IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,973-01
EX PARTE BILLY RAY BRYANT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. CR01125 IN THE 102 ND DISTRICT COURT
FROM RED RIVER COUNTY
K ELLER, P.J., filed a dissenting opinion.
The habeas court recommends that relief be denied, and I believe that the recommendation
is supported by the record. By my reading of the record, (1) there is compelling evidence that
applicant is guilty even without considering Janie’s written statement and (2) the polygraph evidence
would not have changed the jury’s view of Janie’s testimony.
A. Compelling Evidence
Although some of the evidence that I will recount below was contradicted at trial and on
habeas, I believe there is a significant amount of incriminating evidence that creates a compelling
case for applicant’s guilt.
1. Relationships
Applicant was not a stranger that happened to be implicated by Mitchell; applicant had
BRYANT DISSENT — 2
significant connections with members of the Victory and Raulston families. Janie, whose polygraph
test is the primary subject of applicant’s claims, is Stella Victory’s sister and Aaron, Dalinda, and
Jonathon’s aunt. Applicant was Janie’s live-in boyfriend at the time of the murders and the three
children knew him. Moreover, applicant “ran with” Kenneth Raulston, and he and Kenneth together
“jacked” Mitchell Dickey on a large amount of drugs that Mitchell had fronted out to applicant.
2. Motive
Applicant had at least two motives for killing Johnny Victory. First, on Christmas Eve,
Johnny beat up Stella, who was the sister of his (applicant’s) girlfriend Janie. Stella was also the
girlfriend of his friend Kenneth. On Christmas Day, there were a “bunch of guys” with “lots of
guns” at Stella’s house. Stella’s brothers were there, as was applicant. “They” discussed killing
Johnny. Aaron overheard applicant and Kenneth talking about killing Johnny.
Second, Johnny stole cash, barrels of expensive methamphetamine precursors, and
counterfeit money plates from Kenneth. Dalinda thought that applicant “had a fuss” with Johnny
over the things that came up missing because that’s what she had been told over the years.
3. Eyewitnesses
Several witnesses testified that applicant participated in murdering Johnny and Sarah or that
applicant was present when the murders were committed. Mitchell claimed that he, applicant, and
Kenneth drove to Johnny and Sarah’s house and parked nearby. Mitchell said he waited in the car
while applicant, who carried a shotgun, and Kenneth went to the house. Mitchell soon heard
gunshots and ran to the carport, which would have been when Stella’s children saw him. Mitchell
testified that applicant and Kenneth killed Johnny and Sarah.
Aaron testified at trial that on the night of the murders, Johnny was carrying him up to the
BRYANT DISSENT — 3
house. When Johnny set him down, Aaron heard a shot and he saw Johnny and Sarah fall. Aaron
stopped by his dad, and then ran and hid in the carport. From there, he saw applicant and Kenneth.
Applicant and Kenneth each had a gun in his hand.1
In 2007, Dalinda gave a written statement about what happened on the night of the murders.
In it she says, “I saw a man look through the back living room window. The man had a full beard
and collar [length] hair. His hair was black. He had on a red and black checkered coat. I knew Bill
Bryant because I had seen him on several different occasions prior to that night. I remember saying
to my brothers that the man looking in the window was Bill Bryant or I asked them if it was Bill
Bryant. I did think at the time that the man looking in the window was Bill Bryant.”
When Dalinda first testified at trial, she said she did not know if applicant was one of the
murderers. The next day, as the judge at the habeas hearing put it, “in dramatic testimony in the
rebuttal, as she sat in this witness stand, she turned and pointed at Mr. Bryant identifying him as the
killer of one of her parents.” During this later testimony, Dalinda said she was scared, and that she
wasn’t even living at home because she was scared for her life and her son’s life. She had always
known it was applicant, but her mother, Stella, said it wasn’t him. Dalinda thought it was because
Stella was trying to protect them.
Dalinda worked for applicant when she was twenty-two (thirteen years after the murders) and
her brothers hated the fact that she was around him all the time. When asked why she was friends
with applicant, she said that she couldn’t act like she was scared of him because “what if he would
have killed” her if she had shown any kind of fear.
Dalinda testified more than once that she did not know if “it was him,” but she also explained
1
I have appended to this opinion Aaron’s testimony on direct examination.
BRYANT DISSENT — 4
that testimony when she ultimately said that “it was him.” Dalinda testified that she knew in the
back of her mind that it was applicant, but she pushed it away. She explained that she always knew
it was applicant, but she did not want to believe it because she did not want herself and her kids to
be in danger. She said, “You have to go through something like that to understand why you would
do that. It’s unexplainable.”2
Jonathon did not testify at trial, but after the case was reopened, he told law enforcement that
there were other people present at the murders, and he believed applicant was one of them. In spite
of trying to convince the kids that “it wasn’t him,” Stella later told Jonathon that “it was him.”
4. Weapon
There was evidence that applicant was in possession of a weapon that could have caused the
murders. Johnny and Sarah were killed with a shotgun. Johnny had both birdshot and buckshot in
his head, which could have been caused by a double-barrel shotgun. Applicant sold two rifles and
a double-barrel shotgun to a man in Oklahoma a few months after the murders.
5. Threats / Statements Showing
Consciousness of Guilt
Applicant made threats and engaged in conversations after the murder that suggested his own
consciousness of guilt. Before the murders, Mitchell had burglarized Kenneth’s house (where
Johnny and Stella were living) as part of an insurance scam. After the murders, Mitchell went to
prison for the burglary. Mitchell’s mother testified that three or four months after Mitchell went to
prison, applicant came to her house in New Mexico with a man named Denny Donaldson and
threatened Mitchell’s parents. Applicant told them that they’d better tell “Mitchell, little son of a
2
Dalinda remembered that Janie called applicant “Tom” because he was seeing another girl
behind her back.
BRYANT DISSENT — 5
bitch, to keep his mouth shut.” The reason that Mitchell’s parents had moved to New Mexico in the
first place was that, because of an earlier threat, they were afraid for their family. They were told
that applicant was going to shoot them.
One time, Dalinda was run over by a flatbed trailer, and applicant came over and picked her
up. When he did, he asked if she thought he did it (killed her father), and she said “no.” It was the
only time the murders ever came up between them.
When the capital-murder warrant against applicant was issued and it appeared in the
newspaper, applicant left home. United States Marshals were unable to find him at first because he
was turning his cell phone on and off. Applicant also called people to try to find out what they were
going to be able to testify about him. One of the people he contacted was Dalinda. The United
States Marshals were able to trace the call and track applicant to a Days Inn in Paris, Texas, where
he was hiding out.
B. Janie’s Statement
After the case was reopened, Janie was interviewed by Special Agent VanderVlugt of the
United States Secret Service. Initially, she told him that applicant was home the night of the
murders, but after taking a polygraph test and being told she failed, she gave a written statement in
which she implicated applicant in the murders. At trial she disavowed the parts of her statement that
implicated applicant. In light of the other evidence of applicant’s guilt outlined above, Janie’s
recantation of her written statement would not have made any difference, even without the reference
to her failing a polygraph test. I do not think that the jury would have believed Janie’s recantation.
Janie’s written statement was witnessed and signed by two law-enforcement officers. She
put her initials at the beginning and end of each paragraph and she signed it at the end. I have
BRYANT DISSENT — 6
appended a copy of the statement to this opinion. In comparing this statement with her trial
testimony, I do not think it is remotely likely that the jury would have credited her testimony instead
of the written statement.
A sheriff, a Texas Ranger, and a Secret Service agent all testified that Janie had said what
was in her written statement. They testified that they did not coerce her and that she gave the
statement voluntarily. The prosecutor took them line-by-line through the statement and they
confirmed that she said each sentence that inculpated applicant.
Janie had nothing to gain by implicating applicant, but plenty to lose. The written statement
itself explains why Janie would later recant: “Bill told me that if I ever told anyone that he and
Kenneth killed Johnny and Sarah, he would hurt me. I understood this to mean that he would hurt
me, my children and my family.” Sheriff Reed said that when Janie was at the Sheriff’s office
twenty years after the murders, she was still afraid of applicant.
At trial, Janie said that she signed the written statement because she was scared: “There was
cops over there.” As to its truthfulness, she said, on the one hand, “A lot of things I said in that
statement is not true, because I was scared.”3 There are a number of statements that she specifically
admitted making, but said were not true. On the other hand, she also said about certain things in the
statement, “That’s put on that paper, but I didn’t say that right there.”4 Also, “What was said didn’t
get on that piece of paper.”5 In other words, according to Janie, the officers were able to make her
say things that were not true because she was scared, but apparently they could not make her say
3
Emphasis added.
4
Emphasis added.
5
Emphasis added.
BRYANT DISSENT — 7
everything they wanted so they added it themselves.
In order for the polygraph evidence to have changed the outcome of this trial, it would have
had to move the jury from a level of confidence less than “beyond a reasonable doubt” to “beyond
a reasonable doubt.” I believe that the jury would have credited the written statement instead of
Janie’s testimony even if the polygraph evidence had not been introduced. In light of the lack of
credibility of her trial testimony and in view of the other evidence of applicant’s guilt, I do not
believe that applicant has met his burden to show that he is entitled to relief.
C. Why Didn’t The Children Speak Up Earlier?
They were scared of applicant. Mitchell was a criminal. Kenneth was a violent man who
was involved in manufacturing methamphetamine, counterfeiting money, and setting up an insurance
scam. Johnny was himself extremely violent and was also involved in stealing drug precursors,
counterfeit plates, and money. Nevertheless, the children promptly implicated Kenneth and Mitchell.
This is why: Applicant wanted to kill them; Kenneth didn’t. Mitchell testified at trial that it was his
impression that applicant wanted to kill them and Kenneth saved their lives. At the scene of the
murders, Kenneth and applicant were arguing behind one of the children, and Kenneth was telling
the kids to get into the house. Even after the three men left the house and went back to the car,
Kenneth and applicant were arguing about the kids. Applicant wanted to go back and kill them
because they had witnessed the murders, and Kenneth wanted to leave them alone. Applicant was
the only one the children felt threatened by, so he was the only one whose identity they hid.6
6
Aaron had another reason to keep quiet when he got older. When the case was reopened,
the sheriff went to the prison where Aaron was incarcerated. Even though Aaron did not feel safe
talking to them – and did not talk to him – he was assaulted the next day by members of the Aryan
Brotherhood for possibly talking to the sheriff about the murders. After the trial, Aaron went into
protective custody, where he spends only one hour a day out of his cell.
BRYANT DISSENT — 8
Moreover, at least one of them did speak up earlier, although not to the authorities. Aaron
told his Aunt Pat–Johnny’s sister–and he told his psychiatrist.
Finally, like Janie, Aaron and Dalinda had no motive to falsely accuse applicant and nothing
to gain by doing so. If anything, Dalinda had a reason not to falsely accuse him because he had given
her a job when she needed one.
D. Conclusion
It took over twenty years to get the witnesses against applicant to come forward and testify
against him. Janie, Dalinda, Mitchell, and Mitchell’s parents were afraid of him because he killed
Johnny and Sarah, threatened to kill the children, threatened to kill Janie and her family, and
threatened to kill Mitchell and his parents. They are still afraid of him.
The Court says that the record supports the conclusion that applicant has established
prejudice, but because the habeas court recommended denying relief, the record should be viewed
in the light most favorable to that recommendation. While there is evidence in this case that would
support a recommendation to grant relief, there is more than enough evidence to support a
recommendation to deny relief. The habeas judge was also the trial judge, and it is obvious from the
record that he remembers the trial testimony vividly. I would deny relief.
I respectfully dissent.
Filed: November 19, 2014
Publish
TEXAS DEPARTMENT OF PUBLIC SAFETY
TEXAS RANGER DIVISION
VOLUNTARY STATEMENT (NOT UNDER ARREST)
THE STATE OF TEXAS
COUNTY OF RED RIVER
Before me tbe undersigned au&ority inand for said County and State, on this day, Tuesday, May 01,2007
penally ^jpeared. Janie Mussett, W/F, 07-21-1954. address isP.O. Box 344. (RL 2Baker Road) VaUiant,
Oldahoma 74764, phone number is580-933-7972, vibo, afierbdng by me duly swom. dqKses and says:
IUyed wifli Bill Bryantfor q)pn)ximately two years be^rming around October of 1985. Bill was good fiiends
witti Kennefli Raulston. Kennedi's wife was SaiaL(^/T*
\ MysisterSteUawas^^to Johnny Victory. AfterBill and Ihad lived togetherfor about ayear, Johnny and
Stella sqwiated mdKennefli and Sarah separated. Johnny started living vrith Sarah Raulston and Kenneth
st^d hvu^^A^lli Kenneth became vayjealousbccause Johnny was wiflili^ with Sarak Ionce
heard Keme& say fliat he did not like itbecause Johnny was living wifli Sarah inMs, Kenneth's house and
spmdmg hi^ Kemp's monqr. Stella once told me fliatJdinnykidnq^jed Kenneth, hit Kameth indie head
vnth a gun several dtfiferenttmies and sexually assaulted Kenneth intheanus.
ww leare-bve, me Iwitnessed Johnny beat Stellaiq) at Marie's Tavern inValliant, Oklahoma. Johnny
1^h^ mStella sprivate parts viAen he assaultedher. Johnny also cut Stella's fece with aknife.
Arkansas Weall stayedone
AftertheyretiimedtothernoteI.Billtold
BiU^aiupsetwithKemiethandBiUtoldme
th^rfiS^^ M
them^before. DonEdIS D
an attorney. o nEd told us ftat Johnny and Sarahhad beenMUed
Hisreallyi5>setStella.^;T^
££oS ^ ^ told hermethat Ihomas Stringer,Jim Ed
Ashorttime lats,Bfll and Imovedto MillHton, Oklahoma.
Signature
Date: 05-01-2007 Time: 3:12 PM
Witness
^ 118
1 deep breath and relax, and these attorneys have some questions
2 they want to ask you. You're among friends and neighbors, so
3 just take a deep breath and relax.
4 AARON PAUL VICTORY
5 having been first duly sworn, testified as follows:
6 , DIRECT EXAMINATION
7 BY MR. VARLEY:
8 Q Go ahead and introduce yourself to the jury,
9 A I'm Aaron Paul Victory.
10 Q Aaron Paul Victory?
11 A Yes, sir.
12 Q The acoustics in this large room, it's hard to hear,
13 so if you don't hear me, let me know, and speak where they can
14 all hear you on the jury. Okay?
15 A Yes, sir.
16 Q And where are you currently residing?
17 A Presently in Oklahoma State Penitentiary.
18 Q And why are you in the state penitentiary?
19 A For eluding and burglary.
20 Q Eluding?
21 A . Yes, sir.
22 Q Okay, what did you do?
23 A I got pulled over, sir, and they told me to stop and
24 I didn't, and I ran. And when I was on something, I seen a
25 four-wheeler and I jumped on the four-wheeler and I took off,
Mrs. Lucille Collins, C.S.R.
Official Court Reporter. 102nci Judicial District of Texas
204 Oak Hill Road, Texarkana, Texas 75501
(903) 838-4031
119
1 and they finally caught me and I'm in prison for it now.
2 Q Eluding, and stealing a four-wheeler?
3 A Yeah, I saw the four-wheeler there and I got on it
4 and l e f t .
5 Q Okay. You are the son of Johnny Victory. Is that
6 right?
7 A Yes, sir.
8 Q And your mama was...
9 A Stella Victojry.
10 Q And is she s t i l l alive?
11 A No.
12 Q And your sister is Dalinda, and your other brother
13 is Jonathan? Is that right?
14 A Yes, sir.
15 Q We're talking about something that happened way back
16 in 1987. Okay? When your dad and Sarah Raulston were murdered.
17 Do you remember that?
18 A Yes, sir.
19 Q Where had you been just prior to going back to or
20 going to Sarah's house?
21 A We was at the Pizza Hut in Idabel, eating pizza.
22 Q Idabel, at Pizza Hut?
23 A Yes, sir.
24 Q Okay, and who was with you?
25 A My brother and sister, Dalinda Victory and Jonathan
Mrs. Lucille Collins, C.S.R.
Official Court Reporter, 102nd Judicial District of Texas
204 Oak Hill Road, TexarlAnd then you got five years for grand larceny at the
24 same time. Is that right?
25 A Yes, sir.
Mrs. Lucille Collins, C.S.R.
Official Court Reporter, 102nd Judicial District of Texas
204 Oak Hill Road, Texarkana, Texas 75501
. (903) 838-4031
127-
1 Q And five years for second degree burglary at the
2 same time.
3 A Sir, I have to go back on the five years. I got
4 twelve years on all my cases when I was eluding. I don't know
5 where the five come from, but it's all twelve. It's all
6 seventeen, and I got twelve and five years probation.
7 Q In Oklahoma I think you get probation after you have
8 been in the penitentiary. Is that right?
9 A Yes, sir.
10 Q I'm just looking at the different offenses, and I
11 understand they are all running at the same time or running
12 concurrently; but there was two grand larceny, two second
13 degree burglary, burglary of an automobile, eluding or
14 attempting to elude a police officer for five years and the
15 same offense for twelve years. Then a second degree burglary
16 for twelve years and another second degree burglary for twelve,
17 burglary of a motor vehicle for twelve years, and then they've
18 got something here for felon with a firearm. Does that all
19 sound familiar to you?
20 A Yes, sir.
21 Q And do you remember giving a statement initially,
22 after your father was killed, like the next day or two?
23 A ' In the statement--! don't remember much of a
24 statement.
25 Q Do you remember doing that, though?
Mrs. Lucille Collins, C.S.R.
Official Court Reporter, 102nd Judicial District of Texas
204 Oak Hill Road, Texarkana, Texas 75501
(9031 838-4031
128
1 A Yeah, • I remember talking to officials and stuff.
2 Q And that was just a day or two after it happened.
3 A I don't know if i t was a day or two or what, but I
4 remember doing it.
5 Q Did they talk to you more than once?
6 A Yes, sir.
7 Q And at that time you were eight years old. You
8 weren't a guy that had been to prison two or three times at
9 that point. Is that right?
10 A That's right.
11 Q And.you don't remember telling them that Kenneth
12 Raulston was there?
13 A Excuse me, sir?
14 Q Do you remember telling them that Kenneth Raulston
15 was there?
16 A Yes, sir.
17 Q Do you remember telling them that Tom was there?
18 A Yes, sir.
19 Q And did you ever tell them that Mitchell Dickey was
20 there?
21 A Yes — I don't remember, sir, about Mr. Dickey.
22 Q Did you know Mr. . .
23 A Yes.
24 Q Dickey?
25 A Yes, sir.
Mrs. Lucille Collins, C.S.R.
Official Court Reporter, 102nd Judicial District of Texas
204 Oak Hill Road, Texarkana, Texas 75501
(9031 838-4031
129
1 Q And you have never told anybody that Bill Bryant was
2 involved until today? Is that right?
3 A Excuse me, sir?
4 Q Have you told anybody this story that Bill Bryant
5 was involved in this thing until today?
6 A No, sir, I told my aunt. My aunt that got us back,
7 my Aunt Pat. My dad's sister. I told her. She contacted
8 people, I guess, and told them, and I told my psychiatrist.
9 Q Your psychiatrist?
10 A Yeah.
11 Q And you loved your daddy, obviously.
12 A Yes, sir.
13 Q You would like to get back at whoever hurt him.
14 A Not to get back, sir, no. Just for them to pay for
15 what they did. . I don't want to get back at nobody, sir.
16 Q Thank you, Mr. Victory. I'll pass the witness.
17 ( MR. VARLEY; No further questions.
18 THE COURT: Sir, you may stand down. Call your
19 next, Mr. Varley.
20 MR. VARLEY: I call Janie Mussett.
21 JANIE MUSSETT
22 having been first duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. VARLEY:
25 Q State your name, please.
Mrs. Lucille Collins, C.S.R.
Official Court Reporter, 102ncl Judicial District of Texas
204 Oak Hill Road, Texarkana, Texas 75501
(903) 838-4031