Harbin, James Berkeley Ii

WRIT NO. W91-22107-Q(A)

EX PARTE § IN THE 204th JUDICIAL
RECEIVED
COURT OF CRIMINAL APPEALS
1/14/2015
§ ABEL ACOSTA,
DISTRICT COURT CLERK

JAMES BERKELEY HARBIN II § DALLAS COUNTY, TEXAS

STATE’S OBJECTIONS TO TRIAL COURT’S
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDATION OF TRIAL COURT ON
APPLICATION FOR WRIT OF HABEAS CORPUS

Comes now the State of Texas and makes the following objections to the

Court‘s findings of fact and conclusions of law, which were signed by the Court on

December 16, 2014:

I.

SUMMARY

Applicant filed the instant habeas application raising the following grounds

for relief: (1) ineffective assistance of counsel at trial; and (2) Brady violation.

Over the course of nearly a year, multiple hearings were conducted regarding

Applicant‘s claims. On October 31, 2014, Applicant filed proposed findings of

fact and conclusions of law. The State filed proposed findings on December 10,

2014. (See Exhibit A). On December 16, 2014, the Court entered findings

1
rejecting the State‘s laches argument and recommending that relief be granted on

all of Applicant‘s claims.1

The State objects to the Court‘s findings of fact and conclusions of law. The

Court‘s findings are not supported by the record. Indeed, many of the findings are

based on pure speculation and are not supported by any evidence.

II.

HISTORY OF THE CASE

Applicant pleaded not guilty to the murder of his father, James Harbin, Sr.

The jury found Applicant guilty and, on April 29, 1991, sentenced him to

confinement for life in the Institutional Division of the Texas Department of

Criminal Justice. Applicant‘s conviction was affirmed by the Fifth District Court

of Appeals on August 6, 1992. See Harbin v. State, No. 05-91-00621-CR (Tex.

App.—Dallas August 6, 1992) (not designated for publication).

On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus.

Applicant subsequently filed four amended responses. The Court conducted

evidentiary hearings on February 21, 2014, May 9, 2014, May 29-30, 2014, August

22, 2014, and August 28, 2014. Applicant presented testimony from the following

witnesses: Dr. Randy Price, Matt Fry, Gary Smart, David Dunlevy, Paula Collins,

1
The State will refer to the Court‘s December 16, 2014 Findings of Fact and Conclusions of Law
as ―FOFCOL.‖

2
Candace Harbin, George Cole, Ginger Cole, and Julie Badii. The State presented

the testimony of Teresa Harry. The Court issued its ruling on December 16,

2014.2

III.

THE STATE’S 12/10/14 PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 10, 2014, the State filed Proposed Findings of Fact and

Conclusions of Law. In this pleading, the State set forth the facts and argument

supporting its position that Applicant‘s claims are barred by the equitable doctrine

of laches and that, in any event, Applicant failed to prove that trial counsel

rendered ineffective assistance and he failed to prove that the State suppressed

evidence at trial. Those findings and conclusions, including any and all exhibits,

are hereby incorporated in their entirety by reference and are attached as Exhibit

A).

IV.

LACHES

The State objects to the Court‘s findings that laches should not apply in this

case. (See FOFCOL pp. 20-22). In fact, this is a classic laches case: there are

dead witnesses, lost or destroyed records, and degraded memories.

2
The State was not served with a copy of the Court‘s findings. The State learned of the Court‘s
decision on December 29, 2014 when the undersigned searched the Dallas County District
Clerk‘s online records database to see whether any findings had been issued.

3
 Pertinent Facts

On April 29, 1991 Applicant was sentenced to life in prison for the murder

of his father. His conviction was affirmed by the court of appeals on August 6,

1992. His petition for discretionary review was refused by the Court of Criminal

Appeals. Mandate issued on March 8, 1993.

On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus.

Applicant alleged that he was unable to file his application before 2010 for the

following reasons:

[A] substantial part of the evidence presented in this writ application
was not available to Applicant prior to the Fall of 2008. At that time,
the Dallas County District Attorney‘s Office adopted a policy that
allowed attorneys representing persons on Applications for Writ of
Habeas Corpus to review the District Attorney‘s trial files. Much of
the evidence submitted in support of this writ application only became
available to Applicant after this policy went into effect. Under Perez,
this constitutes a justifiable reason for Applicant not filing this
Application sooner.

(See Applicant‘s Response to State‘s Laches Argument, p. 2).

Argument

The State objects to the Court‘s findings that laches should not apply in this

case. (See FOFCOL pp. 20-22). In Ex parte Perez, the Court of Criminal Appeals

stated that a court may reject a State‘s laches argument in the following situations:

(1) when the applicant‘s delay is not unreasonable because it was due to a

4
justifiable excuse or excusable neglect; (2) when the State would not be materially

prejudiced as a result of the delay; or (3) when there are compelling reasons for

granting relief, including evidence showing actual innocence or that the applicant

is reasonably likely to prevail on the merits of his claims. See Ex parte Perez, 398

S.W.3d 206, 218 (Tex. Crim. App. 2013).

The delay in the filing of Applicant’s writ
is unreasonable and unjustified

The State objects to the Court‘s implicit finding that Applicant‘s delay in

filing his writ (the District Attorney‘s 2008 open file policy) is justified. (See

FOFCOL pp. 20-22). Applicant has raised two grounds for relief on habeas:

ineffective assistance and Brady violation. Applicant‘s contention that he received

ineffective assistance from trial counsel, Matt Fry, is not based on information

discovered pursuant to the open file policy. Applicant‘s claims regarding Fry

revolve around his argument ―that defense counsel failed to investigate mitigating

evidence and failed to properly and adequately present mitigating evidence to the

jury at the sentencing hearing.‖ (FOFCOL p. 4). In support of his claim,

Applicant presented testimony and/or affidavits from Dr. Randy Price, his mother

(Ginger Cole), two of his sisters (Julie Badii and Candace Harbin), his aunt (Paula

Collins), and several friends (Daniel Dunlevy, Kyle Pendleton, Sam Pendleton).

He presented a re-print of a 1988 letter from the complainant‘s psychiatrist, Dr.

Daniel Pearson, to the Texas Rehabilitation Commission. (See Memorandum in

5
Support of Application for a Writ of Habeas Corpus, Exhibit 2). None of this

evidence came from the District Attorney‘s file.3 Applicant failed to articulate a

legitimate reason for waiting nearly twenty years to complain that Fry was

ineffective.

Next, Applicant‘s claim regarding the open file policy as it pertains to his

Brady argument is disingenuous. As such, the Court‘s finding that ―Laches does

not apply to this case based on the fact that the evidence discovered in the District

Attorney‘s files was not available to Applicant prior to late 2008,‖ is not supported

by the record. While it may be true that in 2008 the State began opening its files

in post-conviction proceedings, the record does not show that Applicant ever made

any attempt to gain access to the State‘s files prior to the filing of the instant writ in

2010. Indeed, the record does not show that after his conviction became final in

1993 Applicant ever made any attempt to challenge his conviction on any basis

until 2010. The fact that Applicant did not make any attempt to challenge his

conviction for seventeen years demonstrates a clear lack of diligence in asserting

his rights.

3
The State recognizes that a variation of this letter was found in the State‘s trial file. The State‘s
argument as it relates to this letter is addressed in connection with its arguments regarding
Applicant‘s Brady claims.

6
 Applicant failed to show that the delay in the filing of his writ was in any

way reasonable. The State objects to any findings to the contrary as they are not

supported by the record.

The State is materially prejudiced
by Applicant’s delay in filing his writ

The State objects to the Court‘s finding that it ―rejects any claim that the

state has been prejudiced as required for an application of laches.‖ (FOFCOL p.

21). During the habeas proceedings, the State urged two distinct reasons for the

application of laches in this case: (1) the delay has prejudiced the State‘s ability to

respond to the allegations contained in the writ and (2) the delay will prejudice the

State in its ability to re-try Applicant should relief be granted. Importantly, the

Court‘s findings fail to address the State‘s first argument. The Court does address

the State‘s second argument, but those findings are not supported by the record.

First, the State is materially prejudiced in its ability to respond to and defend

against the allegations contained in Applicant‘s writ. Applicant contends that trial

counsel Matt Fry was ineffective because he failed to investigate and present

evidence at punishment regarding the complainant‘s mental illness. As a threshold

matter, because of Applicant‘s delay, the State is now in the position that it is

unable to admit or deny the extent of the complainant‘s mental illness and whether

his mental illness caused him to become violent. None of the complainant‘s mental

health records were admitted at trial. By the time of the evidentiary hearings in

7
2014, his mental health records had been destroyed and were no longer available.

(WR5:57, 67-68). His psychiatrist, Dr. Pearson, had passed away. And a doctor

who treated him at Willowbrook Hospital, Dr. Ricardo Shack, has no recollection

of treating him. (WRR5:67-68).

It is undisputed that the complainant suffered from some form of mental

illness. The dispute regarding the complainant‘s illness concerns the nature and

extent of that mental illness. The only available mental health record is a 1991 re-

print of a 1988 report written to the Texas Rehabilitation Commission,

summarizing the complainant‘s mental health. (DX#11). This letter does not

identify the complainant‘s specific diagnosis. It merely identifies a series of

symptoms exhibited by the complainant. Given the lack of medical records or

medical testimony, any finding by the Court regarding the complainant‘s diagnoses

or that the complainant‘s mental illness rendered him violent is without basis in the

record and is purely speculative.

Had Applicant challenged his conviction closer in time to his conviction, the

State may have been able to challenge his allegations with the complainant‘s

medical records and/or testimony from the complainant‘s treating physicians. Had

Applicant challenged his conviction closer in time to his conviction, the State may

have had at least the opportunity to present additional family members‘ testimony

8
regarding the complainant‘s behavior/temperament in the year and a half preceding

his death.

As to Fry‘s investigation of the complainant‘s mental illness, the State is

again unable to refute Applicant‘s allegations. At the evidentiary hearing, Fry

could not even identify Applicant as his former client, much less describe the

minutiae of his representation. (WRR2:12). To make matters worse, Fry testified

that he was unable to locate his complete file. (WRR2:13). He was only able to

locate a few documents. (WRR2:13-14; DX#2). He had little to no recall of the

necessary details regarding Applicant‘s case. (WRR2:16-17, 19, 20, 21, 22, 23,

27, 28, 29, 33, 34, 36-37, 41). He did not recall every witness contact. (WRR2:19,

28). He did not recall who testified at trial. (WRR2:19-20). This is no small

wonder as Applicant had been convicted over 20 years before. Had Applicant

challenged his conviction closer in time to his conviction, Fry may have had a

better recollection of his representation or he may have been able to locate his

complete file.

The State is also hamstrung in its ability to respond to Applicant‘s Brady

claim. As stated, Fry‘s memory had degraded. He did not recall the nature of any

pre-trial disclosures made by the prosecution. (WRR5:33). Former prosecutor,

Gary Smart, testified at the evidentiary hearing that he recalled some details of

Applicant‘s case, but he did not have a complete recollection of trial or his

9
investigation and preparation of Applicant‘s case. (WRR3:54-72). He did not

recall where he obtained certain documents that were located within his file.

(WRR3:62-63). He did not recall what he disclosed to the defense prior to trial.

(WRR3:55-56, 62-63). Given Smart‘s degraded memory and the lack of Fry‘s

complete file – which, might have contained notes regarding the State‘s disclosures

or, at the very least, would have shown what Fry had in his possession – the State

is unable to admit or deny Applicant‘s claim that evidence was suppressed.

Second, the State will suffer material prejudice in the event that Applicant

must be retried. The Court‘s findings recite that ―The Court is recommending a

new sentencing hearing and the Court finds that the state is fully able to present

their evidence and arguments at a new sentencing hearing.‖ (FOFCOL p.21). The

Court‘s finding is not supported by the record. As argued above, the State is

unable to prove or disprove the extent of the complainant‘s mental illness (and

whether that illness caused him to be violent) on habeas. It stands to reason that if

the State is unable to make this showing on habeas, it is unlikely that it will be able

to do so in the event of a new punishment hearing. The extraordinary delay in

filing of the instant writ has compromised the reliability of any future trial

proceedings.

The State has proven material prejudice. The State objects to any findings to

the contrary as they are not supported by the record.

10
 Applicant is not reasonably likely
to prevail on the merits of his claims

The State objects to the Court‘s finding that Applicant ―is reasonably likely

to prevail on the merits [of his claims].‖ (FOFCOL p. 21). This is not a case

involving a claim of actual innocence. It is undisputed that Applicant murdered

his father. Applicant is merely seeking a new trial on punishment. The basis for

both of his claims for relief revolves around his argument ―that the jury had

inadequate information at the punishment hearing to understand the reason why he

killed his father.‖ (FOFCOL p. 3). A review of the transcript of Applicant‘s trial,

however, shows that the complainant‘s mental illness was before the jury. The

State hereby incorporates the facts and argument set out in the State‘s Proposed

Findings of Fact and Conclusions of Law. (See Exhibit A, pp. 10-11, 13-34, 36-

44).

Applicant is not reasonably likely to prevail on the merits of his claims. The

State objects to any findings to the contrary as they are not supported by the

record.

V.

INEFFECTIVE ASSISTANCE OF COUNSEL

The State objects to the Court‘s finding that Fry rendered ineffective

assistance. (FOFCOL pp. 12-20). The State hereby incorporates the facts and

11
argument set out in the State‘s Proposed Findings of Fact and Conclusions of Law.

(See Exhibit A p. 13-34).

VI.

BRADY VIOLATION

The State objects to the Court‘s finding that prosecutor Smart withheld

exculpatory or mitigating evidence. (FOFCOL pp. 6-12). The State hereby

incorporates the facts and argument set out in the State‘s Proposed Findings of Fact

and Conclusions of Law. (See Exhibit A p. 36-44).

VII.

CONCLUSION

The State objects to the Court‘s findings and conclusions and

recommendations in this case. In effect, this Court‘s ruling allows an applicant to

sleep on his rights, thereby allowing the passage of time, the destruction of

evidence and the fading of memories. This Court‘s ruling allows the applicant to

then use to his own advantage that lack of evidence to challenge a conviction that

has stood firm for more than two decades. This Court‘s ruling wholly fails to

consider ―how [Applicant‘s delay in filing his writ] has affected the State, and

whether, in light of the delay, it is fair and just to grant him relief.‖ Perez, 398

S.W.3d at 218-19.

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 The State respectfully requests that this Court review the State‘s Proposed

Findings of Fact and Conclusions of Law as well as the State‘s objections,

reconsider the Court‘s previous findings, and issue new findings of fact and

conclusions of law recommending that relief be denied on the basis of the equitable

doctrine of laches or, in the alternative, that relief be denied because Applicant

failed to prove trial counsel rendered ineffective assistance and he failed to prove

that the State violated Brady.

Respectfully submitted,

_________________________
Susan Hawk Christine Womble
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24035991
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 (fax)
CWomble@dallascounty.org

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document contains 2,803 words, inclusive

of all content.

__________________________
Christine Womble

13
 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing document was served on

Applicant‘s counsel, Gary Udashen, via email on January 14, 2015.

_________________________
Christine Womble

14
EXHIBIT A
EXHIBIT A
EXHIBIT A

15
 WRIT NO. W91-22107-Q(A)

EX PARTE § IN THE 204th JUDICIAL

§ DISTRICT COURT

JAMES BERKELEY HARBIN II § DALLAS COUNTY, TEXAS

STATE’S PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND ORDER

On this, the _____ day of ____________, 2014, came on to be considered

Applicant‘s Application for Writ of Habeas Corpus, the State‘s Responses, and

both parties‘ amended and supplemental responses. Having considered these

pleadings and the official court records, all exhibits and affidavits offered by both

parties, as well as testimony and evidence offered at the evidentiary hearings

conducted on February 21, 2014, May 9, 2014, May 29-30, 2014, August 22, 2014,

and August 28, 2014, the Court enters the following findings of fact and

conclusions of law.

VIII.

HISTORY OF THE CASE

Applicant pleaded not guilty to murder. The jury found Applicant guilty

and, on April 29, 1991, sentenced him to confinement for life in the Institutional

Division of the Texas Department of Criminal Justice. Applicant‘s conviction was

affirmed by the Fifth District Court of Appeals on August 6, 1992. See Harbin v.

State, No. 05-91-00621-CR (Tex. App.—Dallas August 6, 1992) (not designated

16
for publication). His petition for discretionary review was refused by the Court of

Criminal Appeals. Mandate issued on March 8, 1993.

On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus. The

State timely filed its response. On September 28, 2010, the parties entered into an

agreed discovery order and habeas counsel was permitted to review the district

attorney‘s trial file in the instant cause.

Applicant subsequently filed four amended responses. The State filed a

supplemental response on May 28, 2014.

In his Fourth Amended Application for Writ of Habeas Corpus, Applicant

raises the following grounds for relief:

1. Ineffective assistance of counsel at trial, and
2. Brady violation.

This Court conducted multiple evidentiary hearings in connection with the

instant writ. Over the course of these hearings, Applicant presented testimony

from the following witnesses: Dr. Randy Price, Matt Fry, Gary Smart, David

Dunlevy, Paula Collins, Candace Harbin, George Cole, Ginger Cole, and Julie

Badii. The State presented the testimony of Teresa Harry.

IX.

GENERAL FINDINGS

1. The Court takes judicial notice of the entire contents of the Court‘s file in

17
 Cause No. F91-22107.

2. The Court takes judicial notice of all three volumes of the reporter‘s record
of the trial, which was conducted in April 1991 in the aforementioned cause
4
number. Citations to this record will be ―RR-.‖

3. The Court takes judicial notice of the entire contents of the Court‘s writ file
in Cause No. W91-22107-Q(A).

4. This Court takes judicial notice of all eight volumes of the reporter‘s record
of the evidentiary hearings conducted on the instant writ. Citations to this
record will be ―WRR-.‖

X.

LACHES

Applicant‘s claims are barred by the doctrine of laches. Applicant waited

more than nineteen years since his conviction to file the instant Application for

Writ of Habeas Corpus. This nearly twenty-year delay has prejudiced the State‘s

ability to respond to and refute the allegations raised in the writ. Should this Court

grant relief on Applicant‘s claims, the State would be additionally prejudiced in its

ability to retry Applicant.

Applicable Law

In Ex parte Carrio, the Court of Criminal Appeals described the equitable

doctrine of laches as follows:

4
The reporter‘s record of the trial is not dated except for a notation on the cover that the case
came to be heard on April 22, 1991. Page 724 of Volume 3, the date of the jury‘s verdict on
punishment, however, is dated April 29, 1991. (RR3:724).

18
 The doctrine of laches is based upon the maxim that equity aides the
vigilant and not those who slumber on their rights. It is defined as
neglect to assert right or claim which, taken together with lapse of
time and other circumstances causing prejudice to an adverse party
operates as a bar in a court of equity. Also, it is the neglect for an
unreasonable and unexplained length of time under circumstances
permitting diligence, to do what in law, should have been done.

992 S.W.2d 486, 487 n.2 (Tex. Crim. App. 1999) (internal quotations omitted).

Laches should be considered in determining whether to grant relief in a case on

habeas. Id. at 488; see also Ex parte Perez, No. AP-76,800, 2014 Tex. Crim. App.

LEXIS 1509, at *7-8 (Tex. Crim. App. Oct. 8, 2014) [hereinafter Perez II].

Indeed, the Court has recently stated ―that laches should apply as a bar to relief

‗when an applicant‘s unreasonable delay has prejudiced the State, thereby

rendering consideration of his claims inequitable.‘‖ Ex parte Perez, 398 S.W.3d

206, 219 (Tex. Crim. App. 2013) [hereinafter Perez I].

In deciding whether laches applies as a bar to relief in a particular case, a

reviewing court should consider the totality of the circumstances. Perez I, 398

S.W.3d at 215. Relevant considerations may include: the length of the delay; the

reasons for the delay; and the degree and type of prejudice resulting from the

delay. Perez I, 398 S.W.3d at 217. Significantly, the State is no longer required to

make a ―particularized showing of prejudice.‖ Perez II, 2014 Tex. Crim. App.

LEXIS at *7 (citing Perez I, 398 S.W.3d at 208, 211–212). The determination of

prejudice ―permit[s] consideration of anything that places the State in a less

19
favorable position[.]‖ Id. This may include the State‘s ability to respond to the

allegations in an application or the State‘s ability to retry a defendant. See id. at

215–16. The State may suffer prejudice ―as a result in [a] delay in light of the

faded memories of witnesses and the lack of available evidence, both of which

[will] compromise[] the reliability of any future trial proceedings. Perez II, 2014

Tex. Crim. App. LEXIS at *21-22 (citing Perez I.398 S.W.3d at 219).

Importantly, ―the extent of the prejudice the State must show bears an

inverse relationship to the length of the applicant‘s delay . . . the longer an

applicant delays filing his application, and particularly when an applicant delays

filing for much more than five years after conclusion of direct appeals, the less

evidence the State must put forth in order to demonstrate prejudice.‖ Perez I, 398

S.W.3d at 217–18 (emphasis added).

An applicant facing the possibility of dismissal on the theory of laches must

provide a reasonable or justifiable excuse as to the reason for his delay. Ex parte

Smith, 444 S.W.3d 661, at 14 (Tex. Crim. App. 2014). He is expected ―to, at the

very least, make diligent inquiries and take steps to educate himself about the

proper procedures for seeking additional review.‖ Perez II, 2014 Tex. Crim. App.

LEXIS at *20-21.

The Court of Criminal Appeals has cautioned that laches should be used

sparingly, but that it should be used specifically in ―applications demonstrating an

20
excessive delay that undermine[] or obstruct[] the principles and virtues the

criminal-justice system promotes.‖ Smith, 2014 Tex. Crim. App. LEXIS at*14.

The Court stated:

Protracted habeas corpus litigation defers convictions‘ finality,
―undermines confidence in the integrity of our procedures and
inevitably delays and impairs the orderly administration of justice.‖
This in turn weakens the criminal law‘s deterrent and rehabilitative
functions. ―There must come a time when a criminal conviction is
final, when the deterrent effects of certainty and immediacy of
punishment outweigh an inmate‘s right to endlessly litigate an appeal
of his conviction.

Smith, 2014 Tex. Crim. App. LEXIS at 11-12 (quoting Ex Parte Steptoe, 132

S.W.3d 434, 437–38 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).

Findings of Fact

1. Applicant murdered his father, James Berkeley Harbin (hereinafter ―the
complainant‖), on January 8, 1991. Following a trial by jury, he was
convicted and sentenced to life in prison on April 29, 1991. His conviction
was affirmed by the Fifth District Court of Appeals on August 6, 1992.
Mandate issued on March 8, 1993.

2. Applicant filed the instant Application for Writ of Habeas Corpus on June
24, 2010. He filed multiple amended applications. The first evidentiary
hearing took place on February 21, 2014. The final hearing took place on
August 28, 2014.

3. Approximately nineteen years passed between Applicant‘s conviction and
the filing of his application.

4. Applicant‘s defense at trial was that he murdered the complainant in self-
defense. He alleged that prior to his death, the complainant was mentally
ill and violent.

5. None of the complainant‘s medical or mental health records were

21
 introduced into evidence at Applicant‘s trial.

6. Prior to his death, the complainant was treated by psychiatrist Dr. Daniel B.
Pearson, Jr.. There is no evidence showing the date that Dr. Pearson last
treated the complainant.

7. Dr. Pearson did not testify at Applicant‘s trial.

8. Dr. Pearson‘s records regarding the complainant have been destroyed. The
specific date of destruction is unknown. The only available medical record
is a 1991 re-print of a 1988 report written to the Texas Rehabilitation
Commission, summarizing the complainant‘s mental health. (DX#11).

9. Dr. Pearson‘s 1991 reprint of his 1988 letter does not identify the
complainant‘s specific diagnosis. It merely identifies a series of symptoms
exhibited by the complainant.

10. Dr. Pearson died on January 23, 2013. (SX#4).

11. The complainant was treated by Dr. Ricardo Shack in 1989 at Willowbrook
Hospital. (WRR5:57). Willowbrook Hospital no longer in exists.
(WRR5:67). Willowbrook Hospital has since destroyed it‘s records.
(WRR5:67). Dr. Shack has since destroyed his own records regarding the
complainant. (WRR5:67-68). Dr. Shack has no recollection of treating the
complainant. (WRR5:67-68).

12. It is undisputed that the complainant suffered from some form of mental
illness. Given the lack of medical records or medical testimony, however,
it is impossible to make any specific finding regarding the complainant‘s
diagnoses and the nature or extent of any treatment he may have received.
It is also impossible to make any finding that the complainant‘s mental
illness caused the complainant to be violent.

13. Given the lack of medical records and the lack of medical or psychiatric
testimony, the State is unable to refute Applicant‘s claim that the
complainant was mentally ill and that the complainant‘s mental illness
rendered him violent.

14. Had Applicant challenged his conviction closer in time to his conviction,
the State may have been able to refute his allegations with the

22
 complainant‘s medical records and/or testimony from the complainant‘s
treating physicians. At this late date, the records are unavailable, and the
complainant‘s physicians are either dead or have no memory of the
complainant.

15. Because of Applicant‘s delay in filing his writ, the State is also unable to
call witness Hanna Fuller in an effort to refute his claims. The complainant
lived with Applicant and his sister, Hanna Fuller, in the year and a half
preceding his death. Given the fact that they shared a home, Fuller may
have been able to provide testimony as to the complainant‘s behavior or
any interactions she observed between Applicant and the complainant.
Hanna Fuller died in 2004. (SX#5).

16. Had Applicant challenged his conviction closer in time to his conviction,
the State may have had at least the opportunity to present Fuller‘s
testimony regarding the complainant‘s behavior/temperament in the year
and a half preceding his death.

17. Applicant‘s delay in challenging his conviction has prejudiced the State‘s
ability to respond to his allegations with relevant and competent evidence.

18. The memories of Applicant‘s own witnesses have degraded over the past
two decades. These witnesses include: Ginger Cole (WRR5:44, 61, 76–
77, 89); George Cole (WRR4:45, 60, 64); and, Julie Badii (WRR5:8, 32–
34).

19. Applicant was represented at trial by Matt Fry. Fry testified at the
February 21, 2014 evidentiary hearing that he was unable to locate his
complete file in this case. (WRR2:13). He was, however, able to locate a
few documents. (WRR2:13-14; DX#2). Fry has little to no recall of the
necessary details regarding Applicant‘s case. (WRR5:16-17, 19, 20, 21, 22,
23, 27, 28, 29, 33, 34, 36-37, 41). He does not recall the name of every
witness he interviewed. (WRR5:19, 28). He does not recall the nature of
any pre-trial disclosures made by the prosecution. (WRR5:33).

20. Due to the fact that more than nineteen years has passed since Fry
represented Applicant, the fact that Fry no longer has his file, and the fact
that Fry‘s memory has faded, it is impossible to determine what
information Fry had in his possession at the time he represented Applicant
regarding the instant offense. Without Fry‘s complete file, it cannot be

23
 determined whether Fry had any notes detailing his efforts to investigate
this case. Without Fry‘s complete file, it cannot be determined whether
Fry had any notes concerning the nature of the information that the State
disclosed during discovery or the date that it was disclosed.

21. Given the state of Fry‘s file and his lack of recollection of critical details,
the State is prejudiced in its ability to refute many of Applicant‘s
allegations regarding Fry‘s representation and the State‘s disclosures. Had
Applicant filed his writ in a timely fashion, Fry may have been able to
locate his file. Fry may have had a better recollection as to his
investigation and preparation of Applicant‘s case. Fry may have had a
better recollection of the State‘s pre-trial disclosures.

22. Applicant‘s case was prosecuted by former Assistant District Attorney
Gary Smart. Smart recalls some details of Applicant‘s case, but does not
have a complete recollection of trial or his investigation and preparation of
Applicant‘s case. He does not recall where he obtained certain documents
that were located within his file. He does not recall what he disclosed to
the defense prior to trial.

23. Given Smart‘s lack of recollection of critical details, the State is prejudiced
in its ability to refute many of Applicant‘s allegations regarding Smart‘s
prosecution of Applicant‘s case. Had Applicant filed his writ in a timely
fashion, Smart may have had a better recollection as to the origin of
evidence in his file. Smart may have had a better recollection of his pre-
trial disclosures to the defense.

24. The lack of critical records, the death of critical witnesses, and the faded
memories of existing witnesses has prejudiced the State‘s ability to respond
to the allegations in Applicant‘s writ.

25. The lack of critical records, the death of critical witnesses, and the faded
memories of existing witnesses would prejudice the State in its ability to
re-try Applicant, should he be granted relief on the instant writ. Indeed, the
delay has compromised the reliability of any future trial proceedings.

26. Applicant waited an extraordinary length of time to file his initial
application for writ of habeas corpus.

24
 27. Applicant has failed to present any evidence justifying the nineteen-year
delay in the filing of his writ.

28. Any prejudice suffered by Applicant due to the passage of time (absence of
records, faded witness memories, etc) is due solely to his own delay in
waiting to file his initial application for writ of habeas corpus. As such,
Applicant is not entitled to claim that he has been prejudiced by the
passage of time since it was entirely his choice to delay the filing of the
instant writ.

29. The State has proven that laches should apply in this case.

30. Applicant‘s claims are barred by the equitable doctrine of laches.

Conclusions of Law

31. This Court must consider the equitable doctrine of laches. Indeed, the
Court of Criminal Appeals has recently decided several cases
demonstrating a trend toward greater application of this doctrine.

32. Applicant has been dilatory in filing his Application for Writ of Habeas
Corpus.

33. Given the passage of so many years since the date of the offense and
Applicant‘s trial, there is difficulty in ascertaining the facts pertinent to
Applicant‘s grounds for relief. See Carrio, 992 S.W.2d at 488.

34. The passage of so much time has prejudiced the State‘s ability to refute
Applicant‘s allegations.

35. The passage of so much time will prejudice the State in its ability to re-try
Applicant should he be granted relief on this writ.

36. Both the State and society have a strong interest in the finality of this
conviction, which was affirmed 22 years ago.

37. Consideration of Applicant‘s claims is barred by the equitable doctrine of
laches.

38. The Court recommends that Applicant‘s writ be DENIED on the basis of

25
 the equitable doctrine of laches.

In the alternative, the Court makes the following findings and comes to the

following conclusions as to Applicant‘s specific grounds for relief:

XI.

SPECIFIC FINDINGS

GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

In his first ground for relief, Applicant contends that Matt Fry rendered

ineffective assistance at trial. Specifically, he contends that Fry: (1) failed to

present evidence of the complainant‘s mental state; (2) failed to present evidence

of Applicant‘s mental state; (3) failed to present evidence from a mental health

professional regarding the complainant‘s mental illness; (4) failed to interview or

call to testify six young men whom the complainant allegedly threatened or

abused; (5) failed to call the complainant‘s child from a prior marriage to testify

regarding the complainant‘s abuse of his ex-wife; and (5) he failed to present

evidence concerning police reports the complainant‘s ex-wife filed regarding the

complainant.

26
Applicable Law

Burden of Proof

In a post-conviction collateral attack, the burden is on the applicant to allege

and prove facts which, if true, entitle him to relief. Ex parte Maldonado, 688

S.W.2d 114, 116 (Tex. Crim. App. 1985). The standard of proof is by a

preponderance of the evidence. See Ex parte Adams, 768 S.W.2d 281, 287-88

(Tex. Crim. App. 1989).

Effective Assistance of Counsel

The right to effective assistance of counsel is guaranteed under both the

federal and state Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, §

10. To succeed on a claim of ineffective assistance of counsel, an applicant must

show that: (1) counsel‘s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel‘s

unprofessional errors, the result of the proceeding would have been different. See

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); see also Hernandez v.

State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (applying Strickland to cases

arising under article I, section 10 of the Texas Constitution). A reasonable

probability is defined as a probability sufficient to undermine confidence in the

outcome. Id. at 694; see also Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim.

App. 1992).

27
 Counsel‘s competence is presumed, and an applicant must rebut this

presumption by proving by a preponderance of the evidence that his attorney‘s

representation fell below the standard of prevailing professional norms and that the

challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S.

365, 384 (1986); see also McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.

App. 1996). He must rebut the presumption with evidence, not allegations. See

Roberson v. State, 852 S.W.2d 508, 510 (Tex. Crim. App. 1993). It is not enough

for him to show that the errors had some conceivable effect on the outcome of the

proceedings. Strickland, 466 U.S. at 693. He must overcome the presumption

that, under the circumstances at trial, the challenged action could be considered

sound trial strategy. Strickland, 466 U.S. at 689. Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland, 928 S.W.2d at

500.

Findings of Fact

The Complainant’s Mental State

1. The jury was well aware that the complainant suffered from mental illness
and that, at times, he exhibited threatening and violent behavior.

2. During the guilt/innocence phase of trial, Fry cross-examined State‘s
witness Sam Gish regarding the complainant‘s mental illness. Fry asked
Sam Gish if he was aware that the complainant had ―mental problems[.]‖
(RR1:29). Gish testified that he ―[had] heard that.‖ (RR1:29).

28
3. In his opening statement during the guilt/innocence phase of trial, Fry
informed the jury that the complainant had mental illness:

I want to tell you that the picture that will be drawn is a very tragic
one, a very sad one, is a picture of a family made up of good people
who were completely undone and destroyed as a family due to the
mental illness of the father of the family. We will show you a picture
of a man who was a good man and who developed paranoid
schizophrenia, a psychotic disease of the mind, a mental illness,
which resulted in him being hospitalized, resulted in him
undergoing electroshock therapy, it resulted in him being medicated
with drugs and costed [sic] him his self-control, costed [sic] him his
self-respect, costed [sic] him his job, costed [sic] him his wife, costed
[sic] him his family, and in general, destroyed all of the highest
hopes and aspirations of the Harbin family.

We intend to show you that his mental illness resulted in him having a
very paranoid and suspicious mind at times, having very little lack of
control about what he would say to others, resulted in him at times
being in a rage, resulted at times in him making threats to people‘s
face or behind their back that he would take care of them or kill them,
resulted at times in him being physically assaultive to various people,
reduced him to the point where he could not work, was discharged
from his employment of many years, and in fact, at one point at low
ebb, was parking on a parking lot and staying in his car.

(RR1:302–303) (emphasis added).

4. Fry presented the following witnesses during the guilt/innocence phase of
trial: Applicant, Ginger Cole, Gary Bronson, Candace Conrad, Teresa
Swanner, Candace Harbin, and Karen Neal. Each of Applicant‘s witnesses
testified regarding the complainant‘s mental illness and/or the
complainant‘s propensity for threatening or violent behavior.

5. Ginger Cole, Applicant‘s mother, testified at length regarding the
complainant‘s mental health treatment:

[Ginger Cole]: . . . He developed—at that time, he sought professional
counseling. He became real depressed and had some emotional
problems and he started seeing a psychiatrist and ended up having

29
 electroshock therapy in about 1975. . . .

(RR2:309)

[Ginger Cole]: (In response to a question about how long complainant
held a position with the Postal Service) Until he got medical disability
from the post office. I believe that was in 1985 or ‘86.
[Fry]: Now, why did he get a medical disability?
[Ginger Cole]: He had been diagnosed—he had been undergoing
psychiatric treatment from a Dr. Daniel B. Pearson in Dallas for
several years and apparently the medication didn‘t help and he
became dysfunctional. He got his medical retirement and he hadn‘t
worked for about two or three years before the divorce.
[Fry]: Do I understand then that Dr. Daniel Pearson is a psychiatrist?
[Ginger Cole]: Yes, sir.
[Fry]: And his mental problems continued to worsen, I take it?
[Ginger Cole]: Yes
[Fry]: And he became where he was unable to go to work at all; is that
correct?
[Ginger Cole]: That is correct. He got a medical disability or
retirement or however you want to categorize it. But it was from the
post office and it was due to his mental condition.

(RR2:310).

6. Ginger Cole testified regarding the complainant‘s attitude and behavior:

[Fry]: How did this mental illness make him act?
[Ginger Cole]: Mostly he was depressed. He laid on the couch or laid
in the bed. It got to the point where I would have to make him get off
of the bed so I could change the sheets. He was pretty well
dysfunctional . . . .

(RR2:312)

[Fry]: Okay. Did he have occasions where he had very little self-
control when something stressful would come up?
[Ginger Cole]: He was very hot tempered and most of the time I
deferred to him and only one time did he get physical with me.
[Fry]: What was that over?

30
[Ginger Cole]: I don‘t even remember what it was over. It was
probably over something stupid. I had determined that I was going to
stand my ground one time and get my way and he threw me up against
the wall and I can remember the fear. I mean I have never been treated
like that and I just deferred to him ever since. And that feeling is the
feeling that I remembered thinking if there had been a gun lying on
the table, I would have picked it up and shot him. It scared me to think
...
[Fry]: Had you ever felt like that before?
[Ginger Cole]: Never since—never before and never since. I have
never had that same fear that same—I mean it was a shock. . . .
[Fry]: How did his relationship with the children go during this
period?
[Ginger Cole]: He could be the best father that anybody could ever
wish for. He could be very gentle. He would help the children with
their lessons and he could explain things to the children in a way that I
could not. He could be perfect teacher, and when he wanted to be, he
could be a model father as far as, you know, explaining what is right
and what is not right. . . .
....
....
....
[Fry]: Was there any open conflicts between he and the children
during this period?
[Ginger Cole]: No, not—there was not a specific instance because he
was not a very strict disciplinarian. He would pretty much let the kids
have their way. . . .

(RR2:313–14)

[Fry]: Why did you make the children aware of those threats?
[Ginger Cole]: Because I wanted them to understand that even though
their daddy was their daddy and they loved their daddy, that he had a
violent nature and that they needed to be careful not to aggravate
him.

(RR2:323-24)

[Ginger Cole]: . . . I think that [Applicant] had a fear of developing a
mental illness and he didn‘t want to acknowledge it.

31
 [Fry]: Now, his father was a paranoid schizophrenic, true?
[Ginger Cole]: That is true.

(RR2:328).

7. Ginger Cole testified that the complainant‘s family had a family history of
depression. (RR2:328-29).

8. Ginger Cole never engaged in conversations with the complainant‘s
physicians. (WRR5:76–80; RR2:341).

9. On cross-examination, Ginger Cole admitted that the complainant ―never
physically beat the children.‖ (RR2:341-42).

10. Ginger Cole testified that the complainant threatened her life on several
occasions. (RR2:319–23).

11. Applicant testified that the complainant was ―like really depressed from
being mentally ill.‖ (RR2:355). He testified that the complainant took
medication prescribed by his psychiatrist. (RR2:355). He testified that the
complainant had electroshock therapy and had been hospitalized at
Willowbrook. (RR2:355-56).

12. Applicant testified that the complainant was irritable and volatile.
(RR2:356-57).

13. Applicant testified that the complainant would get upset and threaten to
harm Applicant‘s step-father, George Cole. (RR2:359). ―He said he would
kill him, and other times he said he would castrate him.‖ (RR2:359).

14. Candace Harbin, Applicant‘s sister and the complainant‘s daughter,
testified to the complainant‘s mental state and ongoing depression.
(RR2:481).

15. Candace Harbin testified to the complainant‘s propensity for violence.
(RR2:481). The complainant threatened her. (RR2:481). The complainant
was known to threaten others. (RR2:481, 483).

16. George Bronson testified to the complainant‘s making threats and to his
propensity for aggression. (RR2:457–60). Bronson also testified that he

32
 saw the complainant once or twice a week for three years and had only
seen the complainant in ―a complete rage‖ on three occasions. (RR2:461-
62).

17. Bronson testified that the complainant had severe mental problems.
(RR2:457).

18. Candace Conrad testified that the complainant told her to tell Ginger Cole
―that he was going to kill her husband [George Cole].‖ (RR2:470).
Conrad never saw the complainant physically abuse anyone. (RR2:473).

19. Teresa Swanner testified about the complainant‘s outburst at the church,
when he threatened to kill George Cole. (RR2:478). Swanner also
testified that when the complainant threatened to kill George Cole, he said
that ―George had put a bruise on Candace [Harbin].‖ (RR2:478).

20. During his closing, Fry argued that the complainant was mentally ill and
that he was violent and abusive. (RR3:619–21, 624-25). Fry argued that
Applicant ―killed a man who at that time had not a wit in his head and no
self-control and was a danger.‖ (RR3:625).

21. During the punishment phase of trial, Fry called the following witnesses:
Ginger Cole, Candace Harbin, Ray Anderson, and Linda Strackbein.

22. Ginger Cole testified that Applicant had never before been to prison or on
felony probation. (RR3:654). She testified in support of Applicant being
placed on probation. (RR3:655-63).

23. Candace Harbin testified in support of Applicant being placed on
probation. (RR3:679).

24. At the evidentiary hearing on the instant writ, Fry described his perspective
regarding the issue of the complainant‘s mental illness:

[Fry]: Looking back on it, I think that - - I just don‘t remember there
ever being any controversy whatsoever about the fact that the father
had had a mental illness, that he had been under psychiatric care, that
he had lost his career and was unable to work, and had had substantial
difficulties in family life and so on because of his mental illness. I
think that was - - my memory of it, that was abundantly clear from the

33
 people that knew best and had been present with him, living with him,
and knew the facts about how his mental illness impacted his life and
his behavior and so forth.
[Defense Counsel]: And so are you saying that you didn‘t feel like it
was necessary to give psychiatric testimony about that?
[Fry]: Well, I think that‘s probably a fair - - a fair summary. I just
don‘t believe that - - or I don‘t remember any controversy at all about
- - about him being mentally ill - - having a mental illness and being
treated for mental illness and all these other kinds of things we talked
about. In fact, I think the State could not dispute that.
[Defense Counsel]: And - -
[Fry]: It was a fact.

(WRR2:25).

25. At the evidentiary hearing on the instant writ, Ginger Cole conceded that
she never knew or received a definitive diagnosis regarding the
complainant‘s mental illness. (WRR5:79–80). She testified that she was
―just going by what the doctor said. I‘m not a doctor. The doctor‘s report
says that he‘s - - was severely depressed, which I observed. I observed
these manic highs and lows[.]‖ (WRR5:43). The trial court asked how the
complainant would behave when he was manic. (WRR5:43). Ginger Cole
testified that ―He would be up, doing things or - - well, like, it‘s hard to
remember 30 years ago.‖ (WRR5:43). She observed that the complainant
―was very capable of turning on Mr. Nice Guy when he wanted to and
being totally out of control when he didn‘t want to be[.]‖ (WRR5:43).

26. Ginger Cole conceded that she never informed the family court judge about
the complainant‘s abusive behavior during child custody hearings.
(WRR5:48).

27. Ginger Cole is not a credible witness.

28. According to Smart‘s notes, Ginger Cole informed Teresa Harry that she
feared the Applicant more than she feared the complainant. (DX#6 p.1
(Gary Smart‘s handwritten notes).

29. At the writ hearing, George Cole testified that he is Applicant‘s step-father.
George Cole‘s testimony regarding the complainant‘s threatening behavior
is largely hearsay from Ginger Cole. (WRR4:44–48, 60).

34
30. At the writ hearing, Paula Collins, Applicant‘s maternal aunt, testified that
on one occasion, she woke up in the middle of the night and saw the
complainant sitting on her bed. (WRR3:110). She felt scared because she
―didn‘t know what he was doing in my bedroom in the dark.‖
(WRR3:110). He got up to leave and jerked her head to kiss her.
(WRR3:113-14). When he jerked her head he caused her neck problems
that she then suffered for years. (WRR3:114, 125, 126). Collins never
informed anyone about the incidents. (WRR3:126–27). Collins testified to
complainant‘s stalking behavior of Ginger Cole. (WRR3:117).

31. Contrary to Applicant‘s contentions, Fry cross-examined witnesses and
presented evidence showing that that the complainant suffered from mental
illness and exhibited threatening behavior.

32. Applicant has failed to prove the complainant‘s mental illness to any
degree of specificity greater than that already presented at Applicant‘s trial.

33. Applicant has failed to prove that the complainant‘s mental illness caused
him to be violent. As such, he has failed to prove that Fry was ineffective
in failing to prove that the complainant‘s mental illness caused him to be
violent.

Applicant’s Mental State

34. The jury was aware that the complainant and Applicant had a volatile
relationship. The jury was aware of Applicant‘s claims that the
complainant abused him and that he was scared of the complainant.

35. During the guilt/innocence phase of trial, Sam Gish testified that Applicant
never told him that the complainant abused him. (RR1:45). Gish never
saw bruises on Applicant. (RR1:45-46).

36. Gish testified that two days before the instant murder, Applicant ―told me
he wanted to kill his dad and asked me if I would help.‖ (RR1: 24).
Applicant told Gish that he hated the complainant. (RR1: 27). He planned
to hide the complainant‘s body ―in a well-hidden spot.‖ (RR1: 27). ―He
said he was going to park [the complainant‘s car] somewhere where it
would look like his dad had abandoned it.‖ (RR1: 28).

35
37. Gish testified that Applicant had a gun. (RR1: 24, 27). It was a .380.
(RR1: 24).

38. During guilt/innocence, Clayt Spitzer testified that he thought that
Applicant ―might have said something about [the complainant abusing
him] once, but it wasn‘t a big thing. He just kind of said something about it
and then we talked about something else.‖ (RR1: 57). In late December
1990, Applicant called Spitzer while Spitzer was at his girlfriend Kellye
Morris‘s house and asked him if he wanted to help him kill someone.
(RR1: 58-59).

39. During guilt/innocence, Matt Tobin testified that he never saw any
confrontations between the complainant and Applicant. (RR1:68).

40. During guilt/innocence, Jason Gish testified that he was not aware of the
complainant abusing Applicant. (RR1:165).

41. In his opening statement during the guilt/innocence, Fry addressed issues
of abuse and physical intimidation. He stated:

We will show you a picture of his son who although he desperately
wanted the love and acceptance and approval of his father, found that
unattainable, felt branded as a failure in his father‘s eyes, was
ridiculed and rejected, was verbally and physically threatened, and
came to desperately fear his father, and at times being extremely
angry with his father and resentful of him, and that these events
continued to heat up over time with no practical resolution to these
conflicts seemingly being available until the night in question in
which this shooting took place.
....
That James, in fear of his own life after his father‘s rage, went and got
his pistol out of the car. That his father came toward him in a rage,
abusing him verbally and apparently fixing to grab him. That James,
Sr. is a much larger man than James, the son. That the defendant got
his gun and he did so to defend himself from his father who he
thought at that time would kill him that he blindly and instinctively, in
reaction to these threats of his father, as he put it in his statement,
fired the gun as quick as he could, and this resulted in the death of Mr.
Harbin.

36
 (RR1:303–04).

42. Fry called several family members and other lay witnesses to testify to
abuse that Applicant may have sustained by complainant.

43. During guilt/innocence, Applicant testified that the complainant threatened
to kill him on four occasions. (RR2:364-65, 366, 367, 369). He testified
about physical confrontations with the complainant. (RR2:356–57, 362,
364, 367, 369). He gave inconsistent testimony with regard to his reaction
to the complainant‘s aggression, sometimes testifying to mutual combat
and sometimes testifying that he always retreated. (RR2:366–72).
Applicant admitted that he would occasionally provoke the complainant.
(RR2:492–93).

44. Applicant testified that the complainant verbally abused him. (RR2:357–
58, 364). He testified that the complainant would ―yell at me a lot.‖
(RR2:356). He testified that the complainant verbally abused others.
(RR2:359).

45. Applicant testified that he was intimidated by the complainant and that he
was in fear of the complainant. (RR2:361–63, 370–71).

46. Applicant testified that the complainant would leave without telling anyone
where he was going or when he would return. ―Some of the time I didn‘t
even know where he was. He would take off without telling anyone and he
would be gone for like a week or so. (RR2:370-71).

47. With regard to the offense itself, Applicant testified that he shot the
complainant in self-defense. (RR3:388–97, 451–454). He testified that the
complainant ―started coming at me.‖ (RR2: 389). He got his gun from his
car. (RR2:392). He testified that at that point, the complainant, ―He came
at me.‖ (RR2:393). ―He was running like he was just coming at me.‖
(RR2:393). Applicant testified that he shot the complainant as the
complainant was coming toward him. (RR2:394-95). He claimed that he
―was afraid of him hurting me and I did not want to be hurt.‖ (RR2:396).

48. Candace Harbin testified that she witnessed one incident of complainant
physically abusing Applicant. (RR2:487). Candace Harbin was informed
by Applicant of a limited amount of incidences of physical abuse.
(RR2:491). One particular provocation was because Applicant had failed

37
 to protect Candace from his friend:

[Candace Harbin]: Yeah. There was one other time when he told
me—when we lived on Audra Street, James had this friend whose
name was Chris Lyons. I was in the shower stark naked and he came
and picked the lock on my bathroom so he could see me naked. I
grabbed the show curtain and had the shower curtain around me and
he chased me around the house.
[The complainant] was very upset that [Applicant] was in the house
and did not take Chris out of the house and make him leave or
something. He told me that he should have killed my brother for what
he did. He didn‘t say, ―I will kill him.‖ He said, ―I should kill him for
not protecting you.‖

(RR2:492-93). This was the only threat towards Applicant that the
complainant made to Candace. (RR2:493-94).

49. Candace testified that the relationship between Applicant and the
complainant was not always hostile. (RR2:488)

50. Karen Neal, Applicant‘s ex-girlfriend, testified that she saw bruises and
other marks on Applicant‘s body. (RR3:597).

51. During the guilt/innocence phase, Hannah Fuller testified for the State.
Fuller testified that she only witnessed two arguments between Applicant
and the complainant. (RR3:509). She never saw any physical
confrontations. (RR3:509). Fuller testified that had not seen any wounds
or indications of abuse on Applicant. (RR3:509). She never heard the
complainant threaten Applicant. (RR2:510).

52. During punishment, Fry argued to the jury that the abuse Applicant
sustained from the complainant was mitigating. (RR3:710).

53. At the evidentiary hearing on the instant writ, former prosecutor Gary
Smart testified that he found no indications of chronic abuse during his
investigation:

[Court]: But were there any details as far as abuse or anything like
that?

38
 [Smart]: No.

[Court]: So you didn‘t have any idea what made the divorce bitter,
whether it was money or abuse or a combination?

[Smart]: I didn‘t have any indication that there was abuse involved. I
think money was an issue and Mr. Harbin, Sr., not working and not
maintaining a job and lying around the house a lot and not doing
anything to provide for the family or contribute in anything to family
that was—and I—I interviewed George Cole. I interviewed Julie
Harbin, another sister, on a couple of different occasions because I
was trying to determine why—if there was any underlying factors as
to why an 18-year-old kid would wake his dad up and shoot him six
times in the back.

[Court]: And do you recall thinking that maybe, maybe there was
some justification? I mean, is that reflected on any offers of settlement
that you made or?

[Smart]: No. No. When—When I was—got this file and looked
through the file, that‘s what I was looking for. I was looking for
something to indicate to me as to some type of abuse on the part of—
that Mr. Harbin, James Harbin, or some mitigating circumstance that
would justify him waking his dad up and—shooting him—

[Court]: Okay.

[Smart]: —other than just psychopathic.

[Court]: Okay. And did you find anything?

[Smart]: I did not.

(WRR3:60–61).

54. Smart‘s interviews with others turned up no signs of physical abuse:

[Smart]: —No, there wasn‘t any other signs of aggression and not
from any of [Applicant]—I think I interviewed three or four of
[Applicant‘s] friends, as to whether [Applicant], the defendant, had

39
 ever complained about abuse he was suffering at the hands of [the
complainant]. He—he was verbally abusive toward him. I think he—
he belittled it—he belittled the defendant.

[Court]: Okay.

[Smart]: But as far as any physical abuse toward him, there wasn‘t
any indication, other than that one incident that they talked about. I
think Candace said he knocked him over the back of the couch or
something.

(WRR3:67–68).

55. Had Smart had any evidence of abuse, he would have recommended a
more lenient sentence. (WRR3:69–70).

56. Applicant was only interested in a plea bargain for probation and no jail
time. (WRR2:39; DX#2:7)

57. At the writ hearing, George Cole, Applicant‘s step-father, testified that he
never witnessed the complainant verbally or physically abuse of Applicant.
(WRR4:59). George Cole testified that Applicant never told him that the
complainant was abusing him. (WRR4:62).

58. At the writ hearing, Candace Harbin testified that she saw limited instances
of abuse by the complainant, physical less so than verbal. (WRR6:27–29).

59. At the writ hearing, Applicant‘s sister, Julie Badii, testified. Badii did not
recall meeting with any lawyer prior to Applicant‘s trial. (WRR5:8).
Badii‘s testimony regarding the complainant‘s abuse of Applicant is based
on a limited number of instances and hearsay. (WRR5:20–21). Badii did
not witness any physical violence towards Ginger Cole or other family
members beyond two instances with Applicant. (WRR5:23–24, AX 1E:2).

60. At the writ hearing, Badii testified that she witnessed the incident when the
complainant backhanded Applicant in the kitchen. (WRR5:12). On
another occasion, after the divorce, she saw Applicant and the complainant
fight. (WRR5:14). She described the incident as follows:

This is after my parents were divorced and my brother was living with

40
 - - with my aunt, and my dad was not present very often. I didn‘t see
my brother very much, so he came and picked up my friend and I, and
we went to visit my brother at my aunt‘s house. And he had taken us
out to get Whataburger and we went in his room and were eating.
And my dad came in in a rage and opened up his bed - - - opened up
my brother‘s bedroom door and just started yelling at him. And they
went in the kitchen and, of course, I - - I don‘t recall what they were
arguing about but it piqued my interest, so I followed them into the
kitchen and I could hear them arguing and yelling. And my - - they
took swings at each other. And my dad picked him up by his throat.
And I was so scared, I started screaming and yelling. I had never seen
him do anything like that before.

(WRR5:14).

61. According to Smart‘s notes, Julie Badii‘s only knowledge of any abuse
stemmed from hearsay. (AX 6:7). Badii informed Smart she never
witnessed violence towards Applicant. (AX 6:7 ~4-9-91 4:30).

―‖T/C to Julie Harbin. She saw her dad on weekends. She got along
with [the complainant]. She never saw [the complainant] hit
[Applicant]. She said [the complainant] did not hit her. She has heard
from Karen Neel that [the complainant] was abusive toward
[Applicant]‖

Badii reiterated this testimony in a second visit with Smart. (DX 6:8).

62. At the writ hearing, Applicant‘s friend, David Dunlevy, testified that he
witnessed the complainant physically attack Applicant. (WRR3:79–83).
By Dunlevy‘s own account, however, at the time the incident began, he
―was still sort of in a dream state[.]‖ (RR3:90). Dunlevy never informed
anyone of the incident he observed. (WRR3:92–93). Dunlevy claims that
he told his mother sometime in the late ‗90s. (WRR3:95). Dunlevy‘s
statement, however, cannot be corroborated by the State as Dunlevy‘s
mother passed away in 2006. (WRR3:95). Dunlevy did not contact any
authorities despite Applicant being attacked nor did Dunlevy attempt to
seek treatment for Applicant after the attack. (WRR3:92). Dunlevy‘s
testimony is extremely fragmentary as to what he observed. (WRR3:79,
89–91). Dunlevy testifies to witnessing a big fight break out but also
testifies he somehow fell asleep during it only to be awoken later by

41
 Applicant during the fight. (WRR3:79, 89–91). Dunlevy later testified the
fight broke out in another room. (WRR3:91). Dunlevy claims that
Applicant was at the mercy of the complainant, who was choking
Applicant, but fails to account how Applicant could navigate to Dunlevy‘s
bedroom and shake Dunlevy to wake him up. (WRR3:92).

63. Dunlevy testified that Fry did not contact him prior to trial. (WRR3:87).

64. The fact that the complainant and Applicant had a volatile relationship was
before the jury at applicant‘s trial. The jury heard from Applicant and his
sister about specific episodes of abuse. The only episode of abuse
presented at the writ hearing, which was not presented at trial was that
recounted by Dunlevy. As argued above, Dunlevy‘s account is suspect.

65. Applicant has failed to present credible evidence of abuse beyond that
already presented at trial. As such, he has failed to prove that Fry was
ineffective in failing to present evidence of Applicant‘s mental state or the
complainant‘s abuse of Applicant.

Mental Health Professional

66. At trial, Smart objected to the introduction of hearsay evidence regarding
the complainant‘s mental illness. (RR1:30).

67. Fry did not present evidence of the complainant‘s mental illness through a
mental health professional.

68. Apparently, the concept of battered woman syndrome was mentioned
during voir dire and Fry briefly reiterated it during his punishment phase
closing argument:

[Fry]: . . . A tremendously wide range of punishment has been
provided for you and we all went through such a long involved
process in voir dire trying to show you it is there and to show you
[that] you can‘t ever tell what a particular case of murder is ―worth‖ in
terms of a sentence until you have looked at the facts because they are
all different. There are all kinds of different circumstances and there
are all kinds of different people involved. We went through so much
conversation about a battered woman syndrome and all of the
problems they might have. The Judge went through that with you

42
 and related many other types of mitigating circumstances that you
could see in murder cases, and I earnestly tell you that his case has
got so many parallels between that kind of situation.

(RR3:707).

69. Dr. Daniel B. Pearson, Jr. treated decedent for decedent‘s mental health.
Dr. Pearson wrote a 1988 report summarizing decedent‘s mental health.
(WRR5:65). Dr. Pearson‘s report was reprinted in 1991. (WRR5:63). Dr.
Pearson was not called to testify at trial. Dr. Pearson passed away January
23, 2013. (See State‘s Exhibit #4). Dr. Pearson‘s records have been
destroyed. (WRR1:75).

70. Dr. Ricardo Shack treated complainant in 1989 at Willowbrook Hospital.
(WWR5:57). Willowbrook Hospital no longer exists. (WRR5:67).
Willowbrook Hospital has destroyed its records. (WRR5:67). Dr. Ricardo
Shack has destroyed his records concerning the complainant (WRR5:67–
68). Dr. Ricardo Shack has no recollection of treating the complainant.
(WRR5:67–68).

71. At the writ hearing, Fry testified that his strategy at trial, with regard to the
complainant‘s mental illness, was to introduce those persons with the best
knowledge of the complainant‘s activities and illness. (See WRR2:24–25).

72. Fry testified that he did not recall whether he spoke with Dr. Pearson or
whether he reviewed any of Dr. Pearson‘s reports. (WRR2:50).

73. At the writ hearing, Smart testified that he believed that the information
contained within the complaint‘s employment file was sufficient and that
no medical expert testimony or the complainant‘s treating doctors were
necessary. (WRR3:70–71). The following exchange took place:

[Udashen]: And did you talk to any of the [complainant‘s] treating
physicians?

[Smart]: I don‘t—I don‘t—I don‘t think I called [the doctors]. I think I
went basically off of their reports and saw what their reports aid, so
there wasn‘t any reason for me to contact them.

Because there wasn‘t anything in the reports that indicated any signs

43
 that he had aggression. All the records told me was that when [the
complainant] went through his manic depressive states that he was
incapacitated. I mean, he didn‘t do nothing, he just laid around and
watched TV and hardly ever got up.

(WRR3:70-71).

74. Forensic Psychologist, Dr. Randy Price, interviewed Applicant in
connection with the instant writ. Dr. Price testified at the evidentiary
hearing on the instant writ.

75. Other than Dr. Pearson‘s 1991 letter, Dr. Price did not review any of the
complainant‘s medical records and he could not provide a definitive
diagnosis regarding the complainant. (WRR3:13). Dr. Price conceded that
Dr. Pearson‘s letter did not state anything about violence. (WRR3:15).

76. Applicant told Dr. Price at the time of the offense, that he and the
complainant ―physically fought.‖ (WRR3:27-28). Dr. Price formed his
opinion based on Applicant‘s representations as to how the offense
transpired. (WRR3:28-29).

77. Applicant‘s rendition to Dr. Price conflicts with the version that he told his
half-sister Teresa Harry in 2010. In 2006, Harry and Applicant participated
in the TDCJ Victim/Offender Mediation Program. (WRR3:143-45). After
mediation, in 2010, Applicant wrote Harry a letter in which he told her that
on the night of the offense, there was no physical confrontation between
him and the complainant. (SX#2). He wrote, ―The truth is that there was
no physical confrontation that night. Everything was verbal.‖ (SX#2). He
told Harry that on the night of the offense he shot the complainant because
he was angry with him. (WRR3:151; SX#2).

78. Given the version of events Applicant gave Harry, it is at least possible that
Dr. Price‘s opinion, which is based on Applicant‘s report that there was a
physical confrontation at the time of the offense, may be invalid.

79. Dr. Price conceded that expert testimony as to mental illness does not
always impact the jury during the punishment stage. (WRR2:74).

80. Although Dr. Price testified that he was available to testify to this opinion
in 1991, he also testified that this was his first time, in over thirty years of

44
 practice, testifying on the theory of psychological self-defense in the
context of an abused child. (WRR3:30). Accordingly, Applicant has failed
to prove that a mental health professional was available to testify to
psychological self defense as it applies to children in 1991.

81. Applicant has failed to prove that Fry was ineffective in failing to call a
mental health professional at trial.

Complainant’s Other Alleged Victims

82. Fry‘s notes reflect that, prior to trial, Diane Gardner provided him with a
list of possible witnesses: Kevin Weable, Wesley Gardner, Levi
Glossinger, Matt Tobin, Chris Lyons, and Oscar Hernandez. (AX2:5).
Diane Gardner did not provide contact information for anyone on the list.
(AX2:5).

83. At the evidentiary hearing on the instant writ, Fry testified that he cannot
recall whether he contacted anyone on the list. (WRR2:19–20, 30).

84. Of the six listed individuals, two were called to testify at trial as witnesses
for the State: Glossinger and Tobin. Glossinger testified he only saw one
verbal altercation between the complainant and Applicant. (RR3:539).
Tobin testified he that he did not notice any confrontations between the
complainant and Applicant. (RR1:64). He did not notice any bruises on
Applicant. (RR1:64).

85. Fry did not call Kevin Weable, Chris Lyons, Oscar Hernandez, or Wesley
Gardner to testify at trial.

86. In connection with the instant writ, Applicant has failed to present any
evidence as to the nature of the testimony that Weable, Lyons, Hernandez,
or Gardner may have been able to provide. He has failed to present any
evidence proving that they were available and willing to testify at
Applicant‘s trial. This Court should not speculate that a particular witness
may have had information that would have been persuasive before the jury.
This Court should not speculate that these witnesses would have been
available and willing to testify at Applicant‘s trial.

87. Applicant has failed to prove that Fry was ineffective in failing to
investigate or present evidence from Weable, Lyons, Hernandez, or

45
 Gardner.

Teresa Harry

88. Teresa Harry is the Applicant‘s half-sister. She was not called as a witness
by the State or the defense in either phase of Applicant‘s trial.

89. At the evidentiary hearing on the instant writ, Harry testified that the
complainant and her mother, Sharon Harbin Tobin were married in 1958 or
1959 and were divorced in 1961. (WRR3:134). The complainant married
Ginger Cole eleven years later, in 1971. (WRR3:134).

90. After the divorce, Harry continued to have contact with the complainant.
(WRR3:135). She ―saw him intermittently and on holidays.‖
(WRR3:135). ―It was very happy.‖ (WRR3:136). Harry maintained
contact with the complainant even after he married Ginger Cole.
(WRR3:136-37).

91. Harry testified that, prior to his murder, the complainant admitted to her
that he had been verbally and emotionally abusive to his first wife, Harry‘s
mother. (WRR3:139–140, 156). The complainant did not describe what he
did. (WRR3:156).

92. Harry testified that she never witnessed the complainant verbally or
physically abuse her mother. (WRR3:137–38). Indeed, Harry was only
able to corroborate the complainant‘s statements to a limited extent with
her mother. (WRR3:140–41). Harry‘s mother would not share any detail
with Harry about the abuse, but was adamant that no physical abuse ever
occurred. (WRR3:141, 155–56, 175). Indeed, Harry‘s mother told Harry
that she never would have let the complainant take Harry anywhere if she
ever thought that the complainant was ―in any way physically violent.‖
(WRR3:142).

93. Harry testified that she asked other family members about complainant‘s
behavior as testified to and those family members denied the testimony.
(WRR3:167).

94. Harry would not have been a favorable witness for Applicant‘s defense.
Harry testified that she had a very good relationship with her father.
(WRR3:136–37). The complainant did not abuse Harry verbally or

46
 physically. (WRR3:137). Harry believes that Applicant had no
justification for his acts. (WRR3:171). During her testimony in the writ
hearing, Harry became very emotional. (WRR3:166). She testified:

(In response to a question from the trial court as to why she reached
out to Applicant to participate in mediation) I wanted to know - - my
thoughts had always haunted me about - - I‘m sorry - - about what
must have been going through my dad‘s mind when he knew his only
son was shooting him, was there a 15-second interval where he said,
my God, my son is shooting me. I mean, you wanna know that
someone didn‘t die alone on a dark dirt road, someone that you loved,
no matter what people said they did. And so, I wanted to ask my
brother why did you do this, and did he suffer?
(WRR3:168).

95. Harry was involved in family interactions that included complainant and
Applicant. (WRR3:135, 139).

96. Harry did not observe the complainant verbally or physically abuse
Applicant, Candace or Julie. (WRR3:139). Harry was never told by
Applicant or Applicant‘s other relatives that Applicant was being abused.
(WRR3:157–158).

97. Even if Fry had tried to introduce Harry‘s testimony about what she had
been told Smart would have objected on the grounds of relevance and
hearsay. (WRR4:27).

Waxahachie Police Reports

98. Waxahachie Police received complaints that the complainant threatened
Ginger Cole. (WRR5:51–52). Waxahachie Police took no action based on
those complaints. (WRR5:52).

99. At trial, Ginger Cole attempted to testify regarding the aforementioned
reports, but the trial court sustained Smart‘s objection that her testimony
was non-responsive to Fry‘s questions. (RR2:322).

100. Fry did not introduce the police reports into evidence, but Ginger Cole and
Candace Harbin all testified to the complainant‘s stalking behavior.

47
101. At the evidentiary hearing on the instant writ, Applicant‘s step-father,
George Cole, testified regarding the police reports. (WRR4:37). The
complainant never threatened George or Ginger Cole with a weapon.
(WRR4:46, 56). The complainant never committed an act of physical
violence against the Coles.

102. At the writ hearing, Julie Badii testified that she never witnessed any
threats herself. (WRR5:25–26).

103. The jury was well aware of the tension that existed between the
complainant and Ginger Cole after their divorce. The jury was well aware
of the complainant‘s behavior toward Ginger Cole after their divorce.

Conclusion

104. After his arrest, Applicant gave a 17-page written confession to police.
(RR1: 199-205; SX#3).

105. At trial, Fry argued that Applicant‘s confession should be suppressed. The
Court conducted a lengthy hearing in connection with Fry‘s efforts to have
the confession excluded. (RR1:76-161).

106. Fry called multiple witnesses during both phases of trial to testify to the
complainant‘s mental illness and his violent and threatening behavior.

107. Applicant‘s arguments concern the punishment phase of trial, such that the
evidence should have been presented in an effort to mitigate Applicant‘s
punishment. As shown above, much of the complained-of evidence was
presented during guilt/innocence. Notably, in its instructions during the
punishment phase, the jury was instructed as follows:

You are further charged that in fixing the defendant‘s punishment you
may take into consideration all of the evidence submitted to you in the
full trial of this case; that is, all of the evidence submitted to you in the
trial of the first part of this case wherein you were called upon to
determine the guilt or innocence of the defendant, and all of the
evidence, if any, admitted before you in the second part of the trial
wherein you are called upon to fix the defendant‘s punishment and
you will be bound by the Charges of the Court covering both the first
and second parts of this trial in determining what punishment shall be

48
 given to the defendant.

(CR:47).

108. Applicant has not provided any credible or non-duplicative evidence to
contravene Fry‘s trial strategy.

109. Applicant has failed to prove that counsel‘s representation fell below an
objective standard of reasonableness and there is a reasonable probability
the results of the proceedings would have been different in the absence of
counsel‘s errors. See Strickland v. Washington, 466 U.S. 668, 689 (1984);
Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002).

110. Applicant received effective assistance of trial counsel.

Conclusions of Law

1. The Court concludes that Applicant has failed to prove that Fry‘s
representation fell below an objective standard of reasonableness.

2. Applicant has failed to prove the first prong of Strickland.

3. The Court concludes that Applicant has failed to prove that the result of the
proceedings would have been different.

4. Applicant has failed to prove the second prong of Strickland.

5. The fact that other counsel might have tried the case differently does not
show ineffective representation. Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984).

6. Applicant has failed to prove that Fry rendered ineffective assistance.

7. The Court recommends that these grounds for relief be denied.

49
 GROUND TWO: BRADY VIOLATION

In his second ground for relief, Applicant contends that Smart committed a

Brady violation. Specifically, he contends that Smart suppressed the following

evidence: (1) records of Candace Harbin‘s medical treatment; (2) a letter from Dr.

Pearson regarding the complainant‘s mental illness; (3) information from Teresa

Harry that the complainant was verbally abusive toward his ex-wife, Harry‘s

mother; (4) information from Wesley Gardner that the complainant beat Applicant

with a broomstick; (5) information from Matt Tobin that there were rumors at

school that the complainant was abusive; and (6) that a report had been filed with

the Waxahachie Police Department that the complainant had threatened George

and Ginger Cole.

Applicable Law

The State has an affirmative duty to disclose all material, exculpatory

evidence to the defense under Brady v. Maryland, 373 U.S. 83, 87 (1963). To

establish a Brady claim, a habeas applicant must demonstrate that (1) the

prosecution suppressed evidence, (2) the evidence was favorable to the applicant,

and (3) the evidence was material. United States v. Bagley, 473 U.S. 667, 682

(1985); Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993).

Favorable evidence is evidence which, ―if disclosed and used effectively,

‗may make the difference between conviction and acquittal;‘‖ it includes

50
exculpatory and impeachment evidence. Pena v. State, 353 S.W.3d 797, 811 (Tex.

Crim. App. 2011) (citing Bagley, 473 U.S. at 676) (emphasis in original). Evidence

is material if there is a reasonable probability that, had the evidence been disclosed

to the defense, the outcome of the proceeding would have been different. See

Bagley, 473 U.S. at 682; see also Thomas v. State, 841 S.W.2d 399, 404 (Tex.

Crim. App. 1992). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Bagley, 473 U.S. at 682. Materiality is

evaluated by considering the withheld evidence in the context of the entire record

and the overall strength of the State‘s case. See Thomas, 841 S.W.2d at 404-05.

―The mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the trial, does not establish

‗materiality‘ in the constitutional sense.‖ United States v. Agurs, 427 U.S. 97, 109-

110 (1976).

Findings of Fact

1. At the time of trial, the Dallas County District Attorney‘s Office did not
maintain an open file policy.

Candace Harbin’s Medical Records

2. At the time of trial, the State was in possession of certain medical records
belonging to Applicant‘s sister, Candace Harbin. (WRR3:67).

3. Candace Harbin‘s records provide that when she was admitted to the
hospital, she told medical personnel that the complainant was threatening
and abusive. This information is favorable to Applicant‘s defense.

51
4. Smart testified that he did not subpoena the complained-of medical records.
(WRR3:63). Smart testified that he ―didn‘t get those records on my own.
Somebody from the defense gave them to me, whether it was Ginger Cole,
whether it was Candace, or whether it was Matt Fry.‖ (WRR3:62).

5. Smart testified that he did not give Fry a copy of Candace‘s medical
records. (WRR3:62). He testified as follows:

I don‘t - - I don‘t know why I would have because to the best of my
recollection, if I had gotten them from the family, then I would‘ve
made the assumption that they would‘ve given them to him or he may
have been the one that gave them to me.

(WRR3:62).

6. Smart recalled reviewing Candace‘s medical records. (WRR3:62).

7. Smart testified that he spoke with Candace prior to trial. (WRR3:58).
Smart described that Candace was ―sympathetic to [Applicant]‖ and ―a
little bit hostile toward me.‖ (WRR3:59). Candace only told Smart of the
―the incident where the [complainant] had hit [Applicant] on one
occasion.‖ (WRR3:59).

8. Fry‘s notes reflect that Ginger Cole delivered some information regarding
various parties‘ mental state to Fry. (WRR5:56, DX2:2).

9. At the evidentiary hearing on the instant writ, Fry testified that he does not
recall whether that he received or reviewed the instant records.
(WRR2:33). Fry received substantial support from Applicant‘s family.
(WRR2:34). Fry did not recall the conversations that he had with Ginger
Cole regarding the complainant‘s mental illness. (WRR2:34).

10. Applicant has not met his burden of proving by a preponderance of the
evidence that the complained-of information was not disclosed to the
defense.

11. Moreover, Applicant has failed to prove that Fry did not already have the
complained-of records in his possession.

12. Even assuming the records were suppressed, Applicant has failed to prove

52
 that that the information was material. Notably, as discussed in detail
above, Candace Harbin testified at length during both phases of
Applicant‘s trial and provided details regarding the complainant‘s
threatening and abusive behavior. Thus, the information contained within
the medical records was known to the defense and presented at trial.

13. Applicant has failed to prove that disclosure of records containing more of
the same information already known to the defense would have changed
the outcome of the proceeding.

Dr. Pearson’s Letter

14. At the time of trial, the State was in possession of a letter written by Dr.
Pearson regarding the complainant. This letter is substantially the same as
the letter Applicant‘s Exhibit #11. The letter was located within the
complainant‘s employment records from the United States Postal Service.
(See DX#3).

15. Smart testified that when he learned that the complainant suffered from
depression, that is when he ―got the records from the post office.‖
(WRR3:70). ―[T]here wasn‘t anything in the reports that indicated any
signs that he had aggression. All the records told me was that when Mr.
Harbin went through his manic depressive states that he was incapacitated.
I mean, he didn‘t do nothing, he just laid around and watched TV and
hardly ever got up.‖ (WRR3:70).

16. Dr. Pearson‘s letter describes that the complainant suffers from depression
and anxiety and ―was somewhat schizoid in personality. He also had a
tendency to show some paranoid personality.‖ (DX#3). The letter
described that the complainant ―had a tendency to be manic depressive in
his behavior.‖ (DX#3). ―When he would get depressed, he would become
very angry, hostile, somewhat withdrawn, and experience loss of energy,
loss of drive, and become somewhat obstinant [sic].‖ (DX#3). There is no
information contained within the letter that describes the complainant as
violent or abusive.

17. Smart testified that he could not recall ever learning that the complainant
suffered from mental illness beyond depression. (WRR3:66-67). He
testified as follows:

53
 I don‘t—I don‘t—I don‘t think I called [the doctors]. I think I went
basically off of their reports and saw what their reports said, so there
wasn‘t any reason for me to contact them.

Because there wasn‘t anything in the reports that indicated any signs
that he had aggression. All the records told me was that when [the
deceased] went through his manic depressive states that he was
incapacitated. I mean, he didn‘t do nothing, he just laid around and
watched TV and hardly ever got up.

(WRR3:72).

18. At the evidentiary hearing, Fry testified that he did not recall whether he
sought out the complainant‘s postal records or whether he received the
documents from any source. (WRR5:27).

19. At the evidentiary hearing, habeas counsel asked whether the
complainant‘s post office retirement records were ―the sort of thing you
would‘ve shown to [Fry]?‖ (WRR3:56). Smart testified that he ―wouldn‘t
have known why I would‘ve shown him - - shown him these records.‖
(WRR3:56). Notably, defense counsel did not ask him specifically about
the letter from Dr. Pearson contained within the postal records.

20. Applicant has failed to prove by a preponderance of the evidence that Dr.
Pearson‘s letter was suppressed.

21. Applicant has failed to prove that Dr. Pearson‘s letter was favorable.

22. Applicant has failed to prove that Dr. Pearson‘s letter was material.

23. Because Applicant was aware of the complainant‘s mental illness,
Applicant fails to prove that disclosure of the Dr. Pearson‘s letter would
have changed the outcome of the proceeding.

Teresa Harry

24. At the evidentiary hearing on the instant writ, Harry testified that the
complainant told her that he was abusive toward his ex-wife, her mother.
(WRR3:139-40, 156). Neither the complainant nor Harry‘s mother gave
Harry specific details regarding the abuse. (WRR3:156). As such, Harry

54
 had extremely limited information to provide on this subject. (WRR3:155-
56).

25. Harry testified that she never saw the complainant abuse her mother.
(WRR3:167-68).

26. Harry informed Gary Smart of the deceased‘s depression and the effects of
that depression. (WRR4:13).

27. Harry could not recall whether she told Smart that the complainant verbally
abused her mother and she could not recall whether he asked. (WRR3:163,
164).

28. Smart reviewed his notes and testified that he did not recall ―anything
being mentioned about - - anything between Mr. Harbin, Sr., and his first
wife.‖ (WRR4:9). Smart testified that he ―didn‘t get anything from her
that indicated that she had ever seen any violent tendencies on his behalf or
on behalf of him, even towards his mom - - or towards her mom.‖
(WRR3:13).

29. It is impossible for Smart to suppress information that he is not aware of
and does not have in his possession.

30. Further, Applicant has failed to prove that this information was material.
The alleged abuse concerns the complainant‘s ex-wife. He was married in
1958 or 1959 and divorced in 1961. That the complainant may have
verbally have abused his ex-wife does not prove that the complainant
abused his child nearly thirty years later. Indeed, if Fry had attempted to
introduce any evidence on this subject, the trial court would have properly
sustained the State‘s objection and excluded it. As such, this information,
if disclosed, would not have changed the outcome of the proceeding.

Wesley Gardner: the Broomstick Incident

31. Prior to trial, Gary Smart interviewed Applicant‘s friend, Wesley Gardner.
(WRR4:14–15). Gardner informed Smart that the complainant had beat
Applicant with a broomstick. (WRR4:14–15).

32. Smart also interviewed Applicant‘s friend, Matt Tobin, who informed
Smart that Gardner had not been around Applicant for the year and a half

55
 preceding the murder. (DX#6:6, 4-8-91:4:10 pm).

33. Smart could not recall whether he informed Fry about Gardner‘s story, but
he thought they had some conversation ―about that broomstick.‖
(WRR4:16-17). Smart testified that he did not document every
conversation he had with Fry. (WRR4:16–18).

34. Applicant has failed to prove by a preponderance of the evidence that this
information was suppressed.

35. Applicant did not present testimony or an affidavit from Wesley Gardner.

36. Applicant has failed to prove that the complained-of information was
material. Smart testified that he did not believe that the incident with the
broomstick was an incident that Gardner observed. (WRR4:23). As such,
it was hearsay. (WRR4:23). Indeed, if Fry had attempted to introduce any
evidence on this subject, the trial court would have properly sustained the
State‘s objection and excluded it. As such, this information, if disclosed,
would not have changed the outcome of the proceeding.

Matt Tobin

37. Matt Tobin told Smart that Applicant had told him that Applicant had
gotten in ―fights‖ with the complainant. (DX#6:6). Smart‘s notes do not
specify whether Tobin was describing verbal or physical fights. Smart
called Tobin to testify at trial. Tobin testified that he did not witness any
confrontations between the complainant and Applicant. (RR1:67–68).

38. Applicant contends that the State failed to disclose the fact that Tobin told
Smart that the complainant had gotten into a fight with Applicant and that
there were rumors around school that the complainant was abusive.

39. Applicant did not present testimony or an affidavit from Matt Tobin. He
did not present evidence of any rumors that the complainant was abusive.

40. Applicant has failed to prove by a preponderance of the evidence that the
State suppressed exculpatory evidence.

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 Waxahachie Police Reports

41. At the evidentiary hearing, George Cole testified that the complainant
would call Ginger Cole and threaten ―that he‘s going to kill her and kill me
both if he didn‘t get his family back.‖ (WRR4:47). After the calls, the
Coles would contact the Waxahachie Police Department and report it.
(WRR4:46-47).

42. Ginger Cole testified that she told Fry about the police reports prior to trial.
(WRR5:58). Ginger Cole attempted to make a statement about the records
in court but was stopped by Smart for being non-responsive to Fry‘s
questions. (RR2:322)

43. George Cole informed Smart that Waxahachie Police had police records
concerning the complainant. (WRR4:37, 51-52).

44. According to Smart‘s notes, Steve Collier of the Waxahachie Police
Department informed Smart that the Department had police records
concerning the threats made by the complaint to Ginger and George Cole.
(DX#6:11).

45. Ginger Cole informed Fry of the existence of the police records.
(WRR5:57–59).

46. Applicant has failed to prove by a preponderance of the evidence that
Smart failed to disclose his knowledge of the reports to Fry.

47. Applicant has failed to prove that this information is material. As
previously argued, Ginger Cole attempted to testify about the reports at
trial, but Smart objected that she was non-responsive to Fry‘s question.
(RR2:322). Smart‘s objection was sustained. (RR2:322). As such, the
complained-of information would not have changed the outcome of the
proceeding.

Conclusion

48. Applicant has failed to prove by a preponderance of the evidence that the
State suppressed exculpatory evidence.

49. Neither Fry nor Smart has any specific recall as to the nature of any

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 specific disclosures. The witness‘ degraded memories do not constitute
affirmative evidence of a Brady violation.

50. Given the passage of so much time, Smart does not recall what he disclosed
to Fry. Smart testified as follows:

I can remember him coming in the office and sitting next to my desk
and reviewing the file before trial. But exactly what all he looked at, I
don‘t know.

(WRR3:56). Smart testified that even if he did not provide a copy of
a document, he may have let Fry look at it. (RR3:56).

51. Smart testified that when he was assigned Applicant‘s case he looked for a
motive for the murder. He testified that ―when I was - - got this file and
looked through the file, that‘s what I was looking for. I was looking for
something to indicate to me as to some type of abuse on the part of - - that
Mr. Harbin, James Harbin, or some mitigating circumstance that would
justify him waking his dad up and - - shooting him - -[.]‖ (WRR3:61). He
found no evidence of abuse beyond the one incident Candace described
when the complaint ―knocked [Applicant] over the back of the couch or
something.‖ (WRR3:61, 68).

52. If Smart had found mitigating circumstances during his investigation, it
―would‘ve significantly affected my offer.‖ (WRR3:69)

53. In any event, Applicant has failed to prove that any of the information
allegedly suppressed was material. As discussed in detail above, the jury
was well aware of the complainant‘s mental illness and Applicant‘s claims
of abuse. Applicant has failed to show that admission of this additional
evidence would have changed the outcome of the proceeding.

54. Applicant has failed to prove that the State suppressed exculpatory
information.

Conclusions of Law

1. Applicant has failed to prove that any evidence was suppressed, much
less that that evidence was favorable or material.

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 2. The Court recommends that Applicant‘s second ground for relief be
denied.

OTHER GROUNDS

This Court finds that all grounds for relief not specifically addressed herein

are without merit and should be denied.

CONCLUSION

1. This Court concludes that Applicant has not been denied any rights
guaranteed him by the United States Constitution and the Texas
Constitution.

2. This Court concludes that Applicant is lawfully restrained.

3. This Court concludes that Applicant‘s Application for Writ of Habeas
Corpus is totally without merit.

4. This Court recommends that relief be DENIED on Applicant‘s habeas
application.

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 WRIT NO. W91-22107-Q(A)

EX PARTE § IN THE 204th JUDICIAL

§ DISTRICT COURT

JAMES BERKELEY HARBIN II § DALLAS COUNTY, TEXAS

ORDER ADOPTING
STATE’S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND ORDER

The Court hereby adopts and incorporates herein the above proposed
findings of fact and conclusions of law submitted by the State in Ex parte James
Berkeley Harbin II.

The Clerk is hereby ORDERED to:

1. Prepare a transcript of all papers in this cause and transmit the Court‘s
Findings and Order, including the judgment, sentence, indictment,
docket sheets, and other exhibits and evidentiary matters filed in the
trial records of this cause, to the Court of Criminal Appeals as
provided by Article 11.07 of the Texas Code of Criminal Procedure.

2. Send a copy of the Findings of Fact and Conclusions of Law, and the
Order thereon, to Applicant‘s counsel and to counsel for the State by
depositing the same in the United States mail.

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 BY THE FOLLOWING SIGNATURE, THE COURT ADOPT’S THE
STATE’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW IN CAUSE NO. W91-22107-Q(A).

SIGNED AND ENTERED THIS _____ day of _________________, 2014.

__________________________________
Judge Lena Levario
th
204 Judicial District Court
Dallas County, Texas

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 Respectfully submitted,

_________________________
Craig Watkins Christine Womble
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24035991
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 (fax)

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document contains 12,873 words,
inclusive of all content.

__________________________
Christine Womble

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing document was served on
Applicant‘s counsel, Gary Udashen, via email on December 10, 2014.

_________________________
Christine Womble

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