Ex Parte Reed

spent prison awaiting the outcome of his Rodney REED, Applicant. Ex Parte

appeal. condition community supervision, A No. AP-75693. valid, be must relation have reasonable accused, to the ship rehabilitation of the Appeals Criminal Court of Texas. compensation victim, or the 17, Dec. protection of the public. See Tamez v. State, 686, 534 S.W.2d (Tex.Crim.App.

1976). light In lengthy post- of the very judgment by appel incarceration endured case,

lant this it was unreasonable for trial court require him to serve an days jail additional 180 a condition community supervision. It is inconceiva ble that such further incarceration would had any relationship reasonable appellant’s protec rehabilitation or public. tion addition, In Supreme United States has held Court that the Fifth Amendment against protection jeopardy double is vio- punishment already lated whenever en- fully dured for offense is not subtracted punishment imposed. new Pearce, 711, North Carolina v. 395 U.S. (1969). 2089, 89 S.Ct. 23 L.Ed.2d 656 view, my applies that crediting principle equal force to probation condition in question really, type punish- new — imposed for the conviction af- same

ment — appeal. ter Finally, I agree court of ap with the peals “denial of time credit a situa [in like the tion one have the here] would of penalizing prose effect a defendant [for] cuting appeal, and a defendant should ” not have ‘start over’ once he is correct State,

ly sentenced. Abbott v. 245 S.W.3d 2007) 19, 22 (Tex.App.-Waco (quoting Wat State, v. (Tex.App. son 942 S.W.2d 723 pet.)). [14th -Houston no Dist.] Houston, Moon, Monis Over-

Morris Austin, street, Smal- Bryce Benjet, Sandra MN, Appellant. ley, Minneapolis, for Tanner, Attys. Dettmer, Tina Lisa Asst. Horn, Atty., Gen., Jeffrey L. Van State’s D.A., Austin, Goertz, for Bryan Bastrop, State.

OPINION

KEASLER, J., opinion delivered the PRICE, MEYERS, in which the Court JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Rodney convicted and sen Reed was for the murder of tenced death ap subsequent this second Lee Stites. corpus, habeas plication writ sup failed to the State prove has v. Brady pressed evidence violation of to meet has also failed Maryland. Reed inno requisite, gateway standard of likely than that it more showing cence— juror no not that reasonable him light new evidence convicted Article presented trial —under 5(a)(2) 11.071, Code Section Texas Relief is therefore Procedure. Criminal denied.

I. Facts shirt insignia with H.E.B. on the front. Typically, she would wear a white T-shirt Stacey Lee Stites’s partially clothed cax-ry the red shirt body was discovered on the side of a deso- dooi’, way out the along plastic with a cup late country in Bastrop County, road Tex- juice Although water. Stacey had 23,1996. April as on access to gray Carol’s white or Ford Tem- mother, Stites, and her Carol po, routinely drove Fennell’s red to Bastrop moved from Smithville Chevrolet S-10 extended-cab truck to Stacey graduated after high school. work. Carol’s car was unreliable and had briefly After working for a car dealership broken down on the road in past. in Bastrop, Stacey began working at the commuting work, When Stacey would H.E.B., store, a grocery aas cash- Highway take Highway 290 to 21 and then ier bagger in October 1995. In Janu- Street, Loop over the rail- 150/Chestnut ary Stacey and her mother moved to road ti'acks into Bastrop. The drive took the nearby town of Giddings so that Stacey approximately twenty-five thii-ty min- flaneé, could be Jimmy with her Fennell. utes. When she finished her shift in the Fennell, who had completed police afternoon, early Stacey usually would go to academy at Capital Planning Area apartment, Carol’s nap, take a and then (CAPCO) Organization Counsel in October get up prepare and things with Carol for patrol was hired aas officer with the the upcoming wedding. Giddings Department Police in December. a long-term With interest law enforce- leaving 22,1996, After April work on ment, Fennell had previously been em- day died, before Stacey she arrived at ployed by the Bastrop County Sheriffs apartment Carol’s early the afternoon. Office jailer. as a Carol described Stacey She nap. ate lunch and took a Fennell and Fennell as inseparable they since be- came later, home from a work few hours gan dating a meeting few weeks after at having boirowed Ford Tempo, Carol’s May Smithville Jamboree in By Fennell returned Carol’s extra set of car late December the two en- keys to placing Carol them on a shelf in gaged. her apartment. designated Carol the ex- Carol, Stacey, and Fennell moved into tra set as set. The three then apartment complex just outside Gid- briefly talked about their schedules for the dings. Stacey and Fennell shared an following day. Stacey was scheduled to be apartment on the second floor of apart- a.m., at woi'k at 3:30 and Fennell was ment building, and sepa- Carol lived scheduled to Stacey work. Fennell and rate apartment one-bedroom downstairs. planned to go to the insurance agent and to pick out flowers for the big wedding

With a church wedding planned for ceremony after 11, 1996, Stacey got off of May woi'k. Stacey transferred into the When Fennell produce suggested driving Stacey to department at H.E.B. to earn woi’k, money. more Carol offered to him to assignment The drive Bas- new re- quired trop to meet report Stacey her to so that Fennell could to work at 3:30 a.m. to However, produce sleep stock in. day. Normally, for the Fennell declined she Car- offer, up stating would wake 2:45 ol’s between to 2:50 a.m. that he would dx-iveSta- anywhere cey and take to twenty from five to work. Fennell then left in his truck work; minutes getting ready to leave for to coach a little-league-baseball team with uniform, she would coworker, dress her H.E.B. his friend and Officer David pants which consisted of blue and a red Hall. He returned 8:00 and 8:30 between Jimmy Alexander knew Stacey Although met Fennell of Car- Officer p.m. outside Carol, well, Fennell, and it apartment, to he did not know him according ol’s upstairs truck be- laughing ran “as hard as did his mind that the two then not enter they longed Jimmy Fennell. When Officer could.” his inside the cab with Alexander looked Stacey returned to When Fennell and that driver’s seat flashlight, he noticed together. their showered apartment, books reclined and there were was Stacey Although taking birth-control Outside the clothing on the seats. not have inter- pills, the two did sexual Officer ground, side door on driver’s because, pre- in her point course at this piece a small a bro- Alexander observed scription cycle, the vitamin pills noting After ken belt with buckle. taking greater for possibility allowed no glass, there shattered The also pregnancy. two discussed them intact, and that the ignition was driver’s day the next for time. plans for a second locked, Officer Alexander side door was they agreed them Abandoning plan, earlier nothing out of order concluded Stacey take truck to would Fennell’s patrol returned duties. arrange work and that Fennell Stacey take him to Carol meet looking Stacey for Still out arrive off of got when she work. work, finally decided to call Car- Cardenas sleep p.m., then at 9 went while Fennell a.m. ol 6:30 and 7:00 "When between stayed up and watched the news. told failed to Cardenas Carol work, upset 23rd, up Carol became morning, April The next show Andrew immediately yelled out for Fennell. Cardenas, Stacey’s in the pro- coworker work, then back to and duce Cardenas went department, Bastrop arrived at the phone, waking on Carol called Fennell H.E.B. around 3:30 a.m. and waited for Frantic, up. him told Fennell that Stacey in Carol parking lot. Cardenas would did Stacey H.E.B. called and told her that to usually wait his car for arrive up not for work. Fennell rushed they “keep so on show eye could an each stairs, other, putting down the on a shirt make nobody to sure around way told Carol to call authori- and inside down. He together....” walk the store ties tell that he and Carol regarded Stacey them were punctual Cardenas as a both of looking Stacey. for Carol had sets employee, and she to up failed show keys car, Stacey’s work, to her so Fennell took for he became concerned. Cardenas Bastrop Tempo set and drove to in Carol’s eventually shift, went into to his work start Stacey. to look for He drove to the kept eye an Stacey. but he out for H.E.B. and then returned to apart- Carol’s a.m., At patrol, 5:23 on while routine any sign ment. He did not see Bastrop Officer Paul Alexander with the Meanwhile, the truck. officers with Department Sheriffs Fennell’s observed Police Bastrop Department looking were truck parked Bastrop High School Board, Stacey, investiga- for an David parking lot. Mindful that the truck had Department, tor called Carol to parked previous during been there his doing every- ensure her that were patrol of the area and that there were no thing possible Stacey. locate to lot, other vehicles Officer Alexander a.m., dispatcher requested approximately contacted the At 9:00 after author- The dispatcher missing-persons report, check. re- ities received the stolen-vehicle Selmala, ported registered investigator that the to Bas- vehicle was Ed with the trop dispatched last to Department, an individual with the name Fennell. Police this, the Bastrop High parking School lot. After Fennell to apart- returned his arrival, Upon Investigator Selmala notified complex ment in Giddings. officers, other including law enforcement When the truck was delivered to the Board, request- truck’s location and Austin, DPS garage in a crime-scene team ed investiga- assistance. While numerous began to it process for evidence. The tors the Bastrop from Police and Sheriffs stopped team them initial overview of the Departments photographing truck when body was discovered evidence, truck other pieces Officer Kenneth shortly Osborn before 3:00 Alexander was called back into to work Drive, on p.m. Bluebonnet located off explain why he ran on plate the license Osborn, FM 1141. appraiser, real estate truck that morning earlier and to write a early for a 3:00 appointment o’clock report. and decided to drive on Bluebonnet Drive The truck was later taken to a local tow pick to some flowers for wife. He shop transported and held until it could be spotted Stacey’s body among thorny some to so that Austin members of the Texas on brush a ditch side the road. Department of Safety Public Crime Labo- approached Stacey’s body, Osborn When (DPS Lab) ratory process Crime could he realized that was dead. got He

for evidence. While the truck atwas car, stopped back into his a house near- shop Bastrop, tow authorities requested called by, police, and then went back to presence identify Fennell’s to found items Bluebonnet to police. Road wait in and outside of the truck. Fennell was specifically any- instructed not to touch Barton, an investigator John with the thing peer identify into the cab and Department, County Sheriffs supposed that was be in anything one of the first law-enforcement officers the vehicle. Fennell observed several arrive at the scene. He covered Stacey’s things in the truck that were “out body prevent green blanket First, ordinary.” one of the shoes tennis media, circling helicopter, above in a Stacey normally wore work was taking photographs. He also closed off the of side of passenger’s floorboard the began the crime scene and to photograph Second, foamy the truck. there awas Stacey’s body. Shortly area the carpet resembling substance saliva on the authorities, thereafter, Bastrop joined by covering hump the the trans- over truck’s Wardlow, Ranger Texas L.T. who became Third, mission. pieces there were broken lead designated investigator assigned the of green plastic the console from the to work the with both Police and type cup Stacey usually of took with Departments, Sheriffs decided to call Fourth, her in truck. the the seat driver’s process DPS Crime Lab members to forty-five-degree angle. was laid back at a scene. Fifth, buck- the driver’s seatbelt was still The DPS crime-scene team arrived sixth, led. large smudge And there was a Bastrop from Austin at 5:15 approximately passenger’s on the back window p.m. Blakley, specialized Karen who side. Fennell also identified several items serology, designated DNA and was First, found outside the truck. there were coworker, team leader her carbon of from check- Wilson copies checks second, Young. team, book. of Other members of led regarding piece And a attached, by Blakley, analyst, a included a trace the belt buckle Fennell examiner, it investigators part photographer, latent-print told that was a Detailing Stacey normally serology belt that to work. a trainee in and DNA. wore Stacey’s injuries to Documenting other Stacey’s body, Blakley not- the condition there were body, Blakley observed that missing was a shoe and that ed that arms, a her abdomen and clean, scratches on indicating sock her white was arm, and cigarette burn a on her likely from on outside she had walked her and back on shallow wounds wrists tag An H.E.B. name with the surface. by fire- caused that looked like “Stacey” it found in name written on was a also Blakley documented ant bites. a T- Stacey’s leg, crook of and white from Sta- large of mucus that ran amount shirt, Fennell later identified as be- which face, and nose, the side her cey’s down him, over some longing was strewn into her ham. Stacey’s body. Stacey near was brush a pair clothed in black bra and a of blue Sandifer, Terry latent-fingerprint pants a Her zipper. broken visible examiner, beer cans collected two Busch in the green underwear wet crotch was from the road that were located across hips. Viewing and bunched around her body discovered. Stacey’s where assault, indicative of a sexual Blak- this as fin- processed the cans When Sandifer semen, for the ley presence tested lab, no she discovered gerprints at yielded positive initial test a result. fingerprints analyze. suitable Blakley then collected additional swab scene, Blakley re- After processing samples Stacey’s vagina and breasts. around evening turned to the lab in, rigor Blakley had set Because mortis she p.m. 11:00 so that could look could determine had been a vaginal under substance on swabs anally already very sodomized. “She was intact microscope. She discovered stiff, try and in order to get for me to still heads with the tails sperm sperm— I possibly injury the anal area could cause that, in her indicated opinion, attached — damage or further and make look like activity Her that the recent. sexual something she had suffered study on published based a conclusion was didn’t.” outside finding “26 hours is about the a tails length of time that remain will According it “looked a Blakley, like sperm vaginal inside the tract of head great force had applied been [to immediately reported female.” She ... because like an neck] it was indenta- Ranger finding Ranger Wardlow. red, like into her tion but it had cut skin.” presence semen as Wardlow viewed Blakley concluded injury that the evi- “smoking gun,” surmising by piece caused belt that webbed gave perpetra- assault dence of sexual Stacey’s body located near on the side of Ranger to kill. Wardlow tor motive the dirt road the matched “[b]ecause left identifying the man who theorized that pattern that neck.” [Stacey’s] was on And of discovery the semen lead the piece of a buckle when belt with found Stacey’s killer. high Fennell’s truck at the school near County scene, Bayardo, Dr. brought Blakley compared to the Robert the Travis Examiner, autopsy Medical conducted an the two concluded matched. Stacey’s body following team on afternoon designat- Another criminalist on the on Stacey died concurred 1:50. He estimated that ed to search trace evidence a.m., take determination, at 3:00 Blakley’s concluding April give the 23rd of hours, on that occur Going changes a few based pieces step matched. Bayardo Dr. farther, body also that the in the after death. concluded belt had Stacey pre- post-mor- had not cut. noted that been torn 706

tem injuries. He differentiated the anus between result of seepage from based two of bleeding; absence vagina. Utilizing his education and once the heart stops beating, there is no experience about determining whether a bleeding more and no more bruising. The particular injury occurred before or after burn, Blakley which believed was caused death, Dr. Bayardo concluded that by a cigarette, died, occurred after sustained the injury to her anus at or scratches, as did Bayardo’s several opin- around the of time her death and that the Although ion. Stacey’s skull showed no penetration was therefore not consensual. signs outward of injury, Dr. Bayardo Blakley Because prior had commit- skull, looked inside the he documented ments, Young took over the serological multiple bruises that the appearance “had on duties the 24th. Young conducted two injuries sustained by being struck on types Polymerase Chain Reaction the head finger with the knuckles with a (PCR) DNA testing, DQ-Alpha closed hand.” Comparing injury pat- D1SS0, Stacey’s blood, the vaginal Stacey’s tern on neck pieces with the by Blakley swabs taken Bayardo, and Dr. authorities, webbed belt by collected Dr. and the substance found on the crotch of Bayardo concluded that the belt was the Stacey’s Young underwear. conducted weapon murder and that Stacey died aas only one type of PCR DNA testing, DQ- asphyxiation result of caused strangula- Alpha testing, on the anal swabs taken tion. He estimated that asphyxiation Dr. Bayardo because quantity of sam- takes approximately three to four minutes ple was limited. person and that a becomes unconscious Every person receives one DQ-Alpha within one to two minutes. allele and one D1S80 allele from each par- Because of evidence indicating sexual ent; therefore, every person possesses two assault, Dr. Bayardo vaginal took swabs. DQ-Alpha alleles and D1S80 alleles. two Viewing the swabs under a microscope, he Stacey’s possessed DQ-Alpha blood presence observed the sperm with both alleles of 1.2 and and the D1S80 allele of This, heads and tails. according to Dr. 24, which parents meant that each of her Bayardo, sperm indicated that contributed a 24 genet- D1S80 allele to her been Stacey’s introduced into vagina “quite makeup. ic portion On the male of the recently.” Continuing the sexual-assault vaginal taken by Bayardo, swabs Dr. exam, Dr. Bayardo took rectal swabs. 1.2, 3, results DQ-Alpha showed alleles microscope, Viewed under a he identified and and D1S80 of 22 alleles and 24. The sperm several heads without visible presence alleles, of three ac- DQ-Alpha tails, which led him to report the result of cording to Young, is a common occurrence negative. test as Sperm, according carryover when there is of DNA from Dr. Bayardo, breaks down much faster in either of the two donors that cannot be the rectum than it vagina does entirely eliminated during testing pro- presence because of the of other bacteria validity cess and does not in the rectum. affect the conducting When a visual area, results. The 22 foreign exam rectal Dr. D1S80 allele was Bayardo Stacey. to Regarding vaginal noticed that her the anus was dilated swab and that there superficial by Blakley, portion were some taken the male lacerations on showed posterior the margin. opinion, DQ-Alpha In his of this alleles 1.2 and 3 and D1S80 penile was consistent of 22 penetration, signified alleles and 24. This no though even he did not entirely carryover rule out from Stacey and indicated that possibility the presence sperm that the of the semen donor possessed DQ-Alpha the

707 Wardlow, Blakley and all Young, Ranger of alleles of 1.2 and 3 and the D1S80 alleles the position of note the reclined took of Testing portion the male 22 and 24. on driver’s seatbelt seat and the driver’s pres- from the rectal swabs indicated the specifical- Ranger Wardlow fastened. was 1.2, 3, and DQ-Alpha ence of alleles lap of the belt ly portion noted that the DQ- carryover, there was the 3 While it because like sat on looked someone Stacey. to Test- Alpha foreign allele was then in The three a downward bow. was potion DNA the ing of the male from to a possible pull it was tested whether Stacey’s the crotch of underwear showed the vehicle seatbelt person from the while and 3 presence DQ-Alpha alleles 1.2 Blakley, was Putting who fastened. was the indicating and alleles 22 and D1S80 Stacey, to weight and height similar Finally, testing carryover. absence of lap the with and without the driver’s seat Stacey’s on the from showed swabs breasts on, Young and took Wardlow Ranger belt 1.2, the alleles presence DQ-Alpha by ei- her from the pulling turns vehicle 4 22 The and and D1S80 alleles of and 24. In each the or the shoulders. ther feet DQ-Alpha allele the D1S80 allele instance, Young Ranger Wardlow foreign Stacey, though were to even there Blakley able remove to results, Young carryover. Given the was Further, Young, who six- truck. single concluded that there was a semen seat, foot-two, sat in the reclined driver’s donor. out of he noticed that he had a clear view rear- the back window of the truck Young participated processing also completed pro- mirror. When DPS view 25th, by on the accompanied truck truck, it Fen- cessing was returned to examiner, Sandifer, latent-print transported it immediately nell. Fennell joined Ranger Blakley them Wardlow. it in. dealership and traded day the next when she returned to work. next course of the eleven Over the processing In and the carbon truck months, then- investi- authorities focused copies of Fennell’s checks found outside knew, people on gation prints, dis- truck for Sandifer did not H.E.B., $50,000 reward offered anything cover remarkable. Sandifer poured in. numerous leads and information only a could find items with suitable few instance, newspaper-delivery person For prints. prints, examined the When Stacey’s body not on reported that she was either unable to make a match he drove Bluebonnet Drive when prints belonging identified the as to either body 4:00 found at site where Young or Fennell. focused all, hundreds a.m. officials interviewed looking presence for the of blood or semen classmates, including people, former Young none. And although but discovered coworkers, well Sta- boyfriends, and as items, including portion collected other at H.E.B. cey’s friends and coworkers Fen- or mucus substance that saliva suspects were twenty-eight male Over previously carpet nell over noticed identified, immediately and some some hump, he did not discover transmission Each during ensuing investigation. significant help that would anything give suspect was asked to consent Blakley, hav- identifying perpetrator. blood, hail', samples. and saliva With Stacey’s body, one, observed noted Haynes, all of the exception Brian hump on the transmission provid- substance their suspects offered consent Haynes refused Although looked the mucus that the samples. similar ed consent, compelled provide flowed out of nose. samples after a authorities obtained a.m. Authorities also canvassed Fennell’s request- apartment complex, search Authorities also looking warrant. for anyone ed samples light and obtained from Officer could shed some on anything Hall. friendship Because of his relating Stacey with Fen- on Fennell the morn- nell, Officer Hall was as a suspect. viewed of the 23rd. No reported being one Upon request, voluntarily he provided awake and about that morning. Finding samples. no to support evidence Fennell’s involve- crime, ment in the eventually authorities Hall, lived approximately who one block as a suspect. eliminated him away from Fennell’s apartment, had an wife, Lawhon, alibi—that he was Haynes’s brother, home with his David Brian Hall, Carla when Stacey disappeared. a emerged suspect shortly viable after Hall, investigating When Ranger Stacey Officer killed when authorities discov- refuting Wardlow found no he a Offi- ered that murdered woman named alibi, cer coupled Mary Hall’s alibi. The in Elgin. Ann Arldt Arldt was mur- Hall, DNA testing excluding by Stacey Officer led dered Lawhon a few weeks after Ranger killed, Wardlow conclude Officer was and officials learned that La- Hall had not been in Stacey’s bragged Stacey. involved whon had about killing death. the two Because cases bore some similari- ties, on authorities homed in Lawhon As the person last known see investigating Stacey’s case. A few people alive, a suspect Fennell was deemed from informed authorities that there had been this, Despite the outset. authorities never relationship Stacey, between Lawhon made an effort to search apart- Fennell’s any but to confirm authorities were unable Fennell, however, ment. was vigorously Indeed, connection between two. interrogated by several occasions Rang- any mutual never friend had indication Wardlow, was, times, er who at various either Lawhon or joined Selmala, by Investigators Barton, or Fennell, knew one another. Like Lawhon voluntarily Board. provided Fennell also of the excluded as the donor semen sample, authorities with blood and even through analysis DNA and was later elimi- though DNA him testing excluded as the suspect. nated as a semen, donor of the authorities tried to against anyway. make a him Ruling Investigator case Selmala also became a sus- possibility pect out the August Fennell used Car- 1996 after he committed Tempo during Ranger ol’s Ford the commission of suicide in his home. Wardlow in- vestigated offense because Fennell to retrieve his death. note written A the keys morning from Carol on the Investigator girlfriend Selmala’s was found looking 23rd for Stacey, body. before went his The note revealed that he Ranger distraught investigated relationship Wardlow alternative was over his transportation girlfriend. methods of that Fennell into Taking account his Selmala, end, Rang- knowledge Investigator could have used. Toward that er taxi records and the investiga- Wardlow examined the which included note and death, Ranger vehicle on all cars tion mileage belonging Stacey’s into Wardlow Giddings Department. to the Police found no to conclude that This reason Investi- nothing, investigation gator revealed Selmala had in Sta- officials involvement Indeed, cey’s investigation believed that Fennell could not death. into thirty-five from Bastrop walked the miles death revealed no connection be- a.m. Giddings Investigator between 3:00 and 6:45 tween Selmala and Fennell or Mart, near Reed’s Long’s located Officer Hall. Star Investigator Selmala and Loop Street only Investi- house on The common thread between 150/Chestnut also Reed Haysel Bowen saw Selmala and the other two was that Street. gator tracks on more walking along the railroad all three law-enforcement officers. were Nevertheless, Spencer Steven Ranger than one occasion. Officer Wardlow directed early morning seeing Reed in the sample reported that a be from Selma- blood drawn Long’s near Star Mart and during walking hours autopsy la Selmala’s and submitted at Grocery, was located Ranger DNA the All which testing. to DPS for Ward- Star Loop and Pecan Street. anticipating made this decision low 150/Chestnut might try Investigator link someone inquire Officials contacted DPS murder. If Selmala’s suicide file sample had a DNA on whether Reed arose, an allegation Ranger such ever database, which includes with the state give then be able to Wardlow would sexual of- compiled DNA from convicted testing Investigator answer—DNA cleared they learned that there fenders. When as suspect. Selmala sample, requested compari- awas DNA potential suspects All of the other son Reed’s DNA between by Blakley. investigated vaginal were were excluded as a re- from the taken swab Lockhoof, testing. sult of DNA in DNA specialist Michelle DPS, DQ- serology conducted Eventually, officials information received testing on the Alpha and D1S80 PCR two Reed, that led to look them into an Afri- samples. DQ-Alpha Reed’s alleles were approximately can-American who was 1.2 his al- identified as and 3 and D1S80 height same as as a Young, suspect. leles identified 22 and 24. as When Throughout their investigation, officials compared sample taken from Sta- nothing found that indicated that as the cey, Reed could not be excluded City knew Reed. Reed in the lived Young’s opinion, the semen. In donor of King on Martin Luther Drive population, 99.8% 99.8% of the Caucasian near railroad tracks. Several of population, of the African-American family friends, members and as Hispanic population 99.92% of the nearby. well as girlfriend, his Bas- lived be donor of the semen. excluded trop High School is near also located tracks, railroad Investigator about sixth-tenths of a Board interviewed Reed af- mile from learning preliminary Reed’s house. The location of ter that the DNA re- significant Reed’s home was him as a suspect. authorities sults could not exclude nearby because Fennell’s truck found Board results Investigator withheld Bastrop High testing at the and Mirandized Reed. School. Authorities DNA had, early rights gave investigation, theo- Reed a written waived it, stated, “I don’t know rized the location convenient for statement. Stites, perpetrator. never seen her other than only thing The what was news. frequently by Bastrop Reed was seen I is know was said on do what patrol walking officers in the area near his news that she was murdered.” Pursu- night. home late at When he worked the warrant, ant to a search blood was drawn early night through part shift DPS and turned over Reed Officer Michael would see Bowen lab. every night p.m. 9:00 almost between subjected sample 4:00 to a more to 3:00 a.m. or a.m. When Officer Lockhoff Reed, type Re- usually discriminating testing, of DNA Bowen saw Reed was 710 Fragment Length Polymorphism

striction population would have this particular ge- (RFLP). again, Once could not Reed be netic profile. Testing portion on the male excluded as the donor of the semen when of the substance from the rectal swab re- Regard- four individual sites were tested. DQ-Alpha and, vealed alleles of 1.2 ing the statistical in frequency which therefore, matched pro- Reed’s DQ-Alpha Reed’s RFLP profile appear in would the Recalling prior file. experience work- population, Lockhoff calculated that it ing on sexual-assault cases for ten-and-a- be one in 590 for the would million Cauca- years, half Clement noted that she never population, sian in one 330 million for the sperm twenty-four found intact more than population, African-American and one in 3 hours after commission of a vaginal-sexual Hispanic billion the population. Com- sperm assault and that breaks faster down bining the results of the and RFLP PCR in than in vaginal the rectal area the vault. testing, frequency ge- in Reed’s which charged Reed capital with murder profile netic in present be trial, May 1997. At to raise reasonable population world’s is one in 5.5 billion for during guilt doubt phase, Reed mount- Caucasian, African-American, and His- two-prong challenge ed a to the State’s panic populations. First, pointed pos- evidence. Reed to the Reed’s father and three brothers were sibility person, particularly that another possible then excluded as through donors Lawhon, Fennell and had committed the DQ-Alpha and testing. D1S80 DNA secondary offense. And as a Reed theory, Because the testing conducted DPS showing focused on that he had a romantic Reed, sought could exclude DPS relationship Stacey with and that se- independent lab, assistance of LabCorp, an men therefore present conduct testing. additional Meghan body because of consensual intercourse. Clement, the director for forensic-iden- prove relationship To romantic be- tity-testing department, received DNA Stacey Reed, tween defense Reed’s samples Stacey from Reed and con- Lindley, longtime team called Iris friend testing, ducted PCR which included test- parents, testify. early of Reed’s on genetic sites of DNA strand 1996, Lindley on sitting porch that are distinct from those considered visiting Reed’s house Reed’s mother. with during DQ-Alpha testing. and D1S80 A young pulled woman with brown hair Looking at ten on different sites the male ¿(cid:127)action truck, front house in a gray walked vaginal the substance on up porch, to the asked Reed was taken swab could Stacey, Clement When home. Reed’s mother told the not exclude Reed as the contributor of the home, young that Reed semen; woman fact, the sample matched Reed’s young asked to tell woman Reed’s mother genetic profile. The probability ran- “Stephanie” Clar- by. had come domly selecting an unrelated individual name, ifying Lindley said that was profile this approximately one in 449,000,000 “Stacey Stephanie.” either Lind- When population, for the Caucasian Stacey, 46,800,000 ley picture she was shown one for the African-American young 5,500,- stated that looked like the population, greater and one in than 000,000 had come house Hispanic for the woman who Reed’s population. Com- bining testing day. Lindley some of the While additional PCR first testified previous DQ-Alpha impression D1S80 she formulated the results, only person one in the dating, world’s and Reed were she conceded he knew about Parnell had no such admitted cross-examination $50,000 by H.E.B. offered knowledge. reward Stacey, that Lawhon knew To establish supporting To rebut Coronado, attorneys called Jose Lawhon, Stacey and relationship between at had with Walmart who worked Lawhon Stacey’s best called of the State two in the Stacey produce depart- and with Cathy high testify. to friends from school H.E.B., testify. ment at Coronado Stacey to the Jamboree with Vacek went Stacey that saw and La- he once stated have that she in and stated would lot parking in the Walmart talking whon had Stacey Lawhon and known if dated later, Stacey that he and worked and when Sherry Jamboree. gone him the H.E.B., him Stacey at told that together Sta- Jamboree with went Lastovica and had dated and that La- she Lawhon in 1995 stated cey Friday night on and a On player.” was “sort of cross- whon Stacey that attended Jamboree after examination, the State asked Coronado Stacey following day, for a time the second surprise it him to whether know had Fennell. told that she met Lastovica dating a named Lawhon was woman a about anything Neither knew woman fre- Macy Christie that she would Stacey and Lawhon. relationship between in the quently parking meet him Walmart testimony from also offered The State stated that did not lot. Coronado he know remem- specifically She Lawhon’s wife. Macy in about she met Lawhon mur- night bered the that her husband lot. parking night, when Lawhon dered Arldt. On that testimony, Cyn- Supporting Coronado’s home, locked the screen failed to come she Jones, Lawhon’s, thia a friend testified door, key, that she did not have so which boyfriend that she and her were with La- he got he home. When would know when Stacey Elgin party at whon finally home, argued returned the two then again then Smithville Jamboree argument She recalled that the about it. said Stacey Jones that Lawhon introduced for him to unusual ensued because was girl” “his the first at the for time Jam- come home so late. When asked whether boree. 23rd, April anything happened like Scott Parnell furthered defense’s be- day Lawhon’s wife remembered strategy implicate Lawhon when tes- birthday, and cause first it was son’s killing tified that Sta- Lawhon confessed happened. nothing she unusual stated night cey. drinking While at a one bar Fennell, Turning told that he stran- their attention to Lawhon Parnell a considera- Stacey either his or her belt and Reed’s defense team devoted gled the short- pretty eyes highlighting before ble amount of time blue cross-examination, investigation into Fennell comings closed them. On she able to Specifically, Parnell officials. prosecution questioned about to the fact that the jury’s written statement that Parnell call the attention signed to offi- provided information at the lion’s share of Department made Sheriffs which Stacey’s cials before Haynes that Brian made the about whereabouts Parnell stated habits, and died, Stacey’s routine and Explaining the evident dis- confession. given in Fennell’s truck was Parnell testified that both La- items crepancy, They emphasized also Fennell himself. Haynes had confessed. Addi- whon search Fennell’s tionally, prosecution inquired that officials did not when possibility of home, thereby precluding the testimony, motive behind ever discovering may evidence that fied that vaginal drainage, which allows implicated Fennell. semen to deposited be ar- surrounding eas, may body occur when a is moved Hannath,

Tami Renee high- around after intercourse. opined She friend, school controlling cast Fennell as ejaculation there has been an in the possessive. She testified that when area, rectal there should be a sperm lot of she and Stacey phone, were on the making ejaculate because a full contains hundreds arrangements to come to Smith- visit, millions sperm. ville for a And regarding Fennell came home. Sta- cey decomposition sperm, then told him about Dr. Johnson stat- upcoming plans while Hannath remained ed that she was unaware of difference phone and phone then the disconnect- decomposition rate of sperm ed. the vagina that in versus the rectum. her experience, sperm she obtained better Finally, presented Reed’s defense team samples from rectal swabs. On cross-ex- its own DNA expert, Dr. Elizabeth Ann amination, Dr. a Johnson admitted that Johnson from Technical Associates Incor- male can a small amount deposit sperm porated. Dr. DQ-Alpha Johnson’s without ejaculating when there pen- is D1S80 DNA test results on vaginal etration and that trauma to the anal area Blakley swabs by taken and the fluid found should determining be considered when in Stacey’s underwear consistent whether penetration. there has been those obtained DPS. And al- though attempted Dr. Johnson to test the evidence, After weighing jury a swab, rectal she determined that there was found capital Reed guilty murder. And not enough DNA to conduct accurate test- following separate punishment hearing, a ing. Dr. DQ-Alpha Johnson’s testing on Reed was to death. sentenced the saliva from breast swabs taken by Blakley yielded same results as the Background II. Post-trial previous testing conducted DPS. On breast, swab taken from left Appeal A. Reed’s Direct testing 1.2, 4.1, alleles, indicated and 3 on the swab taken from Stacey right Reed appealed, claiming, among other breast, 1.2, testing 3, indicated and 4.1 things, factually that the in- evidence was alleles. Dr. Johnson conceded that in all sufficient to support capi- his conviction for of the sixteen tested in case, sites this tal rejected murder.1 We Reed’s sufficien- Reed could not be excluded as the donor of cy claim, holding, strength “Given the the semen and saliva found on Stacey’s the DNA connecting evidence [Reed] body. Further, Dr. Johnson did not dis- [Stacey] sexual assault on and the pute the statistics that Lockhoff devised as forensic indicating per- a result of her testing. son sexually who assaulted [Stacey] was her, quell person

To killed prosecution’s theory who a reasonable anally jury had been sodomized could find that guilty [Reed] before death, questioned Dr. Johnson was offense of capital murder.”2 And conclud- vaginal Dr. drainage. Johnson testi- that Reed’s other claims were without State, AP-73, 135 1. Reed v. (Tex.Crim.App. No. Id. at *9. 6, 2000) (not designated Dec. publication), Texas, denied, cert. 534 Reed v. U.S. (2001). S.Ct. 151 L.Ed.2d 270 merit, Testing on the other specifically affirmed Reed’s detected. we conviction Based DQ-Alpha no results. yielded sentence.3 can results, Young concluded that Reed Ap- B. Reed’s First Second State possible a source of excluded as plications however, for a of Habeas Cor- Writ could exclude Young, DNA. pus DNA compromised if the source of her as mixture of DNA but could exclude also sought habeas relief under single provided by if the DNA was a donor 11.071, Article Texas Code of Criminal Investigator Officer Hall and Sel- source. Regarding original ap- Procedure. possible mala could not be excluded as plication, based on the trial recom- judge’s Reed, According of the DNA. sources findings mended our conclusions and Young’s to make letter the State failed record, own review of the denied relief we State to him until the attached available original a written order.4 While Reed’s response allega- an exhibit to its as sup- application pending, Reed filed original applica- raised habeas tions relief, later plemental claim for which we tion. un- subsequent construed application 5, 11.071, Section evidentiary der Article Texas Code trial held a live judge The and, evaluating of Criminal Procedure. after hearing on this claim merits, deny recommended that we re- its Relying Brady on v. Maryland,5 Testimony hearing supplied from the lief. subsequent claimed in application that insight testing into the DNA additional prosecution give failed to defense conducted on the beer cans. attorneys a May letter from Young dated 13, 13th, Young May 1998. The letter was to the documented addressed On when prosecutor, Tanner, DQ-Alpha lead Lisa an Assistant the results from the DNA test- cans, Attorney guilt phase General District whom on beer of Attorney underway Charles Penick in to and the defense was had called trial was letter, prosecute Young the case. In the its process presenting case-in-chief. acknowledged request analysis particular day, for DNA that the court was On the beer on cans recovered the scene because Dr. Johnson was the de- from recess body Stacey’s where was found and a re- fense’s next witness and she was not avail- testify day. for a Ini- quest comparison following the results to able to until samples prosecution DNA sam- did not that tially, request as well as cans, ples from other had been testing individuals that be conducted beer throughout submitted of the a non- having course concluded Wardlow, Ranger investigation. Young subjected According the sam- issue. cans, top ples DQ-Alpha pine DNA and docu- had some needles on testing which below, Testing compressed mented the results. on one of the of them and needles cans, longer number been there than appeared identified officials as item 24, body. Conversely, presence DQ-Alpha Stacey’s proceeding revealed the be possible DQ-Alpha theory everything 1.3 4. A under the should alleles and 1.2 tested, team test- potentially allele was Reed’s defense ordered masked but was 1194, 10 215 at *22. U.S. S.Ct. L.Ed.2d Id. 5. 373 (1963). Reed, (Tex. WR-50,961-01 parte 4. Ex No. (not 2002) Crim.App. designated Feb. publication). ing on result, the cans. As a neys. letter, Dr. Young’s May when 13th which con- Johnson went to the DPS lab and met with pages, 3,183 sisted of two was numbered Young April 15th, Young swabbed the 3,184. Under the hectic conditions of lips and sides of the cans for in Dr. saliva trial, procedure the standard began to presence Johnson’s split the swabs break prosecution down and the dispensed Dr. Johnson. Dr. Johnson later used providing copies discovery materi- portion DQ- swabs conduct als to the district clerk. Tanner stated Alpha Polymarker testing. On May that she gave believed she a copy of 5th, Reed’s defense attorneys requested Young’s letter to Reed’s defense team be- samples blood from the other sus- cause, when file, she reviewed her she pects, including Officer Hall Investiga- found three stamped copies of the letter Selmala, tor that had been collected and the district clerk’s file did not contain DPS, be made available to Dr. Johnson. copy. policy Based on the usual The trial judge granted request. this practice case, of disclosure in this Tanner Alerted to the defense’s decision to test was copy convinced the fourth cans, requested beer Tanner given been to Reed’s defense team. Wolfe Young test the portions of the swabs that However, similarly. testified neither Tan- he had retained. When Dr. Johnson testi- ner nor Wolfe had independent recol- trial, fied at testify did not about the lection of specifically providing report results that she obtained the DNA to Reed’s attorneys. testing conducted on the beer cans. Tanner also testified she considered Answering Reed’s allegation that she Young’s exculpatory results to be failed to disclose Young’s report to his Therefore, she first them. received defense team at the evidentiary hearing, 13th, May she directed Wolfe to have began Tanner by testifying that Young samples forward the DNA to Lab- Young’s learned of test May results on additional, Corp via FedEx for more dis- through Wolfe, 13th Missy an investigator criminating Polymarker D1S80 and DNA Attorney Office, with the General’s who However, testing. Tanner cancelled the assigned

was to work on Reed’s case with testing day the next when she reviewed Tanner. Because the trial court inwas Dr. report during Johnson’s and notes the recess that day, Wolfe called Tanner at lunch break before Dr. set to Johnson was home and told her about the results. testify. Dr. DQ-Alpha testing Johnson’s Young report faxed the on the 14th when yielded Young’s. the same results as But session, the court was back in and Wolfe through Polymarker' Dr. testing, Johnson report received the it gave to Tanner. Stacey, Hall, excluded Officer and Investi- that, Tanner upon stated receipt of the gator Selmala as firm contributors. Still report, stamped would have been in her belief that given Young’s she had given to Reed’s defense attorneys. Prior trial, report defense, to the to Tanner stated that prosecution instituted a Bates exculpatory stamping system; Young’s report value of page each of each docu- negated subject ment when she Dr. assigned disclosure learned about Hall, sequential Stacey, Johnson’s exclusion of Officer copies number. Four of each document then and Investigator point, made. One Selmala. At that copy placed file, would be the district clerk’s Tanner believed that the issue with the one be prosecution would retained beer cans “had been di- put to bed” and file, in its discovery and the remaining two rected Wolfe to cancel the test- additional given would be ing Reed’s defense attor- LabCorp. with

715 consistently with his wife. Hall Lydia testified Clay-Jackson, Calvin Garvie any attorneys, And asked he had involvement Reed’s trial testified Young’s May death, 13th stated report not seen Officer Hall had gave habeas them a until Reed’s counsel that he did not. attorneys recalled that Both also copy. claim Recommending Brady prosecution gave each of them their denied, judge adopted be the trial copies discovery all materials be- own con- findings of fact and proposed State’s Garvie, during fore and trial. who so, trial doing of law. clusions dealing responsibility with the took of fact judge findings consistent entered case, in the stated that he DNA evidence hearing at the testimony given remembered someone excluded Garvie, Tanner, Clay-Jackson, and found that, certain if Dr. Johnson’s results wife, Carla, to be Hall and his and Officer suspects, of the he had included other adopted trial also judge The credible. testify Dr. to that have had Johnson following conclusions of law: that, further fact. Game stated (cid:127) Young’s report, it could af- intentionally sup-

received have The State did not the jury’s 13,1998 report fected verdict because when DPS press May lab from suggest- there the State Brady Maryland. v. in violation showing presence innocence and (cid:127) 13, 1998 provided May State The scene, “huge.” other at the it is individuals report Applicant’s attor- DPS lab Clay-Jackson agreed, stating it would neys.' helped theory advance them of the (cid:127) fact issue legitimate There remains a by giving explanation case of how Fen- counsel Applicant’s trial as whether Giddings nell could have traveled to May copy actually received Giddings. and back When during Appli- DPS report lab asked whether he would have used trial. cant’s Young’s report, Garvie stated that he it to would have used consult with Dr. (cid:127) May 13, report DPS If the lab Johnson. Garvie further stated that he defense was disclosed and used using hesitate in report would because made a effectively, have would Clay-Jackson of Dr. Johnson’s exclusion. and ac- difference between conviction sentiment, expressed stating a similar quittal, expert since the defense’s own Young’s report given would not have her a already reached the same conclu- has during reason “exhale” the trial if she in report. sion as that reflected that Dr. Johnson’s test- would known (cid:127) in the DNA results Because reflected Young’s refuted results. 13, lab May report 1998 DPS Hall, Officer Hall Regarding Carla testi- previously by Applicant’s refuted own fied, alibi. verifying her husband’s She they because expert, are not material that, early morning stated in the hours suffi- probability do not create a 23rd, husband at home April her to undermine the confidence cient night her. She remembered that because Applicant’s the outcome of trial. daughter up her two-month-old woke with as Considering Brady claim Reed’s “bloodcurdling scream” 3:30 a a.m. application for a subsequent in a baby, her raised While husband held them she held that Reed corpus, of habeas we to fix bottle. husband then writ went a Her any of claim to show that his meets left for work at 5:35 a.m. because he was failed 11.071, in Article exceptions be on at 5:45. Officer outlined duty scheduled to morning Texas Criminal Procedure.6 As a Fennell Code result, ap- dismissed Reed’s subsequent we murdered.

plication as an abuse of the writ.7 (cid:127) Reports family members Jenni- fer and Brenda Prater that Stacey had a C. Reed’s Federal Petition Writ early been seen the morning on Corpus of Habeas April 23rd a man who was not sought Reed then federal corpus habeas Reed complexion. and who had a dark 28, Code, relief under Title United States (cid:127) Longstanding information that Fennell Although magistrate Section 2254. Giddings other engaged officers judge permitted discovery and ordered a pattern brutality against suspects. depositions, several the United States Dis- Reed also claimed that sup- the State trict Court for the Western District pressed Mary Blackwell, information from Texas determined that several of Reed’s formerly Mary known Best. Blackwell is claims were unexhausted Reed because CAPCO, former classmate of Fennell’s at present had failed to them to this Court states she overheard a con- pursuing corpus before federal habeas re- versation which Fennell stated that he result, lief.8 As a the District en- Court strangle girlfriend his with a belt if stay tered allowing March 2004 Reed caught cheating he ever on him. exhaust state-court remedies.9 While this claim was originally filed under seal, it public was made matter of record Subsequent Ap- D. Reed’s Second State evidentiary hearing at the when Blackwell plication for a ofWrit Habeas Cor- in open testified court. pus In October we determined that In March filed a Reed second sub- Brady concerning claims Barnett sequent application state for a of ha- writ requirements and Blackwell satisfied the corpus 11.071, beas under Article Texas 5(a) 11.071, of Article Section remand- it, Code of Criminal Procedure. judge ed claims to the trial for a live claimed, among things, other that he is evidentiary hearing and ordered the trial actually innocent v. under Herrera Col- judge findings to enter of fact and conclu- suppressed lins10and that the excul- State respect sions to Reed’s re- law. With patory Brady. in violation maining relief, grounds for held that we Contending Brady, that the State violated 5(a) satisfy Reed failed to Section sup- Reed maintained that the State dismissed those claims as an abuse of the pressed following evidence: writ. (cid:127) linking DNA evidence the cans beer of We now turn the details Reed’s near body found to Officer Brady concerning claims Barnett and Hall. Blackwell. (cid:127) Eyewitness information from Martha Barnett she had seen and 1. Barnett Reed, WR-50,961-02 (Tex. parte 6. Ex No. 9. Id. 13, 2002) (not Crim.App. designated Feb. publication). 853, 390, 122 10. 506 113 S.Ct. U.S. L.Ed.2d (1993). 203 Id. Dretke, v. 8. Reed No. A-02-CA-142-LY (W.D.Tex., 22, 2004). Mar. a County few Bastrop non- Courthouse concerning

To his claim support later, eyewitness from District Attor- approached information weeks he disclosure Barnett, attached an from relayed Reed affidavit Penick Barnett’s disclo- ney and identifying Barnett. Bar- specifically sure without only by name, referring to her as a 23rd, nett morning April On 1996 at impression under the Keng client. was approximately 5:00 to 5:30 AM I onwas tried yet been and my that Reed had not way pulled park- to work. I into the Penick Attorney ing approached the Old Frontier. At that time District lot of information, prosecutor a knowing I man I Stacy Stites and a [sic] saw all of the evidence duty explore as Jimmie Fennell has a recognized [sic] Keng in front of a red standing pickup on the to see is done. was justice my I got side out of reaction to the dis- surprised walk. vehicle Penick’s my machine. I approached got the soda closure. coke, got into my turned and vehicle. that he had laughed He told me all a 4 door car leaving There was needed, and that he parking presumed lot as I turned in. I about anymore did not to hear want newspaper was deliveries’ [sic] He indicate that case case. did not newspaper people because rack was over, secured, a was conviction recognized Stacy I full. because I [sic] (which I if the expected would have case always thru her line at H.E.B. I went tried), only that he did already been a

worked at restaurant in front of anymore not need evidence. I H.E.B. found out about later weeks office, he Keng When to his told returned morning that the man her that in wife, office, his who him at assisted front of the Frontier was Jimmie [sic] response. Penick’s picture in Fennell because run was Giddings Times and News and that’s During Smithville 2001 and news- recognized when I him. Bastrop papers reported that the District prosecu- Attorney’s engaged also attached affidavits Bar- Office had attorney, Keng. case. Keng nett’s Steven torial misconduct Believ- formerly County Lee that the misconduct were Attorney, allegations a coun- ty adjacent defamatory, against filed a civil suit County. Keng Penick pressed during Barnett told him seeing papers.11 stated that When de- position part Fennell at Old taken as of the civil suit Stacey and Frontier Texas, that he Paige, August a town between Penick stated re- Giddings him at Bastrop, morning April Keng approaching 23rd. membered relayed Keng Bastrop County Barnett this information to Law Enforcement Center stating client early sometime in late 1997 or 1998 when and that he had a who knew Keng something case. Penick re- representing County. Lee about Reed’s telling Keng called that he had all of the Keng impor- that the information felt Penick newspaper reports tant information he needed. be- stating because of joke Keng making be- suspect Fennell was excluded lieved anything explain Keng could not cause stated because officials how he never having crime. Keng exculpatory committed the When was evidence. denied). Penick, pet.

11. See Cox Tex. Newspapers, L.P. v. (Tex.App.-Austin 219 432-33 S.W.3d 2003, Penick, In by October who was 2. Blackwell retired, then elaborated on his conversa- support of his claim Brady concern- Keng during tion a deposition or- ing the State’s failure to disclose Fennell’s magistrate dered the federal judge. in statement which he threatened to stran- Penick certain that the conversation gle Stacey caught he ever her cheating place took after Reed was convicted and him, Reed attached an affidavit from sentenced. Keng ap- He asserted that affidavit, Blackwell. In the Blackwell him proached January in or October of states that she is a licensed peace Texas Keng while was at the Enforce- Law officer training she attended a during ment arraign- Center one of the class at' CAPCO with Fennell in 1995. ments on a involving murder case Amanda class, During the Fennell sat behind her Sykes. Penick reached this conclusion some of his Continuing, friends. up when he called the District Attorney’s Blackwell stated: Office following deposition in the civil requested they pull case and the dates I also Jimmy’s girlfriend knew who was. involving Sykes’s case. Penick stated that class, day training One after I met a response Keng likely his prompted in parking woman lot who asked for articles; the news he was “ill-tem- Jimmy. I told he was inside and pered” perceived at the time and Keng’s get in, volunteered to him. IAs went “jab” statement aas at him. Penick fur- Jimmy coming met me out of the build- years ther claimed in twenty said, ing. Jimmy looked at us and Keng, has he has known never known you are telling my girlfriend? “What seriously when to take him and stated that Keep away from her.” Earlier that day, Keng “didn’t seem to sound serious about Jimmy and others in our class were this.” learning self Jimmy’s defense tactics. In response to Penick’s claim that my during friend had broken hand one Keng’s place long disclosure took after Jimmy of the After passed exercises. trial, affidavit, Keng, in his stead- parking go up me lot I him saw fastly maintained that the conversation girlfriend and could hear him telling place prior took Keng’s Reed’s trial. her in a commanding voice what to do. yet awareness that Reed had to be tried taking The men from that were prompted him to believe that the informa- class talk CAPCO about Jim- important tion would be to the State. nice, my’s girlfriend. They said she was Keng appointment reviewed his book to Jimmy talked but down to her identify the dates that he would been way demanding abusive kind of —in Bastrop County representing way. clients. His review showed that he had course, the end of the Towards CAPCO in Bastrop been between March 1998 and passed photographs instructors had out April Keng also recalled from real suicides and murders. Each conversation did not place during any take supposed say student whether pretrial proceedings held group’s photograph depicted their a sui- Sykes Keng dealing case. with an cide or murder. The had to break attorney assistant district on that class case and one of the rela- was informed that Penick was on vacation because students had a during at least one of tive who had committed suicide and that pretrial settings. Keng claimed that Penick partici- depicted did not relative’s suicide was one of pate Sykes. photographs. the trial of

719 her to death. him choke break, Jimmy on he would During the I overheard joking. he laughed then and said was guy this in class. He He talking to other said, girlfriend cheat- my “If I ever find information, I I this After learned me, ing I’ll her.” I told him strangle on and training academy police the checked caught did if he that he be Jimmy and Mary Best confirmed fingerprints. he would leave because joint in a train- Fennell had indeed been Jimmy said, just goes “That to then Bastrop I told the District ing session. shit; never know I won’t you’ll show information the Attorney’s Office about I’ll belt.” any prints leave because use a spoke I that I I believe learned. I com- Jimmy’s Attorney didn’t think much about directly to District Charles ments I Captain until heard John Vas- more anything I heard Penick. never quez discussing Jimmy’s murder of I what and do not know about Captain Vasquez my in girlfriend. Attorney the informa- District did with office and seemed to know lot gave tion I them. scene. He had murder worked Evidentiary Hearing 3. Live investigator connection with Court, to limited At direction this He me the details from murder. told Brady concerning Barnett issues indi- the murder scene and seemed to Blackwell, judge trial held evi- live Jimmy’s cate her girlfriend knew dentiary hearing March 2006. I then him the attacker. told details a. Barnett said. Jimmy

what on facts surround- expanded Barnett John Vasquez, who had retired from at sighting Stacey her and Fennell Department Austin Police before Reed’s morning the Old Frontier store on service, twenty-six trial doc- years after time, April At that Barnett was Fen- umented Blackwell’s recollection of working Papa’s Catfish restaui-ant at in an nell’s threat affidavit: Bastrop, located front retired, After I I in- private became knew because she H.E.B. She vestigator investigated several H.E.B., Stacey had shopped at the I to appointed homicides. her checked out. Rodney assist the defense team of Reed.

I original investigator was not the Paige Highway took Barnett lived case to limited only and was able do a Bastrop. Her Highway to into shortly his trial amount of work before twenty-five approximately commute took began. my I continued involvement nor- thirty Although Barnett to minutes. case until his conviction and with his p.m. 2:00 to mally p.m. 10:00 worked [sic] sentence was decided. at the p.m. to 11:00 shift p.m. shift 4:00 restaurant, 23rd, April she was sched- Sometime after Mr. Reed sen- on had been death, 6:00 to a coworker’s shift at happened speak tenced to I uled cover a.m., got 4:00 County Mary up Barnett woke at Deputy Travis Constable a.m. ready day, Stites for Best. talked about her children We house, at mother’s dropped that she them off case and she shared with me thirty forty-five training approximately in a class Stites’ located been stayed She fiancé, Jimmy Mary recalled from her house. Fennell. seconds twenty- twenty her mother’s house talking about domestic Bastrop, heading Before made remark minutes. problems. Fennell five 290 to the cheating Highway east caught Stacey that if ever Barnett drove direct-examination, Old Frontier store. When she arrived at On Barnett also re- a.m., prior at vealed that she had approximately store 4:45 she misdemeanor by convictions theft check. a man standing observed and woman in making gestures front of the store hand cross-examination, On Barnett acknowl- that indicated to her that the man and edged that news of murder was a type in woman were involved some of con- big report deal and that she failed to what flict. The man and the then got woman to officials, she saw law-enforcement opened into a pickup red when Barnett her Attorney, District or the Attorney car getting door. After from the soda Office, even though General’s she was machine, Barnett saw the head of the aware that authorities would have been sitting passenger’s woman in the seat of in having interested information. Con- statement, with her go up. prior the red truck down and back fronted sworn When car, which she claimed that she got Stacey she back her saw into Barnett heard at elevated, truck, Fennell the Old Frontier store between muffled voices from 23rd, 5:00 and 5:30 a.m. on the Barnett though even truck windows questioned anyone was about whether had her at car were closed the time. Barnett told her Fennell’s truck had been left store while truck was still a.m., high located at the school 5:23 at parked began in the lot and her commute it making impossible for Barnett to have to Barnett did not work. recall whether Stacey seen Fennell and with the red way she the red saw truck her into twenty twenty-five truck to away minutes Bastrop, she estimated that she ar- at the store between Paige 5:00 and 5:30 at early rived at work 5:30 a.m. a.m. In response, Barnett stated that no Believing that she saw one had talked her to about time murdered, day was reported she Barnett question frame. The to State continued parents her in January what she saw to Barnett about her time line: mother, Cowan, Marjorie 1997. Her ad- Q. you So it would taken [State] have Keng. vised to talk her to Cowan stated only get 45 minutes four kids ready, that Barnett told her she had knew house, get get them out of the them Stacey from the H.E.B. “the dressed, get to somebody them else’s young very— man that with her was was house, them visit with for 20 to 30 min- angry.” like he looked was Cowan could store; get utes and then is that if Barnett remember identified the your testimony? However, young man name. she re- A. I doesn’t live very [sic] mother far urging daughter called to talk Keng from I where lived the time. Keng’s she because knew father Q. you And then told us that it would Keng lawyer used as a several times. you taken 30 minutes to get have there; right? work On direct-examination Reed’s habeas About, yes. A. counsel, year later, Barnett that a testified certainly Q. Okay. you So wouldn’t January Keng met she when at like 5 o’clock or gotten work representing charge her on a you, 5:15 because that would have (DWI) and driving while intoxicated told right? just crazy; been him about what she saw. Barnett stated don’t early. A. I recall that it that she realized sometime after the 23rd fact, six, Q. the man Fennell closer to wasn’t photograph paper. saw his it? in another have seen it No, that she must I wasn’t that late. A. paper. if Barnett she had the State asked When testimo- Barnett’s To further undermine any in her affidavit information omitted pho- Fennell from a ny recognizing about Stacey gesturing as if and Fennell about Em- called State tograph paper, in the conflict, in a Barnett they were involved investigator Miranda, an with anuel that she had. admitted Litigation Division Postconviction Also, raising left unaddressed an issue General, testify. to Attorney Office examination, ques- the State on direct hearing, Miranda was for the Preparing DWI, arrest for Barnett about her tioned in the finding any articles tasked with had occurred before Barnett told which Austin, newspapers Bastrop, Giddings Stacey Keng that she had seen on 23, 1996, Stacey was April from date she was murdered. Fennell and morning found, May to body was murdered and her DWI, for Hall arrested Barnett Officer 1998, 30, day after Reed sen- was failing main- and Fennell cited her with to tenced, Stacey’s mur- that related 5, proper tain a lane on November or trial. Miranda was ordered der prior also executed a arrest war- Fennell ap- that picture to look Fennell separate rant in a case which Barnett peared any of the articles. Miranda’s charged with theft. Barnett consulted picture that Fennell’s research revealed Keng on the DWI ease and told him about re- any of the articles accompany did Stacey seeing and Fennell two months la- murder Reed’s trial lating or ter. Barnett stated that she had not been 30,1998. 23, 1996, May April happy acknowledged arrest and attorneys, Clay- Reed’s trial Garvie she had that been aware Fennell Jackson, had not both testified if against have testified her the case would Fen- sighting been Barnett’s aware of to trial. gone had April Stacey morning nell and on redirect, On Barnett admitted that she attor- during trial. Both 23rd before drunk when arrested and testified that, agreed information neys such her intoxication at the time of arrest disclosed, significantly been would have ability recognize affected her Fennell. strategy. Fen- altered their trial Because further She stated that she did execute verify his only nell was the source to against Fennell; the affidavit to retaliate 23rd, states April Garvie whereabouts she made connection between Fennell sighting he have used Barnett’s that would picture when Fennell’s she saw First, Fen- to establish reasonable doubt. in the paper. and name at home testimony nell’s that he had been Stacey left Testing actually sleeping Barnett had for work would whether exposing Fennell as recognized photograph impeached, Fennell from a in have been Next, liar. Giddings newspaper, as had a Garvie believed affidavit, have the State’s present- challenged in her the State defense could claimed showing line alive weekly paper time copies ed Barnett with 28, morning a.m. April 1996, May between 4:30 and 5:30 issued from Also, identify pa- opinion, of the 23rd. Game’s and asked her to which the distance that Fennell Paige, of Fennell. After Fennell in per picture included back to through get had to travel to looking papers, Barnett con- would have Giddings great not have did not been as picture appear ceded that Fennell’s Clay- during the trial. then theorized papers. Barnett stated that, Jackson testified if Keng she had Penick. known testified that Barnett never Fennell Paige, had been in she would gave him the impression that she had told investigated history Fennell’s for violence anyone else sighting that, about the and his associates closely more to deter- he thought that Barnett lying, mine if someone else Fennell drove given would have the information to the Bastrop High School to Giddings. Penick. Garvie testified that he would have taken timing With the of Keng’s disclosure to another look into Dr. Bayardo’s time of Penick as a hotly issue, contested both death, Clay-Jackson stated that she parties attempted to nail exactly down would have had them medical experts ex- Keng spoke when to Penick. Confident plore the forensic evidence for anything spoke that he to Penick before Reed’s place that could Fennell at the scene of the trial, Keng stated that he informed Penick offense. With Barnett’s sighting, Garvie sighting about Barnett’s in February or believed that Fennell’s exclusion as a sus- March of cross-examination, 1998. On pect through DNA would have made a challenged State Keng spoke whether difference because Fennell had no motive Penick before Reed’s trial noting that rape just if he going to kill Keng previously stated in an affidavit Clay-Jackson that, her. stated had she that, according schedule, to his he had known the information in Barnett’s affi- been County Courthouse davit, she would encouraged Reed to representing other in clients March and testify However, his defense. on cross- April before, immediately and dur- examination, Clay-Jackson stated ing, Reed’s trial. cross-examining When previously admitted that she did not want Keng about his prior statement in which Reed to testify because he had several recognized he stated that he impor- prior sexual-assault offenses that the State provided by tance the information .of Bar- against could have used him. newspapers reported nett because Parroting statements, prior his Keng suspect, Fennell had been eliminated as a testified about the facts surrounding Bar- presented Keng the State with the first disclosure, nett’s subsequent his attempt news articles from Austin and Gid- to inform Penick of the disclosure before dings papers report particular this in- trial, and Penick’s reaction. He mid-May formation from 1998. The State recalled that Barnett had come to see him then Keng possible asked whether it is about the family-law DWI and a matter that he did sighting not disclose Barnett’s and that he up did not end representing until after In response, Keng Reed’s trial. her on the Regarding DWI. his attempt stated that he believes that his statement disclosure, to inform Penick of Barnett’s suggests memory is cumulative Keng added that he told Penick that he people he and that when wrote the affida- could him give his client’s name and tele- vit, the having information about Fennell phone number. He chose to tell Penick suspect published. been excluded as a about Barnett’s in person disclosure in- He added that Penick told him that never calling stead of him because the informa- Reed’s trial and that he believed was over important, Penick, tion was he knew over, if it had been Penick would have told charge Penick prosecution. him that.

Keng convey stated that he failed to anyone information to Keng questioned par- else in the District was also about his Attorney’s ticipation Office or in the film law-enforcement “State versus Reed.” officials, even after he graduate University was rebuffed a at the While student investigation Texas, the defense Ryan Polomski made the film for mation with Penick exculpatory. that it was Keng He revealed project. thesis interviewed Keng relayed the information recalled that videotaped for the film and the interview. passing Keng he and from Barnett Polomski maintained that the video camera leaving after docket the courtroom room he conducted was visible years after Reed’s approximately call four testi- Keng. his interview Polomski cross-examination, Penick was trial. On that he was uncertain fied whether thought Keng’s allegation asked what he Keng project informed the thesis the information that he had disclosed documentary possibly become film sighting him in 1998. about Barnett’s be And public. that would shown to Keng “telling big Penick said that Keng Polomski did not inform when the that, acknowledged then lie.” Penick public. film was later to the shown When reelection hi he supporting Keng’s the Keng questioned by was State about he stating wrote a letter that knew film, appearance documentary in the his Keng years and for fifteen worked he Keng stated that unfamiliar with was that, opinion, very compe- Keng in his “a film he and that did not know who ” honest, tent, professional prosecutor.... him interviewed or where the camera was Explaining opinion Keng, his current located. as Keng Penick that honest stated was Penick that testified when he receives prosecutor changed but when he became a exculpatory information, he turns over attorney, dealings and his defense trial, During the defense. he was attorney good. him a as defense approached a woman named Elizabeth why counsel asked Penick Reed’s habeas Keehner, and she told him that she did present during depo- he used the tense believe that Reed guilty murdering was recalling sition in the civil case when that Stacey. Viewing Keehner’s statement Keng he told that he “has” all of the information, exculpatory Penick stated against he Reed. In re- needed he that told Tanner or someone in law explained sponse, question Penick that enforcement about the that statement and he by surprise took him and that failed to working someone for the State took a passed along up Keng clear fact that statement from her. The statement was involving the information Barnett four then turned over to the defense. Wolfe During years after Reed’s trial. that de- testimony, stating corroborated Penick’s position, Keng he realized that made the that she interviewed Keehner and obtained during Sykes disclosure case. Know- an exculpatory statement later was this, ing pulled Penick later the District disclosed to the State. She also stated Sykes case and Attorney’s file de- expressed that Penick never “an attitude Keng termined that would have been at got everything that we’ve we need.” January between and Octo- courthouse Barnett, Regai'ding Penick testified ber 2002. he did not information involv- receive that the suit Finally, Penick stated civil during Barnett before or Reed’s trial. allegations other and that dealt with fact, Penick stated that he did not learn alleged suppression sighting of Barnett’s Keng the client Bar- referred to was suit. provide did not basis Keng’s nett until he read affidavit. Penick b. Blackwell that, maintained had he informa- received he sighting, testifying, tion about Barnett’s reiterated When Blackwell investigated it and shared the infor- and added to the statements made her affidavit. Blackwell stated that class on one knee and needed getting assistance alphabetically academy seated in the up. Blackwell returned to work and told Allred, she was seated near Angela Madrono that appeared Fennell put- to be Larry Franklin, and Fennell. When ting on an act. She then informed him Blackwell rewriting her pointed to assist Reed’s trial attorneys.

belt. “to Blackwell found Fennell be ex- introduction, got From his Blackwell tremely offensive when it came to atti- impression Vasquez actively was in- in particular, tude towards wom[e]n in investigating Stacey’s volved murder only police women in work but wom[e]n and that he on working was behalf general.” She also him be “found to con- murdering individual accused of Stacey. ceited, arrogant, regarded and he Vasquez When told Blackwell that police having himself as a power officer belt, strangled had a been “bells and with way over others in a that police officers head, sirens went in Blackwell’s off” and power.” should not have Recalling the immediately Vasquez incident in Blackwell told about parking lot which Fennell to stop talking directed her what Fennell had said in class. Presented Stacey, to Blackwell testified when Fennell got with the cadet-class roster and CAPCO Stacey, into the truck with she could tell photograph, class Blackwell identified the expressions from his facial he was right cadet who sat as on Fennell’s Chris- yelling at her. topher Vacillating, Dezarn. Blackwell la- ter stated she could not remember who murdered, When was Blackwell to Fennell had made the statement working as a Deputy Constable for proposed seating that the chart Rocky County. Madrono Travis The refresh her recollection. Bastrop County Department Sheriffs called Madrono’s and requested office help cross-examination, On Blackwell con- for Stacey’s escort funeral. This ceded that notify she failed to authorities time first that Blackwell had investigating Stacey’s murder of Fennell’s Stacey’s learned about murder. Blackwell statement though even she believed that permission received use to one Madro- significant light the statement was vehicles, deputy, no’s and another who had peace officer, profes- her status as a her a CAPCO, been cadet with Blackwell at training experience, sional well as accompanied to Blackwell the funeral. her personal experience with Fennell. Blackwell attended the funeral and saw exiting Vasquez Fennell the church. As Fennell testified that he visiting casket, Stacey’s collapsed followed Fennell with Madrono few weeks after Reed’s exculpatory infor- would deal with trial, following conclusion his official Penick discussing investigative duties. He case. relating to Reed’s Sanderson mation Reed’s case with Madrono Blackwell been on that Penick “would have stated him and told him about Fen- approached on rice.” Penick stated like white Vasquez nell’s statement. then drove to him document Vasquez never handed and confirmed that Blackwell CAPCO Reed case after Reed’s pertaining academy together. had at the Fennell been trial. Vasquez documented his conversation with De- testimony, Blackwell’s Contradicting Contrary in a memo. to the Blackwell him that Fennell never told zarn testified pass- in his statement made affidavit about girlfriend strangle his that he would Penick, along at the information him. cheating if he caught belt Vasquez hearing, gave stated he Sanderson, assis- memo Forrest a chief Franklin, Black- Larry another one of attorney County tant district in Bastrop prior and Fennell’s classmates well’s a member the trial in Reed’s team CAPCO, testified that he and Blackwell case, a week or so after he drafted the friendship graduation after maintained Vasquez memo. testified that he believed call one another. and that two would given that he had to Pen- information murder, after Blackwell Sometime ick, sitting but when he saw Sanderson asked him if he heard called Franklin and courtroom, that he had remembered Together, the murder. Blackwell given in fact the information Sanderson. Franklin whether Fennell questioned Vasquez disclosing was comfortable the in- Stacey. murdered The had other two Attorney’s formation the District Office because, during one topic, he had Penick conversations this and known and Sander- eight years, conversations, son for or nine that it believed told these Blackwell important pass to information Al- Fennell’s Franklin about statement. them, along they to and was confident though Franklin had sat the left do it. something Vasquez would with did class, not hear Franklin did Fennell Clay-Jackson. not call Garvie or When make statement and learned Fennell this gave if he to the asked the information only through his about conversation defense, previous investigator for that, Though Franklin stated Blackwell. Olney, Vasquez Duane stated that he be- officer, he felt that there was peace as a he lieved he had done so when obligation report such informa- ethical into him on the bumped street several tion, that he to do so. he admitted failed given months after had information he investigate Missy assigned Wolfe that he in- Vasquez to Sanderson. stated validity of Blackwell’s contentions Reed’s give tended to the information to however, the class attorneys. Vasquez, began getting appellate the State. She attorneys. CAPCO, to reach out to Reed’s failed from which indicated roster repre- Vasquez finally spoke attorneys twenty- class had Fennell Blackwell’s senting Reed after initiated contact members. and another investi- nine Wolfe him in 2003 or 2004. in the all the individuals gator contacted class, and Blackwell. including Fennell Vasquez testified that did not

Sanderson They tape-recorded or obtained written that, him the give information issue everyone Fennell except information, statements him such Vasquez given that none Blackwell. testified Wolfe certainly remember it. Sander- twenty-seven in the class corrob- expressed opinion people son also how orated Blackwell’s contentions regarding owe deference to the trial court on Fennell. finding such a or conclusion? May the disregard finding Court or conclu- Clay-Jackson stated that if she had sion in its entirety? found out about Fennell’s statement within (cid:127) Assuming, arguendo, that numerous filing time for trial, motion for a new findings conclusions, or parts would have moved for a new trial on that thereof, supported by are not the rec- basis. ord, how should this affect the level of Judge’s Trial Findings Fact, findings deference to the and conclu- Law, Conclusions of and Recommenda- sions as a whole? tion parties We also ordered the to address At the close of the evidentiary hearing, gateway-actual-innocence whether Reed’s the trial judge, who succeeded the judge claim requirements satisfied the under Ar- presided trial, who over requested 11.071, 5(a)(2). ticle Section parties proposed submit findings of fact and conclusions of law. Adopting Analysis IV. the State’s proposed findings of fact and law, conclusions of explore which we will Brady A. Reed’s Claims Satisfied greater below, 5(a)(1) detail the trial judge 11.071, recom- Article Section mended that deny we relief. 1. The Standard protect To

III. criminal defendant’s Issues for Resolution right trial, to a fair the Due Process When this case us, was returned to we Clause of the Fourteenth Amendment to noted, after conducting a careful review requires United States Constitution record, that a few of the trial judge’s prosecution exculpatory to disclose factfindings were either unsupported by impeachment evidence to the defense that appeared, fashion, record or in some punishment.12 is material to guilt either misleading. be Because of this and the This rule of in 1963 in Bra originated law sharply conflicting testimony offered at the dy Maryland v. clarified and has been and evidentiary hearing, we filed and set this progeny. Applying further refined in its case for submission to decide whether 1995, Court, the rule in the Supreme in Reed is entitled to relief Brady. under To Kyles Whitley, v. held that the rule encom facilitate our resolution of Reed’s claims on passes to prosecu evidence unknown the us, the record before we par- directed the tion but to known law-enforcement officials to ties brief the following issues: and working others on their behalf.13 (cid:127) Assuming, arguendo, the court has entered finding a of fact or conclu- present incarnation, Under its to sion of multiple law that has sentences in showing Brady violation, succeed or phrases (1) and that a portion of the individual must show that the evidence finding or supported by conclusion is is favorable to the accused because it is record, (2) the portion exculpatory while another is or impeaching; the evi not, to what extent does this Court dence suppressed by government the Greene, 263, 280, 419, 438, 1555, 12. Strickler v. 527 U.S. 119 13. 514 U.S. 115 S.Ct. 131 (1995); State, (1999). S.Ct. 144 L.Ed.2d L.Ed.2d 286 490 see also Thomas v. (1992) 841 (tracing S.W.2d 402-04 histo- rule). ry developments Brady and of

727 a trial stances, accept defer to and be- we will acting government’s persons or of conclusions half, -willfully; findings or and of fact and inadvertently judge’s either (3) by the rec- supported the of the evidence result- are suppression law when (i.e., materiality).14 of prejudice Evi- review independent ed our ord.21 When punishment to or guilt judge’s is material dence that the trial the record reveals probability is a “only there reasonable supported findings and conclusions are to that, had the evidence been disclosed record, may our author- exercise by the we defense, proceeding the result of the the find- contrary to make or alternative ity 15 “A 'reason- have been different.” and conclusions.22 ings probability’ probability is sufficient able is answering the first two In out- to confidence undermine brief, parties to sues we ordered come.” re it appropriate conclude that is we Thus, forty years, over our writ we For our precedent. main faithful to consistently jurisprudence recognized has findings deference to afford no will that this is ultimate factfinder Court supported by are conclusions that proceedings.17 The trial corpus habeas ordinarily defer to those record and will “ ‘original factfin- judge habeas is the finding or are. conclusion So where ” 18 the role of the trial Summarizing der.’ phrases, or we multiple sentences contains judge, explained judge we have sentences pay deference to the will evidence, orga

is collector grounded in the record phrases that are of materials, nizer the decisionmaker reject adopt refuse to those or testimony may as to neces what live be independent not. our review are When sary, disput the factfinder who resolves findings the record conclusions reveals issues, ed fact judge applies who record, by the we unsupported that are facts, specific findings law the enters will, understandably, skeptical become law, may of fact and conclusions of findings and conclu reliability to the specific make a recommendation cases, will sions as a such we whole. deny grant or relief.19 cautiously ex with a view toward proceed ercising judgment. our And when we own Uniquely situated observe the demeanor necessary, enter alterna first-hand, the trial deem we will judge witnesses contrary and conclusions position credibility findings the best assess tive witnesses,20 Furthermore, Therefore, circum- supports. most record 281-82, Strickler, parte Simpson, 14. Ex S.W.3d at 668. 527 U.S. at 119 S.Ct. 19. Alstyne, parte at 817. 20. Ex Van 239 S.W.3d 682, 667, Bagley, v. 15. United States 473 U.S. 3375, (1985). 105 S.Ct. 87 L.Ed.2d 481 Id. 21. Id. Adams, (citing parte 22. Ex 768 S.W.2d 288 824, (Tex. parte Young, 17. Ex 418 S.W.2d 829 Davila, 543, (Tex. parte Ex 530 S.W.2d 544 Adams, 1967); parte Crim.App. Ex 768 S.W.2d 1975); parte Bagley, Crim.App. Ex 509 S.W.2d 281, parte Van (Tex.Crim.App.1989); 288 Ex 332, 1974); (Tex. parte Crim.App. Ex 335 815, Alstyne, (Tex.Crim.App. S.W.3d 817 239 Williams, 566, (Tex.Crim. S.W.2d 568 486 curiam). 2007) (per White, e.g., parte 160 App.1972)). See Ex (Tex.Crim.App.2004). S.W.3d 51-55 parte Alstyne, 239 at 817 18. Ex Van S.W.3d parte 136 (quoting Simpson, Ex S.W.3d (Tex.Crim.App.2004)). when we determine that the trial judge’s ture and number of unsupported findings findings and that are sup- conclusions may conclusions render findings ported by the record require clarification and wholly conclusions unreliable and be- may or supplementation, we exercise yond our repair. circumstances, Under such judgment findings and make and conclu- may we elect to take upon to ourselves sions that the record supports and that are conduct all of the factfinding and to issue a necessary to our independent review and ruling our explaining application of the law disposition. However, ultimate where to However, the facts. note we that it will given finding or is conclusion immaterial to only be under the rarest and most extraor- the issue or is our disposition, irrelevant to dinary of circumstances that we will refuse may we decline enter an alternative or any accord deference whatsoever to the contrary finding or conclusion. findings and conclusions a as whole. decisions,

As recognized by our this case, in adopting this pro- State’s standard unpar- of review accounts posed findings of fact and conclusions of position alleled of judge the habeas law, judge the trial concluded that directly assess a witness’s demeanor. Reed relief entitled to under Bra- listening testimony, When the habeas (1) dy he failed because to establish that judge is tuned in to something how is (2) suppressed the State evidence and being said as much as to what is being guilt. was material to We agree judge acutely said. The is aware of a with judge’s legal the trial conclusion that inflection, of witness’s tone voice or facial Reed has not demonstrated that the State expressions, mannerisms, body lan- suppressed evidence and therefore find it guage. no There is doubt that type this of to render a unnecessary regard- decision assessment, the essence which a of cold materiality. reviewing So in the trial rarely record captures, ais determinative judge’s factfindings, we confine will our factor in trial judge’s credibility assess- factfindings discussion of the to those that factfindings. ment and are to our relevant determination that the State did any not withhold favorable infor- Next, we conclude that when mation. numerous, all, findings but and conclu record, sions supported by are not Our independent review the trial determination judge’s remaining (i.e., level deference to findings fact findings resolution) be to the accorded and conclu those to our irrelevant demon- sions as a is to whole be made on a case- strates largely supported are by-case It impossible basis. A establish record. select these findings, few of any however, litmus type of test for determining are inconsistent the record when and under what misleading. circumstances the are For somewhat exam- may ple, level of respect overall deference be affected to Barnett’s habeas testi- unsupported findings mony, numerous trial judge found two conclusions. Because no cases are Barnett the fact was confronted with alike, the level of deference accorded picture to Fennell’s did not appear findings the and as a relating conclusions whole articles to murder 24, 1996, 30, where are findings sup April May 1998, numerous not from through ported by depend the record on will “Barnett conceded that Jimmy she knew thorough analysis specif review and Fennell ‘something completely from inde- legal pendent i.e., ic facts in a given newspaper,’ issues involved of the Giddings case. may The case where the finding unfairly arise na- DWI arrest.” This morning disap- testimony. nell on the that she Barnett’s Even portrays According Barnett that she to this conver- though peared. Keng, admitted knew arrest, February Fennell from her DWI she was in sometime place sation took recognized that Fennell as 1998, adamant floor of or March of second man she saw at the Old with Courthouse, before County in the photograph Frontier store from a that, began. Keng Reed’s trial testified newspaper. judge While the trial en- and told response, laughed Penick find, credibility based on her de- titled he him he had all evidence [t]he ‘that termination, recognized that Barnett Fen- needed, just he want to hear didn’t arrest, solely especially nell her DWI about it.’ inability Barnett’s given specif- mother’s testified that he recalled Penick Charles ically confirm Barnett’s identification of during Keng, with having a conversation Fennell, trial justified not judge was him that he had a client Keng which told finding as a matter of fact that Barnett Reed something that about the knew point. this conceded We attribute this recalled this conver- case. Penick that (and inaccuracy findings) other like to the Keng place took about four sation with fact that the generated proposed State years trial in enforce- after the the law findings wholly rep- are therefore during ment call. Pen- center docket interpretation resentative of the State’s Keng ick he thought stated that the evidence. Mindful of the role of an seriously.’ take joking and ‘didn’t him advocate, the judge trial as a neutral arbi- that Keng that he Penick testified told carefully should have ter more scrutinized against he enough had evidence proposed findings State’s ensure hear Pen- need to that....’ ‘didn’t they accurately reflect Keng approach ick testified did adopting the record before them verbatim. him Martha regarding with information Regrettably, judge’s trial decision prior to, during any point Barnett at adopt proposed findings State’s Reed’s trial. unnecessarily conclusions verbatim has complicated our independent review of the 16, affidavit, Keng April In his case, Nevertheless, record. in this con- we stated he believed the information clude that the few instances which the him im- Barnett had shared with ‘was findings are or misleading inconsistent do reports portant newspaper because justify totally disregard decision to ex- that Mr. Fennell had been indicated findings supported by that are en- suspect cluded as a because law germane are record and to our resolution could not how he explain forcement Brady of Reed’s claims. Keng the crime.’ stated committed 2. Discussion regarding information Fennell’s elimina- came in the news- allegation suspect

Relevant to tion as a out spoke Penick suppressed paper before he the State information concern During cross-examina- sighting Barnett’s and Fen- Barnett. tion, nell, trial the fact judge Keng found: confronted with reporting that Fennell that, articles Keng Stephen testified at some out as a came Barnett, suspect been eliminated after point speaking with after he May several months Bastrop County Attorney, told District Penick. spoken to have Penick that he had a client claimed Charles who May [Stacey] Reed’s trial concluded claimed have seen with Fen- Stephen Keng porting testified that he did not Fennell’s exclusion as a suspect, participate making of the a documen- and that the information therefore became tary in the instance part movie case. memory [sic] of his collective the about testified, Keng ‘News to me.... I don’t case. impetus Keng’s Because the behind they know who interviewed me or where directly disclosure to Penick is the tied to had a camera.’ disclosure, timing of that anything his Ryan credibility selves to undermine his pro- Polomski testified that he about documentary duced film the impetus about the in- also undermines his credibili- Further, Stephen ty timing. Keng stant about Keng case and the was inter- when for given viewed on camera that film was to offer a rea- opportunity and that the articles, parts son, of that independent newspaper interview were featured in of significance the film. for the recognizing of Bar- he he sighting nett’s claimed that when proven Reed has not that the Bastrop did, to offer Keng failed alternative County Attorney’s District Office inwas explanation. Accordingly, the judge trial possession regarding of information justified finding Keng’s was recollection prior during Barnett or trial. about the the disclosure to Pen- timing Clearly the trial implied by judge’s find- iek unconvincing. to be that District Attorney’s Office not in possession was information Next, judge’s findings the trial about regarding during Barnett before or trial is documentary Keng’s appearance Keng that determination failed to dis- suggests film “State Reed” that versus close that Barnett relating had information Keng untruthfully when he denied testified to Reed’s case sometime until after Reed that he for the documen- was interviewed was convicted and sentenced. And what testimony tary reading film. Our necessarily from this flows is the trial unlikely Keng that indicates it is realized judge’s implicit Keng’s that determination documentary in a film participating was testimony timing about the of the disclo- public. that to the Po- would be released memory sure to is not Penick’s credible. telling lomski that he recalled testified The trial judge’s credibility determination Keng graduate that he student record, supported by is we there- University of Texas and that he was fore findings. choose to adhere working project thesis for a Master However, necessary clarify we find it of Fine in Film and Arts Video Production. findings and supplement pertain specifically Polomski recall was unable to Keng’s credibility. whether he to the film as a docu- referred

First, relating mentary project or finding Keng’s rec- a thesis stated ognition he did not talked about importance Barnett’s believe distributions, screenings. any showings, information suggests unlikely However, Keng truly significance support . does realized the record broader, Keng’s sighting finding of Barnett’s until sometime in testi- implicit earliest, the film May mony at the for being when news- interviewed un- papers began reporting Keng first that Fennell was not Even credible. film a documen- suspect. had been excluded as This de- aware that Polomski’s observing regardless tary, judge, termination after is reasonable trial demeanor, free to disbelieve Keng’s explanation Keng’s that he wrote the affi- being took years place, Keng’s davit after the events in- denial about interviewed a film Reed’s case. And even cluding newspapers began re- devoted to prior his statements tioned Penick about though subject this matter was unrelated sighting, the to the disclosure of Barnett’s cross-examination: on “ Keng’s take permitted trial to judge was any con- you ‘Did Q. Line 18: account veracity on this issue into when Keng before the with Mr. versation credibility timing his the of assessing the time Mr. Reed Reed trial between the disclosure. to trial the time it went indicted and was also found said judge expressly Keng’s The trial Mr. who about a client of be trial Penick to credible. Because the had Stites that she seen positioned to Penick’s judge morning witness Jimmy together Fennell first-hand, the demeanor we conclude that your an- And of Ms. Stites’ murder? ” credibility judge’s trial determination ‘no.’ swer was are the factfindings supported resultant A. That’s correct. record. “ ‘You Question: don’t Q. right. All ” find that argues Reed that we should it or And happen?’ remember it didn’t “ Keng Keng, more credible Penick. than is: ‘I don’t remember it your answer ” Reed, to in according had no involvement happening, happened.’ I don’t think it nothing gain case and has “ you Question: ‘Okay. And so didn’t case; of his placed the outcome this he has you had all the evidence tell him that credibility reputation on line you you want to needed and didn’t Penick, on stepping forward. the other ” anything hear more about the case?’ hand, should not be found credible be- remembering “T Answer: do kind cause, he testified at habeas making that statement passing [sic] hearing, he had a financial in the interest ” Steve.’ case, memory proven his has selec- be this to correct testi- Because Penick failed tive, previously Keng’s and he endorsed only mentioned, the first mony and honesty. character for time, during subsequent deposition lawsuit, Pointing to Penick’s Reed civil years after place the disclosure took four that, if argues Penick found to have trial, cred- argues Reed we should case, suppressed evidence the im- this carefully testimony, “not his initial case, pact on Penick’s was unre- which presented later.” crafted answers months hearing, be solved at time of would that Penick could Finally, argues Reed that, if devastating. Reed claims his case Keng lying accusing not reconcile about failure to were reversed due Penick’s letter timing disclosure with evidence, Brady jury disclose the civil Keng’s support reelec- written unlikely case be Penick to award tion in 1996. regardless partic- of whether the damages, suppressed subject ular the trial This information was before of Penick’s lawsuit. any free to resolve judge, and tendency contradicto- toward bias Penick’s inconsistent testimo-

Regarding by Penick in favor of ry statements made disclosure, points to ny about finding reviewing After Penick credible. evidentiary-hearing testimony ad- Penick’s filed in newspaper petition articles he made dressing first statements suit, the alle- the civil Penick testified during depo- disclosure about the involving nothing Barnett had gations to the Referring sition in the civil lawsuit. contentions civil suit. Reed’s deposition from the do with the transcript civil-suit this case on potential impact hearing, attorneys ques- Reed’s habeas 732 speculative,

Penick’s civil suit Finally, and the regarding the letter endorsing judge trial permitted, hearing Keng’s reelection, was in Pen- explained Penick testimony issue, Keng ick’s that, was a determine friend his and based personal that his opinion interests the civil on his of Keng suit at the time he letter, improperly did not influence testimony. his wrote he being was truthful he said that Keng when honest The judge liberty trial also at to person. Penick stated: the time he “[A]t Penick’s testimony explaining believe his in prosecution, way, I felt that but failure state Keng’s took disclosure he when became a criminal lawyer defense place during after Reed’s trial the civil-suit he changed, changed he an awful lot.” deposition and chang- Penick’s reason for that, Penick added had he known what he personal opinion his of Keng. Elabo- Keng, now knows about he not would have rating Keng’s on his failure to state that written the letter. years disclosure occurred four after Reed’s Next, although question we suit, trial he deposed when was the civil whether Fennell’s statement to Blackwell Penick admitted he up failed to clear falls within Brady’s ambit it because was during deposition. matter He ex- alleged to have been disclosed until plained questions that the initial regarding may after Reed’s trial and therefore be Keng’s caught disclosure him guard off more properly newly characterized as dis and he did remember the conversation evidence,23 covered we will nevertheless at questions first. The then him prompted defer judge’s credibility to the trial deter to remember the conversation Keng, with minations and our factfindings because in during questioning, thought he dependent review the record establishes about it and remembered that it occurred supported by are the record. Sykes being prosecuted, when four Concerning credibility, Vasquez’s the trial years after Reed’s trial. judge following: found the I what it was. I back knew case went cross-examination, During Vasquez was that case and I out found what dates confronted that he fact had we have been over here be- 2, 2005, January sworn affidavit then, cause I remembered back that he ‘spoke directly to Distinct Attor- deposition, first of the I conversation ney Vasquez Charles Penick.’ testified Keng had it with Steve and was over at that he thought the time he’d center he law enforcement when was give[n] to Penick but remembered representing Sykes Amanda on mur- sitting Sanderson saw der case where she killed her husband. courtroom that he had the infor- given him, mation to and not to Penick. Keng’s relating Because first affidavit John Charles Penick testified that Vas- 2002, in April disclosure was made quez approached never him with infor- that, Penick assumed based on his review pertaining mation to Reed’s case. case, Sykes the docket dates for the Keng have must made disclosure be- Forrest testified that he did Sanderson January and April tween 2002. not recall ever him Vasquez approaching Certiorari, generally § Appeals See Petition Writ cuit Court of in 42 U.S.C. 1983 for Attorney's rights improperly post- District the Third Judicial civil action "created for Office District, Osborne, -, right et al. v. - U.S. 129 conviction access to evidence under (No. 08-6), grant extending S.Ct. 172 355 Due L.Ed.2d Clause Process doc (arguing Brady ed progeny.”). Nov. that the Ninth Cir trine of ... and its about Reed’s case. information that he Sanderson testified (2) evidence, of the preponderance Vasquez rememberfed] come States but a violation United pertaining to him with information juror could have no rational Constitution case. a rea- guilty beyond applicant found the sonable doubt.25 in Vasquez’s the inconsistencies Given the merits obtain review of To him testimony finds not to be Court claim, appli barred an procedurally of a credible. threshold, facie prima a cant must make testimony of This Court finds the Sand- a showing by preponderance innocence Penick, erson, to be credible. Wolfe Schlup A of inno claim of the evidence.26 independent constitutional cence is not an This Court finds that the Coun- claim; a gateway through it “a which did ty Attorney’s pos- District Office not petitioner pass must to have his habeas pertaining Mary sess evidence constitutional claims con otherwise barred prior during Blackwell to or trial. Best Article sidered on the merits.”27 Because Vasquez This Court finds that John did 5(a)(2) 11.071, re Section enacted provide pertaining Mary evidence sponse Supreme Court’s decision Bastrop County Best Blackwell to the set Schlup,28 conclude standards we Attorney’s District Office until after evaluating a gateway-actual-inno forth for Reed’s trial. Supreme announced cence claim our consideration guide Court should the foregoing, Based on hold that the we 5(a)(2). There such under Section claims supports judge’s record the trial conclusion fore, inno to mount a credible claim of that the State suppress did not favorable cence, alle support an “must applicant during evidence trial in of Brady. violation reliable gations of constitutional error with Accordingly, proven Reed has not that he it be scien exculpatory evidence—whether is entitled to relief. evidence, trustworthy ac eyewitness tific counts, physical critical or evidence—that Schlup B. Reed’s Claims Under Article appli trial.”29 The presented was not at 5(a)(2) 11.071,Section that, establishing cant the burden of bears evidence, “it is more light of the new our Legislature’s Under codification of juror no likely than not that reasonable Supreme v. Delo24 Schlup Court’s stan “be guilty rendered would have” verdict dard, may we doubt.”30 To determine yond reasonable grant consider the merits of relief whether has satisfied the bur applicant subsequent application on a unless the den, “ we must make holistic evaluation evidence,’ new, sufficient application specific contains ‘all the old and incrimina ting exculpatory, regard without establishing facts that: 315, 851, 851. Schlup, 24. 513 U.S. 115 S.Ct. 130 L.Ed.2d 27. 513 U.S. 115 S.Ct. (1995). 808 Brooks, parte 219 28. Ex S.W.3d at 399. Ann. art. 11.071 25. Tex.Code Crim. Proc. 5(a)(2) (Vernon Supp.2008). § Id. at 324. Brooks, (Tex. parte 26. Ex 219 S.W.3d Crim.App.2007). 30.Id. at 327. necessarily examining pre

whether would be admitted We start the evidence admissibility under ‘rules of that would application sented in Reed’s initial ”31 govern at trial.’ We must then decide accompanying findings per of fact that are jurors, how reasonable properly who were tinent particular to the items of evidence. instructed, overall, react to the “would that, reviewing note this its We newly doing supplemented record.”32 In entirety, judge trial found that so, may credibility we assess failed to he is prove actually innocent at the applicant’s witnesses who testified stringent under the more standard trial.33 parte Herrera and Ex Elizondo.36 case, In this we must determine whether a. Robbins’ Statements gateway Reed has satisfied his burden un- (a)(2) permit subsection so as to der us to First, Reed submits two statements Brady proeedurally review his barred from Robert Wilma Robbins that claims, ineffective-assistance-of-counsel given police in March 1998. Rob- The claims, and other constitutional claims. binses the Austin American- delivered in deciding And whether Reed has met his Monday Saturday in through Statesman burden, to the trial judge’s we will defer route Bas- Bastrop. Their included the findings appro- and conclusions when it is trop High A month Sta- School. before priate. cey’s murder, gray/ the Robbinses saw a In support gateway-innocence of his Tempo parked blue Ford in the School claim, Reed relies on numerous items of parking days during lot a few the week trial, presented evidence not at some of 5:00 between 4:30 and a.m. The car was prior his applica which were offered murder, day Stacey’s not there on the seriously tions. doubt that While we some parked at never saw the School of the evidence cites constitutes new also Stacey after was murdered. Robert purposes inquiry,34 of our we stated saw a that he Chevrolet full-size give Reed the of all doubt will benefit truck, white, in the which he believed was all of consider the evidence was not days during lot or three He two week. trial, namely at presented the evidence Stacey’s truck the day did not see the in all presented applica three again it in murder and did see the lot it for another day tions. We will leave Stacey’s after murder. evidence, exactly pre decide what new trial, bemay sented at considered in the found that judge The trial Carol Stites’s 5(a)(2)’s purview of Section threshold Stacey using the testimony rarely showing of innocence.35 Tempo to to work because its drive judge credible. The Application unreliability was trial 1. Reed’s Initial Bell, 518, 537-38, approaches adopted federal courts House v. 547 U.S. 126 circuit 31. 2064, (2006) (quoting 1 defining Schlup S.Ct. L.Ed.2d stan- 165 new evidence under 327-28, 851). Schlup, dard). 513 U.S. at 115 S.Ct. 538, Id. 2064. 32. at 126 S.Ct. Brown, parte Compare S.W.3d 35. with Ex 205 538, (discussing (Tex.Crim.App.2006) 545-46 539, Id. at 2064. 126 S.Ct. purposes of what new evidence for constitutes a of innocence Ex substantive claim under Note, Nelson, Jay Facing up Wrong- 34. See Elizondo). parte Broadly Defining Convictions: “New” Evi- ful Gateway, dence at the Innocence Actual 1996). (2008) Hastings (surveying (Tex.Crim.App. L.J. 718-20 36. 947 S.W.2d 202 that, Stacey’s house several [Fennell] [her] determined because of drive also schedule, she could not have at she had been in the same truck that work occasions Bastrop High School between 4:30 and in.” Stacey seen [Reed] that, judge a.m. The trial found 5:00 that, when Aldridge stated Meller Marie Tempo regis- a 1988 April Ford house, Stacey came at a friend’s she was Gonzalez, David who worked for tered to friend identified picked up Reed. Her High April School 1996. As re- Meller Marie girlfriend. as Reed’s sult, evi- judge the trial found no credible Stacey from the H.E.B. Aldridge knew driving Carol’s ear dence 13, 2000, Aldridge Marie On June Meller High to the School the month before her gave a second affidavit to State elabo- death. The statement. rating on her first sworn truck, Concerning the white the trial woman, up pick young whom she saw judge found that when Robert was cross- truck, Reed, had driven full-size worked trial, that, at examined he admitted H.E.B., at the customer-service center days questioned he was two after Hispanic and was “best friends” 'with murder, investigators he told Rose, at woman named who worked Bastrop truck silver. The Police “projects” in Bas- H.E.B. and lived investigated the from Chief information only judge trial found that the trop. The Robert and that the truck concluded be- Stacey belonged to Fennell truck drove longed Further, to a school employee. Fur- that it not a full-size truck. and Patty at while Timmons testified trial that ther, according general manager to three parked she saw men in a white truck H.E.B., Stacey not work did 23, 1996, April near Bluebonnet Road on posi- at the customer-service center. That a.m., between 6:30 and 7:00 told she inves- required training, tion which Sta- special tigators Stacey’s three weeks after murder general manager cey never The received. that she saw the truck at 9:30 a.m. on Stacey regu- maintained that did not also result, a April 1996. As the trial judge larly hang Hispanic out with a woman Stacey found no credible evidence that named Rose and that she was drawn by murdered three unknown men a The trial any particular coworker. toward truck. white Hispanic was no judge found that there Affirming Relationship b. Witnesses Rose worked at woman named who Stacey Between and Reed Stacey’s best friend. The H.E.B. or was presented Reed also several affidavits pre- found that the judge trial claiming from of an witnesses know Aldridge concern- by sented Meller Marie relationship ongoing Stacey between and Stacey and ing relationship a between Reed. unpersuasive. Reed was Kay Stacey stated that Westmorland Stacey had Shonta Reed stated and Reed came to her three or four house looking come her house for Reed when January April times late 1995 and between re- Stacey he at home was not Stacey 1996. She from the H.E.B. knew got back pick up turned him he of Fennell she him and knew because saw home. Stacey at pick up work. Westmorland that she saw Elizabeth Keehner stated neighborhood. knew Reed from the She well,” Reed, quite walk- whom she “knew seeing heard that Fennell knew Reed was hands with Stacey jealous. ing “holding and that Fennell was She out of H.E.B. very a a few months surprised pretty girl” that she “not see white claimed Stacey’s before death. she Sta- Rodney When saw told Walter was that Reed was a cey’s picture in paper, thought raped girls erackhead who on the R.R. Stacey might girl have been the Reed with I tracks. have no idea Stacey where familiarity at the H.E.B.: “The was there.” Stites was when she died.” judge The trial found that Keehner was Reed, In an affidavit submitted Ron a close friend of bondswoman and Moore states that conversation family. jail. She often bonded Reed out of Campos with Debra Pace Jane trial, gave Before Keehner a more detailed Stacey’s murder in January 1999. Accord- police. statement to men- addition Moore, Campos him told that Reed tioning sighting Stacey did not kill Stacey that she had over- H.E.B., Keehner detailed conversation heard a conversation between Fennell and grandmother-in- she had Chris Hill’s coworker, Curtis Davis. Davis told law, Wallace, Betty Wallace. occa- who worry Fennell “not to ‘it that was all taken Keehner, sionally worked for told Keeh- ” in response care of to Fennell’s com- ner, everyone presence, Chris Hill’s plaint about affair with Reed. at H.E.B. knew that and Reed were Pace trial investigator, Olney, told Reed’s dating. H.E.B., Hill also worked at Olney about the conversation. submitted Hill Keehner stated that in the responded attesting affidavit to his conversation affirmative when Wallace asked whether Pace. knowledge was common at H.E.B. about dating. and Reed The State ob- judge The trial found that Moore’s and tained a statement Hill 2000. He persuasive statements were not Olne^s any knowledge denied of the conversation credible. Reed provide failed to the trial per- and stated that he not have any did judge Campos with affidavits from and knowledge relationship sonal of a between Pace. In an affidavit obtained Stacey judge and Reed. The trial found State, Campos she stated that never told subjected that the State could have Keeh- anyone Stacey that kill Reed did not or significant ner to impeachment she had that she overheard a conversation between testified at Reed’s trial. Fennell and the two Davis which dis- Reed, father,

Walter Reed’s stated that Stacey cussed an affair between and Reed. Kelly Bonguli, who had at the worked Pace also executed an affidavit H.E.B., him told that he knew where Sta- it, request. State’s she asserted that night cey Bonguli was the she was killed. Olney any- she never told Moore or about he family also told Walter that and his said; thing Campos when Moore and Ol- then during been “tailed” Reed’s trial. He ney house, came to her to talk she refused that said he wanted talk with someone Olney’s to them. Pace read Moore’s and anything case. before he said about the and affidavits stated that the two are “bald Campos face liars.” said that Reed did statements, Considering trial these talking not do it Pace was Cam- they when judge found that not credible were personal opin- pos and Moore about them persuasive. Reed failed to submit an ions about the case. Pace stated Kelly Bonguli. affidavit from The State serious, Campos’s tone but that all Bonguli obtained an affidavit from only Campos’s opinion. she statements. knew was discredited Walter Reed’s Bonguli Finally, Davis submitted an affida- stated that he “never told Curtis Waiter- Stacey denying that he ever had such a con- Reed that I knew Stites was vit where All I ever- with Fennell. night was killed. versation trial, samples the State sent Prior to Aldridge submitted an affida- Jon Chris Stacey hair to National Medical Stites’ Stacey stating he and Reed vit saw Pennsylvania. That Services, Inc. during together the three months before analyzed 32 laboratory centimeters 1st, April she was murdered. Around to determine whether her hair in order walking, and Fennell when Jon Reed were present. cocaine or its metabolites were them told Reed he stopped knew indicates, report laboratory’s As that Stacey. him and Fennell then told analyses negative for two different were he going “pay.” Reed that grows approxi- hair at an cocaine. Since Aldridge State gave Jon a more month, per mate rate of one centimeter detailed affidavit on June 2000. He use prepared, through the the State was that he stated was at Shonta Reed’s house Stacey analyses, prove these large truck pick-up pulled full-size last a cocaine user for the Stites was not Jon up. When Reed introduced to the of her life. months driver, he told Jon that her name was Finally, judge many the trial found they dating. were The family from of these affidavits were Reed’s purchased then three rode around Reed, Aldridge, members. Shonta Jon crack cocaine. After and Reed are Aldridge, Meller Marie Ron Moore cocaine, Stacey dropped smoked crack cousins, and Walter Reed is Reed’s at a them off local bar. Jon asserted that judge father. The trial also determined Fennell another law-enforcement offi- that, proceed- at the time of the habeas stopped cial whom did know them family members had ings, many of these Bastrop. wearing plain Fennell was Jon Aldridge, criminal records. who clothes, and the officer wearing other son, Aldridge’s lengthy Meller had a Marie a uniform. Jon stated that in a had been sev- arrest record. He convicted County Department Sheriffs vehi- by check and had been eral times of theft cle with a star He embossed side. identify himself as convicted for failure stated that he knew Fennell because Fen- Reed had fugitive justice. Shonta nell had him into the Bastrop booked of theft four times been convicted County Jail. convicted once. Linda West- of assault felony morland had been convicted trial judge The determined that Jon’s theft, motion revoke her and the State’s persuasive statements were neither nor probation pending on that cause was at Fennell, judge found, credible. trial also proceedings. time of the habeas She Gidding’s at the police was officer time— charges in Dallas. forgery pending Deputy. not a Sheriffs Addition- the trial light findings, of his earlier sheets, booking after ally, reviewing Jon’s a secret judge found that the evidence of submitted, judge the State which found un- Stacey and Reed was affair between that Fennell never booked Jon into the Moreover, judge the trial de- persuasive. Regarding allegation Stacey’s jail. termined the evidence of Fennell’s Reed, cocaine the trial crack use with “secret affair” and vow awareness of a toxicology found judge report get revenge unpersuasive. Stacey’s negative for autopsy Haw- c. from Allison and Statements drugs drug and alcohol. The screen con- kins ducted H.E.B. before was hired Further, negative. also the trial submitted written statements also Allison and Neal Haw- judge found: taken from Jason kins custody while were in during Subsequent Application 2. Reed’s First investigation into Arldt’s murder. Both turn to the We now beer-ean-DNA evi- Allison and Hawkins recounted the mur- presented dence in Reed’s applica- second der. Hawkins stated that Lawhon con- tion. previously As length discussed at fessed to killing Stacey immediately after above, Reed Young’s submitted DNA-test he killed Arldt. Lawhon told (item Hawkins 24) results on the beer can number that he “did the girl Bastrop.” found on the road near body subsequent his first applica- state habeas judging Without Allison’s and Haw- Young tion. could Stacey, not exclude Of- kins’s credibility, the trial judge found no Hall, Investigator ficer Selmala as DNA credible guilty evidence Lawhon is contributors. But trial expert, Dr. murdering Stacey. judge, The who had Johnson, did exclude all through three Po- presided trial, over Reed’s made this de- lymarker testing. termination after recalling the evidence At the end of when Reed’s first trial and reviewing the habeas evidence. applications and second were before the The habeas specifically included judge, additional, trial the State ordered a written statement from Macy, Lawhon’s more discriminating DNA on testing ex-girlfriend, who would meet Lawhon beer can. intervening With advances lot, the Walmart parking written state- DNA testing, Young conducted Short ments from parents Lawhon’s asserting (STR) Repeat Tandem testing on the can that Lawhon at home on night compared genetic the results with the murdered, Stacey was and information profiles Hall, Stacey, Officer In- showing that Lawhon had been excluded vestigator testing Selmala. STR is more as a contributor to the DNA on the beer discriminating than previous testing (item 24). can number parties’ conducted both trial experts. Young examined thirteen STR loci. Deceptive Polygraph d. Fennell’s Re- results, Based on his evaluation of the sults Young was unable to exclude Hall from ten loci. He was also unable to exclude Finally, Reed pointed to Fennell’s two Investigator Selmala from five polygraph polygraphs results. The Young loci. findings documented these during conducted the investigation into report January Stacey’s death, and both results indicated Ranajit Dr. Chakraborty, Young whom deceptive that Fennell was when he was country’s testified was “one of the most struck, asked if he strangled, Stacey. or hit experts definitive in the field of population trial, At the results by were offered genetics,” submitted an affidavit concur- attorneys, and the judge trial ruled that ring Young’s determination. “Review they appeal, were inadmissible. On direct of electropherograms indicates that the judge’s ruling.37 we affirmed the trial laboratory conclusions reached the DPS exhaustively After considering all of the they scientifically are accurate and are val- evidence, trial and habeas the trial judge noted, Ranajit Chakraborty id.” Dr. how- determined that there no credible evi- ever, Young’s questions. that results raised dence that guilty murdering Fennell is of He stated Officer Hall is excluded Stacey. on based three loci and and Investi- Reed, AP-73,135. No. at *12-14.

739 Selmala, no Eisenberg Dr. found gator based gator Selmala are each excluded on contribu- to include them as DNA eight loci. exclusion each reason “[T]he loci) (based regarded Eisenberg Dr. persons multiple three on are Because tors. friend, spoke Chakraborty with the inference that are as a he consistent Dr. DNA in the mix- him elee- part Chakraborty NOT contributors of Dr. and showed (of 24).” sample ture item # the loci called where were tropherograms according Chakraborty, at Dr. 50 RFU. expert, deposition, Reed’s habeas changed opinion and Eisenberg, to Dr. his Eisenberg, disagreed Dr. Arthur with two Hall could not be agreed only Officer Young’s In his opinion, conclusions. Eisenberg impres- excluded. Dr. had support did not Young’s testing data from Chakraborty given sion that Dr. Investigator finding electropherograms reviewed Selmala are included contributors. Of- to Referring Dr. Young’s conclusions. Hall, however, ficer cannot be excluded. exclusion of Officer previous Johnson’s Dr. Eisenberg opined protocol that DPS’s Hall, Eisenberg Poly- if the Dr. stated that correct but stated that his results conducted, he properly marker test was using inter- were obtained an alternative problem relying have no pretation Explaining method. DPS’s results. method, Dr. Eisenberg maintained DPS protocols peak-height-min- mandate a Young’s Considering the results making imum of 150 RFU units when an merits, analysis on the trial DNA or loci call designation. allele Another free-standing- that Reed’s judge concluded level, value, a stochastic cutoff is 50 RFU him innocence did not entitle to re- claim Eisenberg units. Dr. asserted: jury’s judge lief. The trial found that guilty an differed designation, make allele verdict would have needs been admitted into evidence report be a minimum of 150 RFU units be judge trial also determined used for what to as trial. The inclusionary we refer clear and purposes. However, there that Reed failed establish area convincing ju- that no between and 150 RFU evidence reasonable where there light peaks clearly visually are ror him in are de- would have convicted report.38 typically only tectable but are used for purposes of exclusion.... Subsequent Applica- 3. Reed’s Second

Using lower threshold of 50 RFU units, tion previously so the three loci not visible, by Young

identified now Dr. Evidence a. Beer-Can-DNA Eisenberg could not exclude Officer Hall. Caucasian, percent again points to the beer-can-DNA Ninety-nine Afri- can-American, application. He theorizes Hispanic populations this Dr. Hall Fen- would have been excluded. But Eisen- that Officer could assisted berg say committing made clear that he could not nell the murder or with either returning Giddings Officer Hall on the put whether saliva morning beer can. also stated that the absence of the murder. Because Officer He feet, tall, Reed to is six one inch con- of an exclusion would have be looked at Hall as the conjunction relating with other evidence tends that he cannot be excluded Stacey to Officer Hall. As for and Investi- of Fennell’s truck. driver Elizondo, at parte 38. See Ex 947 S.W.2d (3) a follow-up deposition reward;

In affidavit to his was aware that her testimony, Eisenberg Dr. asserts that his sighting been important would have to subsequent Dr. Poly- review of Johnson’s law-enforcement officers investigating testing marker change opinion does not Stacey’s murder. inability about the to exclude Officer Hall (cid:127) The timing disclosure, Barnett’s be-

based on the STR results. “The STR cause of her DWI arrest Fennell systems general are in several times more shortly before her disclosure to Keng, detecting sensitive at minute amounts of suggests apparent bias and motive DNA, and the visualization of STR underlying testimony. her profiles on an is electropherogram better (cid:127) Attorney Given General Investigator discerning at as compared mixtures testimony Miranda’s and collection DQ-Alpha Polymarker systems.” newspaper local articles about Stacey’s b. Officer Davis murder, credibility Barnett’s is under- Reed further contends that Officer Cur- mined the fact that she could not tis Davis could have assisted Fennell with photo- have identified Fennell from a committing either murder returning graph newspaper because his home. Reed asserts that Officer Davis photo newspaper. was never in the reported the night for shift on the night (cid:127) is credibility damaged Barnett’s be- Stacey murdered, before but was cause testimony her about the time later, signed out an hour sick taking leave. Stacey she saw and Fennell incon- was He was then absent from for work a few sistent with her sworn statements days after the murder to comfort Fennell. made in her affidavit. Viewed c. Barnett and Blackwell conjunction argument with the State’s also relies on the information that impossible that it have been for Blackwell, originated with Barnett and Stacey Barnett to seen and Fen- particulars fully of which we have dis- at nell the store between 5:00 and 5:30 cussed above. a.m., discrepancy the time of Barnett’s claims, Brady relation hearing sighting significant. at judge findings trial made on Barnett and (cid:127) testimony Barnett’s is incredible when credibility. Blackwell’s The trial judge following considered with the facts de- found that both were not credible. (1) veloped Stacey at trial: was sched- Barnett, Regarding judge the trial found at Bastrop uled to be H.E.B. for that she or persuasive credible (2) a.m.; Stacey at 3:30 work was a following reasons: prompt employee who was never late

(cid:127) (3) give work; Barnett satisfactory Stacey failed to partially

explanation why she failed dressed in her uniform H.E.B. (4) report discovered; sighting Stacey body her and Fen- Fennell’s truck, morning April Stacey work, nell on the 23rd red which drove why report police she did not it to at the High was found School (5) anyone spoke 23rd; Keng, until she at 5:23 a.m. on the year already over a and a half after the mur- been killed when Fennell’s (1) found; (6) der. Barnett: knew mur- truck was Carol Stites woke huge worked; up der was news where she Fennell 6:45 a.m. to tell him that (2) agreed work; that it common knowl- failed to arrive at (7) edge $50,000 that H.E.B. offered Carol had to Fennell a set of give that she recalled by testimony keys Tempo go could her to her so he look when she returned Stacey. Fennell’s statement and Frank- after the funeral work judge The trial then concluded Bar- and Blackwell testimony that he lin’s did see and Fennell at the nett not Fennell could have whether discussed morning April Old Frontier store during that con- Stacey. And killed 23rd. versation, told Franklin Blackwell testimony Finding Blackwell’s neither statement. Fennell’s about judge trial persuasive, credible nor (cid:127) is undermined following testimony findings: entered the Blackwell’s officer, because, peace she failed as (cid:127) about Fennell testimony Blackwell’s relevant information report at funeral is feigning grief investigation. homicide by testimony undermined Gid- Lapham. dings Police Chief Nathan (cid:127) credibility is undermined Blackwell’s Lapham “ap- testified that Fennell by originally told the fact that she very peared upset, emotionally to be joking that Fennell was Vasquez upset, I believe before crying, he was at but testified made statement He and after the funeral.... hearing that Fennell was “abso- very distraught.” lutely” serious. (cid:127) severely testimony is un- Blackwell’s (cid:127) in the fact that Blackwell lived “Given by testimony that dermined Wolfe’s funeral, Austin, [Stacey’s] attended none of the other cadets academy, Fennell from and knew class could corroborate the CAPCO that Blackwell was implausible is said that conversation Blackwell claimed, unaware, she entirely she had had with Fennell which surrounding [Sta- the circumstances strangle girl- Fennell threatened death.” cey’s] caught a belt if friend with he ever her and Bren- d. of Jennifer Statements Further, on him. none of cheating da Prater cadets could corroborate Blackwell’s abusively claim Fennell acted to- from Jen- Reed has submitted affidavits Stacey. ward Brenda Prater. Both women nifer and (cid:127) testimony Blackwell’s is undermined man, Stacey with a claim that saw Dezarn, testimony who Reed, early morning in the who was assigned Fennell during to sit next to 23rd. maintained April hours of Jennifer Dezarn heard or par- class. never husband, Paul, her up woke in the Fen- ticipated conversation with a suspicious because there was morning nell that Blackwell described. car light their The car behind house. (cid:127) Larry testimony Franklin’s also un- color, recognize the Jennifer did not testimony.

dermines Blackwell’s The man in the passenger. driver or the Franklin did not hear the conversation complexion had a but seat dark driver’s described Blackwell never an African-American. The wom- was not say disparag- anything heard Fennell pale and passenger’s seat Stacey. went “big” ham. Jennifer Paul (cid:127) at occu- get a better look she outside to testimony that did Blackwell’s peo- that the recalled two Stacey’s pants. Jennifer

make a connection between off. saw and drove ple the car them statement until murder Fennell’s good got that she look undermined Jennifer stated Vasquez spoke a.m., interior in 3:00 light the two because the the 1:00 and while Jennifer tween on. picture car was Later she a sitting yard, saw outside in her front was she Reed he not the and was sure that was light-colored pass by a car three saw the car. man in driver of The the driver’s occupants. lighter seat a tone had skin and different light The interior was on. The driver facial features. When Jennifer’s mother- a man eomplec- was who had a darker Stacey’s in picture in-law showed her the [sic], tion was not black. I thought but paper 25th, the Jennifer knew that that he Mexican. There a was was in was the woman who had been passenger woman the seat. She was passenger’s

the seat. light big dark complected hair. [sic] 25th, that, On the Jennifer’s mother-in-law I as the car drove remember time, police told her that the had been to Jenni- the the in the passen- first woman ger fer’s when was not The house she home. seat turned her head toward the police into house Jenni- walked the when a got very good driver. I look at her fer’s did not the Jenni- kids answer door. There a they by. face as went was mother-in-law, fer’s who lived across scat white male in back At [sic]. Paul, street from Jennifer and saw the I man in first was afraid that the police arrive. She to Jennifer and went my got seat I back was husband. police Paul’s house and confronted the him better look at car went entry about their into house. Jenni- through the second time and realized fer’s Jennifer that the mother-in-law told my that he husband. I was later police threatened to call Child Protective my spoke with brother Paul and Jenni- because kids home Services fer and told me they they saw same alone. After ex- Jennifer’s mother-in-law car in back their house.

plained she watching the children day, Jennifer to work the next went home, police until Jennifer returned Stacey’s she heard about coworker asked left, stating they would come back Stacey’s picture her murder showed later. that she newspaper. Realizing police day

When the returned later that night disappeared, she seen Jennifer, spoke asked her “When, when, began 'yell, she when[?]” car she saw on 23rd. Aware Deceptive Polygraph Re- e. Fennell’s lying, the offi- she was Jennifer told sults anything. cers that she did not Jen- know Again, directs our attention to be in a nifer did want involved exams, polygraph Fennell's which led both investigation, criminal did not trust decep- examiners to conclude that police, angry police and was for when asked about murder. tive enteiing her house. Analysis Faulty f. Forensic and Col- Brenda Prater lived a house a block Evidence lection Forensic brother, Paul, her her away from sis- ter-in-law, early aspects that the During Jennifer. Reed asserts various 23rd, testimony by the hours on she writ- the forensic offered State morning April be- into at trial journal. was awake and admitted lack her She husband, support in the To cause her foundation science. his the- whom harassed Reed refers to an affidavit from Dr. process divorcing, ory, called and Riddick, an Leroy her. called Paul and asked him to from Ronald She affidavit eye Singer, out Be- and to medical literature. Reed keep an husband. that “there Dr. Riddick asserts of items in his habeas swabs.” included each these at the time is no of anal dilation application. evidence [Stacey’s] body recovered.” was is Dr. Riddick a medical examiner for it Stacey, Dr. examined Bayardo When affidavit, of His for the State Alabama. hours she died. twenty-four after was criticizing is to part, the most Dr. devoted 24 hours “Rigor begins pass mortis Bayardo’s First, Dr. Riddick conclusions. makes dilation of after death and Bayardo’s contends that Dr. time of death easier, by finger, anus swab whether estimate is unreliable. main- object.” Dr. Riddick also another [Stacey’s] In order for time of death that “it cannot be concluded with tains determined, reliably rigor to have been any degree certainty of scientific mortis, post lividity, body mortem [Stacey’s] was lacerated and anus temperature should been recorded lacerations occurred around those body at the scene found. where was photographs time of death.” The taken These are most measurements com- redness, autopsy ac- at the do show death, calculating mon means for time of cording Dr. Riddick. Redness associat- this but none of information record- ac- ed laceration “would have with By ed at the scene in this case. incurred at or companied laceration Bayardo time Dr. [Stacey’s] body saw of Regarding around the time death.” autopsy p.m. for April at 1:50 on Bayardo’s testimony, Dr. Riddick states body had by multiple been handled Bayardo that Dr. mentioned lacerations people, refrigerat- turned and had been described them direct-examination but nearly day. ed for Consequently, full Fur- scrapes as on cross-examination. too late for accurate assessments ther, Bayardo’s report only Dr. mentioned mortis, rigor lividity, body of temp- Dr. Riddick contends that lac- abrasions. produce erature to a reliable determina- erations and abrasions are not the same. tion of of time death. could be consis- Lacerations of anus Next, Dr. Riddick asserts that evi- contrast, tent anal intercourse. with dence of anal intercourse is inconclusive. not as abrasions the anus are accurate Bayardo Dr. failing Riddick faults Dr. for intercourse, much an indicator of anal preserve the that he used slides of the less an anal assault. Abrasions presence sperm determine the of intact naturally, can do for anus occur Stacey’s rectum. the slides on “[W]ithout or hemor- example, constipation due Bayardo which Dr. claimed to have seen be ‘Scrapes’ rhoids .... consis- would presence from sperm heads swabs abrasion, tent laceration. rectum, [Stacey’s] from this conclusion death, cannot Dr. Dr. Riddick be verified.” Riddick states As for cause Bayardo’s Dr. that Sta- Bayardo’s that Dr. conclusion about the attacks conclusion cey resulting be presence sperm asphyxiation intact more died reliable if the he used sexual as- strangulation rectal swabs associated with at the Dr. it is un- Noting pu- been taken scene. sault. Riddick claims Stacey’s lifts the sexual contact was bic-hair-tape between labia known whether of non- by Blakley and rectum conducted and the “The best indicator consensual. Stacey’s body is the existence manner which consensual sexual contact moved, injuries, being of other such held down. Dr. Riddick contends “there type.” Dr. opportunities leakage by injuries There are no of this were several no Dr. that there is Bayardo the time that took rectal Riddick contends ligature strangula- body discovered; died from where Stacey’s because, tion the exception perimeter “a should have been estab- neck, injuries exterior other lished only around scene with one injuries strangu- common associated with entrance and exit. Entrance present. sug- lation Dr. were Riddick egress have should been limited until gests modality, “some other such as thoroughly area was searched for smothering....” prints, tire prints, shoe and other evi- dence.”

Finally, of regarding the collection evi- (cid:127) at the “The Stacey’s body dence scene where law enforcement authorities de- found, picted tape was Dr. no ef- poor Riddick claims that demonstrated with, fort made technique dealing was to collect evidence from and taking Stacey’s under fingernails. though Even evidentiary samples [Stacey’s] from short, Stacey’s nails Dr. Riddick body.” origin The of the blanket used investigators claims the body could have to cover her is unknown and the collected evidence a toothpick. Dr. video does not show whether was of Riddick contends that the video the inspected for trace “It evidence. was authorities, crime scene does not show the good technique one of the evidence, gloves who collected changing analysts put gloved crime scene making critique, tasks. between this pocket hand into his the video —as expert Dr. admits that he is an Riddick shows—and later then handle trace ev- only crime-scene evidence collection in so having changed idence without to fresh far as it relates to time establishing and gloves.” Ungloved personnel touched death. cause of body the “one of and the individuals who [Stacey’s] body moved to a Dr. Riddick following viewed the items stretcher does not appear be (1) rendering of evidence in his opinion: gloved.” (2) report; photo- Dr. Bayardo’s autopsy (cid:127) graphs Stacey’s body of at of probable Blakley the scene It is contaminat- discovery, Stacey’s clothing, ed Stacey’s bra and breasts with trace (3) of body autopsy; video evidence is no because there Stacey’s body discovered; scene where gloves changed that the criminalist be- (4) (5) trial testimony Bayardo; of Dr. taking evidentiary samples. tween testimony Blakley; the trial habeas likely “This contamination occurred (5) (6) reports; Crime crime DPS Lab Blakley [Stacey’s] when Ms. handled (7) reports; police scene reports taking brassiere and breasts after witness interviews. tape [Stacey’s] swabs and lifts from pubic area.” affidavit, a Singer, consulting

In his fo- (cid:127) It is troubling rensic scientist works at Tarrant the criminalist who Medical failed County pieces Examiner’s Office Crimi- of belt for swab “If, DNA Laboratory, problems prosecution nalistics focuses on evidence. as the investigation theorized, the scene where later this belt used to Stacey’s body discovered and with [Stacey], stoangle pieces likely Blakley’s testimony. Singer some offers would have had trace DNA evidence following of the personal [Stacey] observations and her attacker.” conclusions: (cid:127) done; The videotape poorly there

(cid:127) begins enforcement officials exercised is no time marker and it after Law control at scene

poor security and crime scene team arrived. As a Fennell maintains that both depict Reed result, completely it does not “A Giddings Department the activities law enforcement. Police continuous- practice to record better Fen- Concerning for violence. reputation get police ly from moment that state-eivil-rights law- nell, points responding after to the scene the first Giddings, City against filed suit of evi- “[A] officer.” valuable record Oltmann, Police Chief Dennis Giddings support could dence collection—which Fen- Lapham and Officer Nathan Giddings prose- impeach integrity against sus- using excessive force nell for lost.” cution’s evidence—has been trial. year before Reed’s pects (cid:127) prac- exhibited Blakley poor forensic vio- that Fennell was Reed also asserts repeatedly beyond and her tices went di- dated. Reed women he lent toward expertise. Blakley testified area of Dun- affidavit from Pamela expertise stating her us to an beyond rects dead, August 1996 long Stacey identifying can, girlfriend from how Fennell’s dating and the body marks describes 1997. Duncan September marks, and that it a crime opining abusive, possessive, controlling, Fennell criminal- passion. “[T]raining as a extremely African- prejudiced toward and ability to give ist does not one the up with When Duncan broke Americans. how has been long estimate someone Fennell, he left Gid- he stalked her until prov- This dead. determination is and safety afraid her dings; she was for “[o]nly a pathologist.” ince of And children. that of her can that a pathologists determine house, after night my He drive would is, fact, bruise, cigarette in mark into night, spotlight and shine burn, bite, or scratch or how old finally put so that I got house. It bad mark is and incurred.” how it was' windows, my reflect the up foil in tin Finally, Reed cites to a book written my house light. He would stand outside Dr. Green in entitled: William screaming me, calling me a at night, and “Rape: The Evidential Examination He would and other obscenities. ‘bitch’ Management of the Adult Female Victim.” K, just and by my job at the come Circle book, surveys Dr. studies Green front, headlights out parked sit presence conducted on of nonmotile stay He would shining into store. in the Dr. sperm vagina. intact cervix me, there, watching in his sitting car and intact study Green notes one found to two anywhere from minutes two days ten after Other sperm intercourse.39 ... Once he came into the store hours presence sperm studies found the of intact vagina from two let the office— anywhere the cervix and wouldn’t me out of days nine intercourse.40 days police after get call the someone we had to testimony that Blakley’s Reed contends out, He him to escort so I could leave. length sperm estimating the of time tried to date guy hassle I patent- can remain intact the “cervix” is instance, away. them For until scared ly false. guy beer I dated one who delivered Jimmy dating, After we started Giddings town.

g. Fennell and Police Reputation giving him Department’s pulling over sta[r]ted for Violence M.D., Rape: M. Id. at 107-08. 39. William The Eviden- Green. Management Examination the Adult tial 1988). (Lexington Victim Books Female him many tickets. He so got tickets he Robinson Jail County keep job anymore. couldn’t being while Reed was held there on this case. At jail, told Robinson Summarizing relationship, the end Stacey. he did not kill Robinson told Duncan states that it was the worst time that he would be transferred to another her life. county he stay and that could not in Bas- Claiming Giddings Police De- trop to Reed’s testify at trial. Robinson partment long-standing reputation had a also declares Al- was with Chris for brutalizing suspects and targeting dridge stopped and Reed when Fennell trial, non-whites at time of Reed’s them, telling Reed that he knew about Reed relies on federal-civil-rights action relationship against initiated Giddings Police De- pay. he would partment Giddings and another officer. plaintiffs petition Attached in that 4. Discussion case is an from Keng. Keng affidavit re- called alleged several instances of mis- that all We hold of the reliable conduct involving officers with the Gid- evidence, new, presented by both old dings Police Department using excessive compel Reed does not the conclusion force specific and recalled some instances it is more than not that likely no reason of alleged misconduct. He also recalled juror able would have voted to convict requesting that the Texas Rangers inves- sepa Reed.41 we note Initially, that what tigate allegations abuse when Chief Olt- majority gate rates this case from the mann failed to him a give satisfactory ex- way-innocence is the lack complete cases planation alleged about abuse. A theory of a cohesive innocence. Reed’s Ranger told Keng there claim seriously disjointed of innocence is much he could do because Chief Oltmann presents and fragmented' numerous —-he supporting his officer. In closing, critically theo incomplete alternative but Keng past years, stated: “For the ten focusing ries. on a By romantic relation the Giddings Department Police has had ship Stacey and as between himself as well reputation County in of roughing Lee pointing suspects— alternative several up suspects then- arrest.” during Fennell, Lawhon, and some unknown new be dark-skinned man—the evidence

h. Statement of James Robinson complete, fore us tell a fails to rational James Robinson contends that he exculpatory narrative exonerates separate Stacey relationship with and Reed. None of Reed’s theories meets Reed. Robinson knew Reed the nurs- gateway standard of innocence. home where worked and knew Stacey from recognized “school.” Robinson Sta- As Roberts saw Chief Justice Bell, cey together and Reed on numerous v. concurring opinion occa- House sions, kissing calling “Implicit requirement and each other in the that a habeas “baby.” parties petitioner He Stacey present went to where reliable evidence is expectation and Reed would meet. Lawhon of- a factfinder assess would will Here, parties, ten be at the our credibility.”42 same and consistent with say him. After jurisprudence, hello to writ we follow credibili- murdered, ty factfindings sad made angry. Reed seemed determinations 2064; 5(a)(2). § also Tex.Code Crim Ann. art. 11.071 42. 547 U.S. 126 S.Ct. see Schlup, 513 U.S. at 115 S.Ct. 851. Fennell, by Reed was threatened presided over when judges the two who gave two statements. judges though Both proceedings. even Reed’s habeas the demean- opportunity had the assess above, refuse credit we Based on before appeared the witnesses who assessing wheth- foregoing evidence Further, pre- judge them. the trial who showing facie prima made a er has first habeas sided over Reed’s and second that, before of all of the evidence light tri- presided proceedings also over juror convict- us, no would have reasonable record, al. Based our review of remaining him. now consider the ed We findings judges entered the trial various relates to the new evidence by the rec- supported discussed are above offered of innocence alternative theories ord; thus, in has several instances Reed by Reed. provide us reliable evidence failed reject of innocence. The evidence we a. Fennell as unreliable includes: Robbinses’ of evidence we Excluding the items statements; who affirmed witnesses following rejected, we consider Stacey; Al- relationship between Reed Reed, that, suggests according statements, lison’s and even Hawkins’s murder: credible; Fennell’s involvement regarded as information (1) results, polygraph Further, deceptive Fennell’s from Barnett and re- Blackwell. admissibility,43 regardless of their even garding sighting, given Barnett’s the evi- (2) reliability;44 developed though question them during pro- dence the habeas we that cannot ceedings alibi, Officer DNA-beer-can-test results Hall’s which the (3) undermined, Hall; has been and lack of that not exclude Officer evidence Davis, any coworker, Fen- Officer took suggesting reliable evidence that Fennell’s accomplice, shortly beginning nell had an that shift we conclude sick leave after (4) 22nd; or night April Barnett’s information is not credible and evi- on Giddings reliable. Fennell and the Police dence that had a for violence. Department reputation Additionally, find that we Robinson’s statement is not credible for rea- several may indeed Although this evidence new First, sons. his statement is not sworn. healthy that Fennell suspicion arouse a Second, Stacey he contends that he knew death, Stacey’s had some involvement that, has from school and as of that Reed has are not convinced shown we eight years. Reed or nine The known that of the evidence no by preponderance trial, however, evidence at that establishes this juror, reasonable confronted with evi- Stacey graduating moved to after beyond dence, him guilty would have found School; therefore, High from Smithville of vagi- doubt. The evidence a reasonable Third, suspect. Robinson’s statement is assault, more nal which we will discuss Stacey seeing Robinson’s statements about below, fully and the circumstantial evi- together are Robinson general; Reed against at trial have dence admitted specific no facts that have been or offers support a and still not been undermined Fourth, be corroborated. this state- could verdict. guilty credibility ment lacks because Jon never Relationship present b. Consensual Sexual mentioned that Robinson 327-28, Scheffer, U.S. Schlup, 523 43. U.S. 115 S.Ct. 44. See United States v. See 309-12, 1261, 140 L.Ed.2d 413 118 S.Ct. (1998). Reed contends Dr. Johnson leakage that evidence from claimed that Riddick, Dr. Singer, Dr. vagina Green’s book that is common and stated se- only Stacey establishes that he and had men could be in areas surround- detected point sexual relations at some before her vagina, including the anal area. death and that is there no credible evi- body, according Movement of the to Dr. raped. dence that We dis- Johnson, leakage likely. makes more She agree. conjunction considered in When added, “A small very sperm number of evidence, with the trial Reed’s new evi- that be collected in an would area would on verge establishing dence does that much likely [be] more to come from a is likely it more than not that no reason- touching contamination of the one swab juror able Reed. convicted another, area it’s drain- inserted into age Semen Reed contends from around area.” low evidence of anal ejaculate is numbers is not indicative intercourse inconclusive. From our reading likely briefing, apparent of Reed’s it is and is more to be due to discovered that, Stacey that Reed leakage. theorizes was not anally sodomized, then uncontested fo- moving Dr. Riddick’s contentions that

rensic of vaginal evidence intercourse was Stacey’s body opportuni- created several from a consensual encounter and Reed is sup- ties for which in Reed’s view leakage, theory therefore not her killer. This ports his theory that there was no anal illogical. Any deficiency in the evidence intercourse, presented to the jury suggesting anal intercourse not nec- does this, is therefore Because of cumulative. essarily theory that he support Reed’s say we cannot that Reed’s new vaginal engaged consensual in- regarding ap- have had leakage would Likewise, tercourse. evidence of anal in- preciable impact jury’s verdict. tercourse does conclusively establish opinions that Additionally, Dr. Riddick’s that the encounter was forced. Neverthe- less, there is no anus was evidence that competing evidence semen be concluded vagina leaked from to the anus was dilated cannot Blakley jury. any degree certainty before stated she with of scientific significant not of leakage did see a amount merely pres- Stacey’s anus was lacerated Stacey’s underwear and therefore could differing jury ents that a could opinions vagina not conclude that semen from her reject. cavity. her rectal

was transferred into any event, conflicting evi- when the small, Blakley maybe only “[f]our observed penetration dence about anal viewed spots” than dime-sized of semen in less trial, conjunction the at with underwear, Stacey’s atypical which was for Reed has not a preponderance shown significant leakage. a amount of Accord- juror the no evidence that reasonable Blakley, to Stacey this indicated that would convict him. after did move much intercourse. Compelling, independent circumstantial Blakley Game cross-examined about the Stacey that forced evidence showed Reed Stacey’s body movement of after was vaginal to intercourse. When discov- Blakley that she discovered. stated rolled ered, disrobed, body Stacey’s body Stacey’s partially was onto the stomach so the Stacey’s pants unzipped, top her of her body could look at back side. were pants back, parted, zipper then onto were was broken rolled transferred was gurney, transported Bayardo’s “jammed to Dr. and was onto the metal and down clamps office in Austin. that piece holds—the metal that re- Stacey Fennell. marry to she wanted zip- a tooth from the zipper together, her pulled missing, mother, and Jim- stating, was off “I love per her assured her underwear was bunched down around marry Sta- I’m to him.” my[,] going opinion Contrary to Dr. Riddick’s hips.” mother told her mother her cey also Stacey no consis- injuries had other anxiety get her over needed assault, Blakley a dark- tent noted wedding. on ened area on the inside the elbow trial also establishes The evidence at Stacey’s right left arms. The bruise on consistently arrived to work Stacey Stacey there before died because Further, body bruising Stacey’s partially does occur or increase after time. beating. Stacey’s right heart On stops uniform it was in the H.E.B. when dressed arm, Blakley a also noted mark that was was en This shows she discovered. being a “very fingernail consistent with be fully to work and intended to route dug Blakley into the flesh.” believed a.m., Stacey at 3:30 as scheduled. there suggested physical marks violence. these point 5:23 murdered at some before Blakley opined that the bruises resulted a.m., Officer Alexander first noticed pressure being ap- “a small from area High truck at the School with Fennell’s skin, plied fingertip either Stacey’s on lying ground belt piece instrument, something local- sharp but Finally, despite the door. outside ability Regarding ized.” her to differenti- efforts, presents no credible evidence bruises, Blak- ate between old and recent relation- showing that he had a romantic ley Stacey yellow noted that older Stacey. ship with green upper thighs, bruises on her which Stacey carrying consistent box- cir- presented State relevant The also Bayardo pre- es at H.E.B. Dr. documented at implicating Reed cumstantial evidence injuries Stacey’s mortem sug- head that Reed example, trial. For authorities knew that she had been hit closed gested awith at Bastrop late routinely walked around fist. morning. early and in Authori- night Furthermore, circum- life frequently walking Reed near ties saw strongly to her leading up stances death way traveled roads willingly support finding she did not Further, for H.E.B. it was convenient participate vaginal intercourse with at parked truck Reed leave Fennell’s murdered, Reed. When The School. School was High wedding carefully planned helped house, near Reed’s where walked by working early-morning shift pay feet, height Reed’s at six odd hours. With only days H.E.B. eighteen at inches, the seat position driver’s two Fennell in the final away; mirror also supports and the rearview stages preparing wedding of for the theory per- that Reed was the last State’s Stacey couple. future a married their Importantly, the truck. son who drove moment time to every free of her devoted knowing Stacey when he was Reed denied Her wedding. details of the planning made questioned by authorities. This first mother, Carol, from a nervous suffered rela- claim of a consensual sexual Reed’s depressed. her to get condition that caused trial, for the first time at tionship, offered When Carol’s exhaustion and stress and implausible a look like manufactured to a helping Stacey planning came with of for the presence account murdered, explanation day Stacey head the before asked if she certain his semen. Carol

Reed also Blakley’s takes issue cey’s with tes- breasts contained samples. saliva timony about the viability sperm, of and in Dr. Johnson identified the substance as so, doing points Reed to Dr. Green’s sur- amylase saliva based on an Amylase test. vey of studies on nonmotile-intact sperm. is a primary component saliva, of accord- Reed, To the small leakage amount of ing to Dr. Johnson. Dr. Johnson stated Stacey’s semen from vagina is consistent likely that it was that the got saliva there having sex with Reed at least shower, after last which was the day before her death. The studies cited night before she was murdered. by Dr. fully Green do not support Reed’s To Dr. refute testimony, Johnson’s Reed example,

contentions. For study points reported Singer’s finding Singer intact affidavit. main- sperm after ten days was based on an analysis tains: cervico- vaginal scrapings. case, In this Blakley Amylase testing procedure is a that is Next, vaginal used Blakley’s swabs. testi- helpful as a screening is, device. It mony that the length outside of time for however, general test and cannot be finding presence sperm intact is relied upon identify specific body

twenty-six hours was not the only testimo- fluid such as saliva accuracy. We ny on the Bayardo issue. When Dr. con- discovered, for example, amy- ducted autopsy p.m. 1:50 on the 24th testing lase routinely a pre- indicates swabs, obtained his vaginal own sumptive positive in reaction to certain presence documented the sperm intact plant vaginal matter as well as fluid and and testified at trial that this meant the body non-human fluid. semen was introduced into the vagina a day Thus, or two before the exam. Dr. The possibility that the substance on the Bayardo’s estimate about the length of breast swabs was not saliva before time that sperm can remain intact in the Dr. jury. Johnson stated that amylase is vagina exceeded the length of time that Furthermore, found other Sing- fluids. Blakley testified to and is consistent with only er offers theory alternative theory that he and Stacey had con- jury could disregard. have chosen to vaginal sensual intercourse at least a day However, type even we assume that the Furthermore, before her death. even if of substance is unreliable because of cross- we assume that Blakley Dr. Bayardo contamination, considering the evidence at length underestimated the of time trial, it highly unlikely reason- sperm intact, that, will remain we conclude juror able presence would view the given the case, other evidence in this in Stacey’s Reed’s semen vagina by- as the has failed to meet his burden. product intimate, of a consensual interlude Finally, citing cross-contamination, Reed between two. contends that testimony at trial that breast swabs taken Blakley contain sali- c. The Unidentified Male or Men va is unreliable. Reed claims that The statements from Jennifer and Bren simply cells, State found epithelial which da Prater also fail to make a threshold present are along sperm. semen showing First, of question innocence. we support this, of Reed relies on Dr. reliability their they because did not come Riddick’s statement that likely it is that Blakley Stacey’s Sep contaminated forward with this information until breasts trial, with trace At though evidence. Dr. Johnson tember investigation even testified that the swabs taken from Sta- into death was well known Bas-

751 PRICE, J., concurring opinion. filed a Further, that Jennifer’s trop.45 we find hus credibility suspect is also because J., WOMACK, concurred. band, Paul, failed to corroborate his wife’s However, need in an affidavit. account we P.J., KELLER, concurring filed a has point. not on this This evidence linger opinion. continuity no of the other new forty says, years, “For The Court over fit not evidence offered Reed does consistently has jurisprudence our writ trial the chronicle of events within is the ultimate recognized that this Court Thus, the infor supports. coipus proceedings.”1 factfinder in habeas mation about Jennifer I this is serious misstate- believe at alongside Brenda is viewed the evidence law, I also that the ment of believe trial, say cannot Reed has estab we fact-finding in this engagement Court’s it is than likely lished that more not my- I unnecessary. therefore find case juror no reasonable would have convicted join the Court’s otherwise self unable him. opinion. formidable Because, reviewing after the cumulative The characterizes itself as Court evidence, force all Reed foregoing of trial judge fact finder” and the “ultimate satisfy has the gateway failed standard The “original as the factfinder.”2 Court 11.071, 5(a)(2), under Article we Section and “or- says that “in most circumstances” Brady refuse to reach the of Reed’s merits dinarily” judge’s to a trial we will defer of ineffective assistance counsel findings supported by fact that are of claims. says conduct record.3 The Court that we of record and independent review the V. Conclusion that, findings not judge’s the trial are record, have the au- supported by we In reviewing Brady claims that contrary thority make or alternative “to 11.071, 5(a)(1), Article satisfied Section we findings and conclusions.”4 hold has failed to show that the State did disclose favorable evidence. pronouncements, For the Court these We also hold that Reed has made cases, cites a the most recent handful threshold, inno- prima showing facie Ex per opinion parte is the curiain which cence a preponderance of the evidence made Alstyne.5 But statements Van 5(a)(2). 11.071, Article under Section dicta, best, are, in these at cases Therefore, mer- we refuse to consider the many support fail to instances its Reed’s other claims. constitutional holding for other In Van Court’s reasons. denyWe relief. Alstyne, example, statement Court is the “ultimate fact finder” was

this KELLER, P.J., in fact defer concurring filed a dicta because this Court did findings of fact.6 The to the trial court’s opinion. Klem, (3rd v. Id. at 45. 510 F.3d 230 3. 727. Goldblum Cir.2007) timing (considering a disclo assessing credibility sure and of a witness Id. 4. statement). probable reliability of (Tex.Crim.App.2007). 5. S.W.3d op. at 1. Court's 727. Id. 6. Id. 823. 752 reject

Court did not a single finding of We response made those statements in fact, let alone make findings contrary to applicant’s attempt habeas to submit evi- those the trial court.7 dence that had been submitted to the trial directly court to this Though Court.12 parte The Court’s citations to Ex “might” we said that we “implicit” Adams,9 Ex Simpson,8 parte parte and Ex authority to evidentiary consider materials provide support no further for the Young10 directly Court, filed with this we did not in notion that can this Court refuse to defer fact do so in that But even if we case.13 judge’s to a trial record-supported findings had, doing so not support propo- corpus the habeas context. To the con sition that we decline could to defer to the trary. emphasized This Court in Simpson trial court regarding actually Court, that the trial judge, not this was it. before responsible for gathering evidence and making fact-findings: Adams, In said that it Court “not bound findings trial court’s and judge “Johnny-on-the- habeas is [T]he conclusions of “generally” law”

Spot.” He is the collector of the evi- findings the trial court’s of fact are sup dence, materials, the organizer of the record, ported by they should be acc the decisionmaker as to what live testi- undoubtedly That is correct. mony may necessary, be the factfinder epted.14 findings But if not supported by are disputed issues, who resolves factual record, the is alternative not to make con judge applies who the law trary findings; to reject the unsup facts, enters specific findings of fact and ported fact, findings. in Adams the law, conclusions may make a spe- Court relied upon an earlier decision that cific recommendation to grant deny “compared a trial judge’s factual findings relief. This then Court has statuto- in a habeas to a corpus proceeding jury’s ry duty to the trial review court’s factual findings legal conclusions to ensure resolution of factual disputes.” ^[15] And, course, the court Adams did defer to the supported by are the record facts, judge’s are in trial accordance the law. resolution so We court, convicting opinion are trial said about the issue we whatever are not the original was dicta anyway.16 factfinders.11 Alstyne, (joined 7. In Van I filed a 9. (Tex.Crim.App.1989). dissent 768 281 S.W.2d Judges Hervey) Keasler and that considered be, question the crucial not whether 10. (Tex.Crim.App.1967). we 418 S.W.2d 824 judge's could decline to defer to a trial rec ord-supported added, fact-findings, (bold but whether the 11. S.W.3d 136 at 668-69 italics judge’s original). trial determination of mental retarda supported by tion was fact the record. See Indeed, I id. at 824-26. conceded that almost 12. Id. at 669. judge’s total deference to trial fact-find ings required, argued but that the video 13. Id. tape required reject judge's us to the trial Alstyne ultimate conclusion that Van 14. S.W.2d at 768 mentally meaning within retarded of At 304, Virginia, Moore, v. U.S. S.Ct. kins 536 122 (discussing parte 15. Id. Ex 136 Tex. (2002). 153 L.Ed.2d Id. (1939)). 335 Crim. S.W.2d (Tex.Crim.App.2004). 8. 136 S.W.3d 660 16. Id.

753 record, that can be case, by the supported a 1967 the ex- Young, Court “[ujnder prior this findings decisions” that are plained disregarding basis for by findings of was not bound the the Court independent review supported: “When our upon but the case judge district decided and findings conclu- of record reveals “by or other- facts ascertained affidavit record, by the unsupported sions that are disputed of and that the “resolution wise” will, skeptical understandably, become we of fact has not been left issues heretofore reliability and findings of the as judge, subject to review of district whole,”20 “when numer- conclusions as But Appeals.”17 the Court of Criminal ous, all, findings and conclusions but not changed by amending ar- Legislature record, by the deter- supported are not ticle the Texas of Criminal 11.07 of Code be the level of deference to mination of amendment, Procedure.18 After article findings as a and conclusions accorded “[fjurnishes statutory authority 11.07 case-by-case on a whole is to be made whereby Appeals the Court Criminal Court, basis,”21 and, says the “under adopt findings of the may accept and extraordinary of circum- rarest most on such issues of judge disputed district any ... to accord we will refuse stances findings fact or such to ascertain review findings to the deference whatsoever by fairly are they supported whether I am as a whole.”22 aware conclusions transcription of the rec- propositions, these supporting no caselaw So, provided ord.” before article 11.07 leery I cites none. And am and the court, Court by fact-finding for the trial this rules case-by-case have determinations and may Court been “bound” by any fact-finding that sense informal exceptions. for rare While allow might by been made a trial court “rare” a rule is laid may “rare” mean when auspices corpus, under the habeas but it down, door it can mean open once that is seems clear now this is “bound” Court when, entirely. Especially else something if by fact-findings they the trial court’s are here, there is no clear standard supported by the It accurate record. is unsupported find- determining many how say that is this Court “not bound” deference, ings trigger will loss fact-findings simply trial court’s if one will decide whether how this Court reject means that this Court can those fact-findings record-supported trial court’s findings supported by are not Perhaps be a definite rule ignored. will language goes record. But the Court’s task, but that regard impossible this is can by saying further this make Court engaging that we should not be sign rather findings, simply its own than evalu- begin this with. task findings trial ating whether the court’s are sufficiently supported, ig- on occasion in that task engage And need we fact-finding nore a court’s even trial case can re- here. The issues in this be it. supports the record resolved, solved, and in fact are defer- record-supported trial ring to the court’s that, if suggests

And the further Court enough findings fact-findings. trial are not court’s mine). mine). (emphasis op. at 727 (emphasis 20. Court’s 17. S.W.2d 826-27 at 728. 18. 418 S.W.2d at 827-29. Id. 22. Id. at 728.

19. Id. at 829. 754

I concur in of judgment ally practice the this to better Court the to defer to the deny relief. findings convicting court, all for typically affording reasons articulated for PRICE, J., concurring opinion. filed a deference to the court in which evi- live I join the I opinion. sepa- Court’s write originally adduced, dence was is also rately only briefly to Presiding address to important acknowledge, continue to as Judge objection Keller’s to Court’s dis- that, does today, post- Court in the cussion of the respective fact-finding roles context, habeas conviction that deference this of Court and the convicting court. is absolute.2 never view, Presiding The if Judge’s accepted, Articles 11.07 and 11.071 of the Texas relegate this to the Court status of post- Code of Criminal Procedure make appellate post-convic- an court. But in the applications conviction for writ of habeas context, tion the Texas Constitution corpus felony eases, in (including capital) Legislature origi- us with vested court, though filed in the convicting re- jurisdiction.1 nal I reject must therefore to turnable this Court. this Because Presiding Judge’s view we owe capacity develop Court lacks to live unqualified the convicting deference to it is a testimony, matter of any court’s convenience findings.of fact under and ev- only that such are con- ery set of writs filed in the circumstances in which those instance; findings supported victing original are court the first by record. I jurisdiction of to While believe as a matter “effi- resolve matter lies with effectiveness, ciency, comity” it is usu- The statu- convicting this Court.3 court’s V, 5(e) Villanueva, 391, (same); (“Subject parte § 1.See Tex. art. Ex 252 S.W.3d Const, law, regulations (“short such may prescribed by (Tex.Crim.App.2008) suspend be 397 of writ, Judges of Appeals Court Criminal and the ing Legislature may regulate how power thereof original shall have the to issue the writ jurisdic exercises its court habeas corpus!.]”); of enacting particular habeas by procedural tion mecha Tex Crim. Proc. Code 11.07, 3(a) (“After § govern art. final conviction presen the submission and nisms that case, any felony be application writ must made re writ habeas tation of for turnable Appeals to the Court of corpus.”). Criminal Austin, Texas.”); Texas at Crim. Proc. Tex.Code 11.071, 6(a) ("If 660, See, § timely application art. parte Simpson, e.g., Ex 136 S.W.3d ("It corpus a.writ of habeas in the (Tex.Crim.App.2004) generally is filed convict is 669 court, fruitless, corpus, orig- writ of returnable counterproductive, habeas to file appeals, evidentiary court of criminal shall issue relating inal a habeas materials Renier, law.”); operation parte 734 Ex claim this rather trial Court than the 349, (Tex.Crim.App.1987) (Teag S.W.2d Although implicit 359 might we court. have the ue, J., 1943, (since dissenting) statutory evidentiary authority to consider materials Court, exclusively authority directly scheme vests jurispru- Court of with this normal filed Appeals grant post-con Criminal efficiency, relief dential considerations of effective- cases); ness, corpus felony comity viction habeas Ex to the habeas court counsel Davis, 216, (McCor parte against appli- 947 S.W.2d 223 consideration. Because such mick, J., (Article concurring) provides compel- proof 11.071 failed cant has to offer circumstances, may extraordinary exclusive ling means which this Court we de- original corpus jurisdic evidentiaiy exercise its habeas cline to consider the materials cases); Smith, Court.") capital parte tion in directly Ex 977 filed that he has with this 610, (Tex.Crim.App.1998) supplied.) S.W.2d 611 n. 4 (Emphasis (McCormick’s separate may opinion in Davis Renier, Court); regarded parte (Teag opinion supra, be as an Ex 3. See Ex at 358-59 (Tex.Crim. ue, J., parte Thompson, dissenting) (ordinarily, 273 177 court which S.W.3d AP-75,720, returnable, App., issuing No. WL deliv writ rather than the function; *2, 8) 2008) court, op. (slip performs any fact-finding ered March n. but are no torily findings of fact contemplated well-informed recommenda-

more than rarely any there is though tions. And them good reason to follow adduced in are the evidence supported court, convicting there is no absolute them, follow even requirement we evidence, supported by evi- finding different supports dence also justified by reason deem more we have evidence, even on a credible or reliable cold record. be a suggesting

I am not it would reject rec- good record-supported idea to the trial court on a ommendations from (or often). very regular basis And even plainly do not. But is a mistake to we doing prohibited believe that we are deny in the case. To our so even rare original authority jurisdiction as a court of of a relegate our status re- viewing court. That would be an abdica- constitutionally statutorily

tion our assigned responsibility that authority and possibly

I could not condone. Dunnavent, Hurst, appellant. for Drake Mallín, Appellate Divi-

Charles M. Chief Atty., sion, Mandel, Dist. Sylvia Asst. Dist. Office, Worth, Atty’s appellee. Fort for Anthony WASHINGTON, Appellant, D. CAYCE, C.J.; LIVINGSTON PANEL: v. DAUPHINOT, JJ. Texas,

The STATE of State. No. 2-07-433-CR. MEMORANDUM OPINION1 Texas, Appeals Court PER CURIAM.

Fort Worth. 29, 2008. Aug. Washington ap- Anthony D. Appellant rob-

peals twelve-year sentence bery.2 We affirm. transmitting court of re it to the Appeals is "not dence and Court of Criminal

because inclined, viz:, Court, turn,” hold eviden- equipped, given let alone v\as exclu which this tiary hearings or immediate examina conduct merits). power to sive rule records,” existing Legisla court tions trial convicting developed procedure whereby ture TexR.App. P. 47.4. 1. See assembling charged the evi court “was notes comments made Fennell in during break, classroom Fennell was class, though, according even to her testi- standing up in the back of room talk- she mony, was unaware that the communi- ing with cadet sat to his right. who ty and people attending funeral were Blackwell overheard Fennell tell the cadet questioning happened to Stacey. what right seated to he his would strangle During her testimony, Blackwell also re- girlfriend if discovered that she was previously called she had told best Blackwell, cheating on him. who was seat- friend about Fennell what had said the Fennell, ed at the table front then night that Fennell made the statement. said, “Well, looked over her shoulder and Blackwell, According point some you they’ll do that your fingerprints find warm, 1998 when the weather all over her throat.” responded Fennell Vasquez, introduced to the investigator ap- Blackwell, telling her that he would use a

Case Details

Case Name: Ex Parte Reed

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 17, 2008

Citation: 271 S.W.3d 698

Docket Number: AP-75693

Court Abbreviation: Tex. Crim. App.