the United States
Court
remedy for such a constitutional violation
prosecutor
established that a
exercised his
conviction,
judg
is reversal of the
not a
peremptory
challenges
good
faith.
v. Geor
acquittal. E.g.,
ment of
Whitus
Swain,
222,
was the reason for
this
why.
have wanted to know
opposed
using
peremptory
a
chal-
ror as
Thus,
testimony supports
of a
an inference
lenge.
against
policy
black
de facto
to discriminate
Q: Do I
then that as
understand
Assistant
defendants; however, the exist-
veniremen and
Attorney,
explain
you
have to
District
would
jure policy
supported
is not
ence of de
why you
why you
explain
would have to
record.
would do such stunt as to leave a Black man
jury
you
where
on the
had a Black defendant?
spells
ju-
20. The statement of facts
this former
why,
"Sreck,”
want
findings
A: He’d want
know
he'd
some
and the
of fact
ror’s name
designate
saying
may
explanation.
I’m
there
as "Shreck.”
am unable
him
him,
explanation
spelling.
determine
is the correct
have been
that satisfied
which
ment, however, suggests
physical
the state-
because of his
abili-
was “elected”
crime,
Al-
racially
ty
not his race.
ment
less
to commit
indicative of a
motivat-
very
though
Peace’s
raises a
investigation
appear
ed
than
would
first
strong
police
inference that the
officer
testimony concerning
blush. The
this inci-
racist,
question was a
it also illustrates
dent reveals:
suspect
focus on
as a
that his
Q: (By
DeGeurin)
Peace,
Mr.
Mr.
let me
grounded
legitimate
and race-neutral
repeat my question as best I can.
This incident
reasons.
fails to establish
*43
you,
After
when
you
Clarence
any
swayed
decision maker
that
was
Brandley
spoke
any police
first
to
by
of
consider-
exercise
his discretion
racial
officer,
any police
did
officer indicate
Thus,
ations.
this factor does not contrib-
you
suspect
who a
be in the
would
applicant’s
McCleskey.
ute to
claim under
case?
support
McCleskey
In further
of his
Yes,
A:
sir.
claim,
complains
applicant
that his initial
Q:
you
Can
tell the Court what was said
$30,000.
set at
at-
Applicant
bond was
-
you by
police
officer?
post
tempted to
of
bond but
Sheriff
Yes,
A:
sir. I was on
left hand
side Montgomery County
accept
refused to
and ...
parte
An ex
bond.
order was issued
Alworth,
Judge
raising
required
bond
Q:
time,
you
Just take
Peace.
Mr.
$70,000.
particular, applicant
com-
IA:
don’t
remember which side was
plains
evidentiary
that
at the
you
on now. I
tell
can what
[sic]
hearing revealed that the
of Mont-
Sheriff
police
though.
officer did say,
County,
Reaves,
gomery
Gene
and James
Q:
say?
What did he
Keeshan, opposed applicant’s posting of
A: He
strong
told me that I wasn’t
bond
of his race.
because
When
enough
they
or tall
enough
that
bond,
post
attempted
Sheriff Reaves
pressure put
had a lot
them
“the little
doesn’t
Nigger
stated that
[sic]
Well,
they called him—
Mr.—
ground.”
Attorney
belong on
District
Honor,
acknowledged
he was
say
THE
Your
can I
Keeshan
that
WITNESS:
phrase,
present
the sheriff
when
used this
when
they called him?
[sic: what]
using
phrase
but he denied
this
himself.
Yes,
THE COURT:
sir.
subsequently
Judge Al-
Keeshan
met with
(Continuing) They
nig-
A:
that
said
worth
notice to defense counsel.
without
ger
enough
strong
was tall
raising
required
parte
order
ex
enough and he was elected.
meeting.
bond amount was issued after this
Judge
appli-
n
n !
Pickett found in
Jj<
n
n
favor
Sfc
disputed
these
cant on
facts.
Q: The answer was?
Applicant
subsequently
af
convicted
say
I said
A:
did
allegedly wrongful
ter the
denial of bond.
nigger would
one that
be the
was.
applicant’s subsequent
convic
Because
something
elected or is
elected
tion,
provides
issue is moot and
no
this
like that.
independent
applicant.
avenue for relief to
Q: Did
say
Brandley
he also
to Mr.
State,
(Tex.Cr.
v.
mony PETERSON, Dial. Appellant, of Janet Peter B. testimony provided Her the basis for the v. saying finding that a woman was “kill the Texas, Appellee. The STATE of nigger, nigger....” kill the While Dial testified that woman the back of No. 515-87. this, say courtroom said she could jury any whether member of the could hear Texas, Appeals of Court of Criminal Similarly, the statement. Rev. Robinson’s En Banc. following testimony concerning deputies Dec. spectators from the courtroom fails black jury to establish that the was aware of this
practice par- any or that affected
ticipants way. I am to as- unable
sign degree weight a definite *44 grossly speculative
evidence because required.
nature of the inferences finding
The thirteenth of fact concerns prose-
the “team-like” attitude between the personnel.
cutor’s office and court I feel
that this evidence should be treated identi-
cally concerning to that Keeshan’s conduct job Shreck’s interview. While testi-
mony suggests improper conduct on the staff,
part of court it fails to establish that of this behavior ra- was motivated showing
cial considerations. Absent a race,
links their actions to this evidence regard
should not be considered in to a McCleskey.
claim under reject hearing judge’s
I would find-
ing that: Brandley’s
the color of Clarence skin was pervaded
a substantial factor all which
aspects capital prosecution State’s him,
against impermissible significantly
factor which influence the
investigation, post proceed- trial and trial
ings of Petitioner’s case. simply
The record this cause does not “exceptionally proof” ap-
establish clear
plicant’s required by McCleskey. claim as
Applicant should denied relief under this
claim. reasons, all
For of these dissent.
McCORMICK, P.J., DAVIS, and W.C.
J., join opinion.