AP-77,054
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
FEBRUARY 18, 2015 Transmitted 2/17/2015 5:13:40 PM
Accepted 2/18/2015 8:47:07 AM
ABEL ACOSTA
NO. AP-77,054 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
RODNEY REED,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
Arising from:
THE DISTRICT COURT
FOR THE 21st JUDICIAL DISTRICT,
BASTROP COUNTY, TEXAS
BRIEF OF APPELLANT RODNEY REED
Bryce Benjet
State Bar No. 24006829
THE INNOCENCE PROJECT
40 Worth Street
New York, New York 10013
(212) 364-5340
(212) 364-5341 (fax)
Email: bbenjet@innocenceproject.org
Andrew F. MacRae
State Bar No. 00784510
LEVATINO|PACE LLP
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
(512) 637-8565
(512) 637-1583 (fax)
Email: amacrae@levatinopace.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
District Attorney: BRYAN GOERTZ
Criminal District Attorney
804 Pecan Street
Bastrop, Texas 78602
Counsel for the State: MATTHEW OTTOWAY
Assistant Attorney General
Bastrop County, Texas
P.O. Box 12548
Capitol Station
Austin, Texas 78711
Appellant: RODNEY REED
Counsel for Appellant: BRYCE BENJET
Attorney at Law
THE INNOCENCE PROJECT
40 Worth Street, Suite 701
New York, New York 10013
ANDREW F. MACRAE
LEVATINO/PACE LLP
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
ii
REQUEST FOR ORAL ARGUMENT
This is an appeal from the denial of a Chapter 64 DNA testing motion in a
capital case. Appellant Rodney Reed was convicted in 1998 of strangling Stacey
Stites to death with a belt. No physical evidence was found on the belt, the
victim's outer garments, or any other items recovered at the scene. There were no
eyewitnesses, and Reed's conviction was supported only by trace evidence in the
form of semen that he and Ms. Stites had had sex – an event Reed admits, and
which is not criminal. The State relied on a time of death estimate from the
medical examiner, Dr. Roberto Bayardo, and scientific evidence regarding the
length of time that sperm remain intact, to argue that Stite's death closely followed
coitus, and that Reed therefore was the perpetrator.
The State's theory of the case has since been debunked as junk science by
notable experts in the field, and Dr. Bayardo has testified in a sworn statement that
the prosecution badly misconstrued his testimony. The evidence shows instead at
least a 24-hour gap between coitus and collection of the semen, if not longer.
These developments underscore the critical need to DNA test evidence handled by
Ms. Stite's killer. Oral argument will greatly assist this Court in understanding the
extensive factual record, complex procedural history, and, most importantly, how
DNA testing of the murder weapon and other evidence handled by the killer can
iii
exonerate Mr. Reed, possibly identify the real murderer, and ensure that justice is
done.
iv
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES.................................................................................. viii
I. INTRODUCTION .................................................................................................. 1
II. SUMMARY OF ARGUMENT ............................................................................ 6
III. STATEMENT OF FACTS .................................................................................. 9
A. Background ........................................................................................... 9
1. The Murder Of Stacey Stites....................................................... 9
2. The Investigation....................................................................... 10
3. The State's Unsupported Scientific Evidence Results In
Mr. Reed's Conviction .............................................................. 11
B. Mr. Reed's Post-Conviction Proceedings ............................................ 13
1. New Scientific Evidence Eviscerates The State's Theory
Of Reed's Guilt .......................................................................... 17
2. New And Mounting Evidence Corroborates Prior
Testimony of Reed and Stites’ Relationship And Reveals
Fennell As An Abuser Of Police Power And A Serial
Rapist Who Stated He Would Kills Ms. Stites If She
Were Unfaithful By Strangling Her With A Belt ..................... 18
C. Mr. Reed's DNA Testing Requests And Motion................................. 21
1. The State's stalling tactics concerning Mr. Reed's DNA
testing requests .......................................................................... 21
2. Mr. Reed files his DNA testing motion after the State
rejects the majority of his testing requests ................................ 23
IV. ARGUMENT ..................................................................................................... 38
A. Legal Standards and Standard of Review ........................................... 38
v
1. Chapter 64 Requirements .......................................................... 38
2. Bifurcated Standard Of Review On Appeal ............................. 40
B. The District Court Wrongly Concluded That Mr. Reed Failed
To Prove That Exculpatory DNA Test Results Likely Would
Have Resulted In His Acquittal. (Issue 1) .......................................... 41
1. The State's Case Against Mr. Reed Was Highly
Circumstantial, Based Upon Now-Debunked Junk
Science And Tenuous Inferences, And Did Not
Constitute A "Mountain Of Evidence" By Any Measure. ........ 44
2. The Circumstantial Evidence Cited By The District Court
Does Not Support Its Findings .................................................. 46
3. The District Court's Finding Regarding "Presence" Is
Ambiguous And Should Either Be Clarified Or Reversed ....... 48
4. The District Court's Finding Regarding Time Of Death
Was Based Upon Unreliable Testimony That Has Either
Been (i) Debunked By The Prosecution's Own Witness
And Other Experts, Or (ii) Was Given Solely By Jimmy
Fennell, Who Was Strongly Incentivized To Lie To
Avoid Prosecution ..................................................................... 49
5. The District Court's Finding Of Stites' Apparent Lack Of
Consent Does Not Implicate Mr. Reed ..................................... 51
6. The District Court Misapplied The Test For Determining
Whether Mr. Reed Proved By A Preponderance Of The
Evidence That Exculpatory DNA Test Results Likely
Would Have Resulted In His Acquittal .................................... 52
7. The Statutory Presumption Of Exculpatory DNA Test
Results. ...................................................................................... 53
8. The District Court Failed To Apply The Required
Presumption That DNA Test Results Would Be
Exculpatory ............................................................................... 57
C. The District Court's Conclusion That This Motion Was Brought
For The Purposes Of Delay Is Not Correct (Issue 2). ........................ 60
vi
1. The Standard Of Review ........................................................... 62
2. Mr. Reed's Motion Does Not Reflect An Intent To Cause
Unreasonable Delay In The Execution Of Sentence Or
The Administration Of Justice .................................................. 63
3. Mr. Reed Was Not Required To Provide A Time
Estimate For Testing (¶ 23a). .................................................... 65
4. Mr. Reed Should Not Be Faulted For Filing His DNA
Testing Motion On The Date The Court Scheduled His
Execution (¶ 23b). ..................................................................... 67
5. The legal basis for the DNA testing requested in this
motion was not available until 2011 (¶ 23c). ............................ 70
6. The 2011 Amendments To Chapter 64 ..................................... 71
7. Mr. Reed Suffered From A Legal Impediment Prior To
The 2011 Amendments. ............................................................ 75
8. The District Court's "Intent" Inferences Drawn From Mr.
Reed's Post-Conviction Proceedings Are In Error And
Should Be Reversed (¶¶ 23d-g, l-m)......................................... 76
9. Mr. Reed Provided Ample And Adequate Notice To The
State of the Items Which He Sought To Test (¶¶ 23h-j). ........ 80
10. The District Court Erred In Finding That Reed Made
Redundant Testing Requests (¶¶ 23j- m). ................................ 82
D. Mr. Reed Met His Burden Under Article 64.01 With Respect
To Chain of Custody And Biological Evidence. (Issue 3)................. 86
1. Mr. Reed Has Established Chain Of Custody .......................... 86
2. Mr. Reed's Unrebutted Expert Established That The
Evidence He Seeks To Test Contains Biological
Evidence .................................................................................... 89
CONCLUSION AND PRAYER ............................................................................. 92
vii
INDEX OF AUTHORITIES
Page
CASES
Anderson v. City of Bessemer,
470 U.S. 564 (1985)....................................................................................... 60
Blacklock v. State,
235 S.W.3d 231 (Tex. Crim. App. 2007) ...................................................... 52
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) ................................................83, 91
Brown v. State,
No. AP-75469, 2006 WL 2069445 (Tex. Crim. App. 2006) ........................ 63
Campos v. State,
No. 01-14-00167-CR, 2014 WL 7204966 (Tex. App.—Houston, Dec.
18, 2014, no pet.) ........................................................................................... 40
Dinkins v. State,
84 S.W.3d 639 (Tex. Crim. App. 2002) ........................................................ 80
District Attorney's Office for the Third Judicial District v. Osborne,
557 U.S. 52 (2009)......................................................................................... 93
Esparza v. State,
282 S.W. 3d 913 (Tex. Crim. App. 2009) ...............................................45, 53
Fain v. State, 2014 WL 6840282
(Tex.App.—Fort Worth 2014, pet. filed) ...............................................passim
viii
Ex parte Giles, No. AP-75712,
2007 WL 1776009 (Tex. Crim. App. June 20, 2007) .................................. 56
Green v. State,
100 S.W.3d 344 (Tex. App. —San Antonio 2002, pet. ref'd) ....................... 40
Ex parte Gutierrez,
337 S.W.3d 883 (Tex. Crim. App. 2011) ...................................................... 89
Holberg v. State,
425 S.W.3d 282 (Tex. Crim. App. 2014) ...............................................passim
Ex parte Karage,
No. AP-75253, 2005 WL 2374440 (Tex. Crim. App. Sept. 28, 2005) ......... 56
Kutzner v. State,
75 S.W.3d 427, 441-42 (Tex. Crim. App. 2002) ....................................passim
In re Luhr Brothers,
157 F.3d 333 (5th Cir. 1998) ......................................................................... 60
Marine Shale Processors, Inc. v. U.S. Environmental Protection Agency,
81 F.3d 1371 (5th Cir. 1996) ......................................................................... 60
Medellin v. State,
617 S.W.2d 229 (Tex. Crim. App. 1981) ...................................................... 87
In re Morton,
326 S.W.3d 634 (Tex. App.—Austin 2010, no pet.).........................39, 51, 57
Ex parte Phillips,
No. AP-76010, 2008 WL 4417288 (Tex. Crim. App. Oct. 1, 2008)............. 56
ix
Prystash v. State,
3 S.W.3d 522 (Tex. Crim. App. 1999) .......................................................... 39
Qadir v. State,
No. 02–13–00308–C.R., 2014 WL 1389545 (Tex.App.—Fort Worth
Apr. 10, 2014, no. pet.) .................................................................................. 43
Ex parte Reed,
271 S.W.3d 698 (Tex. Crim. App. 2008) ............................................8, 14, 20
Ex parte Reed,
No. WR-50,961-03, 2005 WL 2659440 (Tex. Crim. App. Oct. 19,
2005) .............................................................................................................. 14
Reed v. Stephens,
739 F.3d 753 (5th Cir. 2014) ......................................................................... 15
Routier v. State,
273 S.W.3d 241 (Tex. Crim. App. 2008) ..........................................................
39, 42, 44, 45, 48, 49, 51, 53, 55, 57, 58, 59, 69, 88, 92
Skinner v. State,
122 S.W.3d 808 (Tex. Crim. App. 2003) ....................................61, 63, 77, 84
Smith v. State,
165 S.W.3d 361 (Tex. Crim. App. 2005) ....................................40, 44, 62, 76
State v. Rivera,
89 S.W.3d 55 (Tex. Crim. App. 2002) .......................................................... 44
State v. Swearingen,
424 S.W.3d 32 (Tex. Crim. App. 2014) ......................................43, 52, 55, 92
Stoker v. State,
788 S.W.2d 1(Tex. Crim. App. 1989) .....................................................86, 87
x
Swearingen v. State,
303 S.W.3d 728 (Tex. Crim. App. 2010) ..........................................70, 71, 88
Thacker v. State,
177 S.W.3d 926 (Tex. Crim. App. 2005) ...................................................... 62
Whitfield v. State,
430 S.W.3d 405 (Tex. Crim. App. 2014) ...................................................... 90
Wilson v. State,
No. AP-76835, 2012 WL 3206219 (Tex. Crim. App. Aug. 7, 2012) .....62, 79
STATUTES
28 U.S.C. § 2241(b) ................................................................................................. 13
Tex. Crim. Proc. Code Ann. art. 11.071, § 5(a) (West Supp. 2014) ....................... 75
Tex. Crim. Proc. Code Ann. art. 11.071, § 5(a)(1) (West Supp. 2014) ................... 74
Tex. Crim. Proc. Code Ann. art. 11.071, § 5(d) (West Supp. 2014) .................74, 75
Tex. Crim. Proc. Code Ann. art. 64.01(a)(1) (West Supp. 2014) ..........38, 70, 71, 88
Tex. Crim. Proc. Code Ann. art. 64.01(b) (West Supp. 2014) ..........................38, 79
Tex. Crim. Proc. Code Ann. art. 64.01(a-1) (West Supp. 2014) .................48, 87, 90
Tex. Crim. Proc. Code Ann. art. 64.03(a)(1) (West Supp. 2014) ............................ 38
Tex. Crim. Proc. Code Ann. art. 64.03(a)(1)(A)(ii) (West Supp. 2014) ................. 87
Tex. Crim. Proc. Code Ann. art. 64.03(a)(2) (West Supp. 2014) ............................ 38
xi
Tex. Crim. Proc. Code Ann. art. 64.03(a)(2)(A) (West Supp. 2014) ................48, 90
Tex. Crim. Proc. Code Ann. art. 64.03(a)(2)(B) (West Supp. 2014) ....60, 62, 76, 78
Tex. Crim. Proc. Code Ann. art. 64.035 (West Supp. 2014) .......................39, 55, 82
OTHER AUTHORITIES
ABA, Evaluating Fairness and Accuracy in State Death Penalty Systems:
The Texas Capital Punishment Assessment Report (Sept. 2013),
available at
www.americanbar.org/content/dam/aba/administrative/death_
penalty_moratorium/tx_complete_report.authcheckdam.pdf ......................... 5
Hearing on S.B. 122 Before Senate Crim. Justice Comm., 82nd Leg., R.S.
(March 22, 2011) ........................................................................................... 72
Hearing on S.B. 122 Before House Crim. Jurisprudence Comm., 82nd Leg.,
R.S. (May 10, 2011) ...................................................................................... 72
H.J. of Tex., 82nd Leg., R.S. 4364 (2011) ............................................................... 73
Indictment, State v. Fennell, No. 07-1752-K368 (368th Dist. Ct., Williamson
County, Dec. 4, 2007) .................................................................................... 21
Innocence Project, Know the Cases, http://www.innocenceproject.org/know/ ...... 51
Lisa Faulkenberg, Maybe Judge Is Just Dad's Girl, Houston Chronicle,
Feb.16, 2011, http://www.chron.com/news
/falkenberg/article/Falkenberg-Maybe-judge-is-just-dad-s-girl-
1685509.php) ................................................................................................. 14
Ex parte Michael Morton, No. AP-76663 (Tex. Crim. App. Oct. 12, 2011) .......... 56
xii
Ex parte Reed, No. WR-50,961-01 (Tex. Crim. App. Feb. 13, 2002)..................... 13
Ex parte Reed, No. WR-50,961-04, -05 (Tex. Crim. App. Jan. 14, 2009) .............. 14
Ex parte Reed, No. WR 50,961-06 (Tex. Crim. App. July 1, 2009) ....................... 14
Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) .........................11, 12
S.J. of Tex., 82nd Leg. R.S. 955 (2011) .................................................................. 73
Texas Bill Analysis at 6, S.B. 3, March 21, 2001.................................................... 86
xiii
STATEMENT OF THE CASE
This is an appeal from an order entered in a capital case on December 12,
2014 by the District Court for the 21st Judicial District, Bastrop County, Texas (the
"District Court"). C.R. at 342-48. Appellant Rodney Reed timely filed his notice
of appeal on January 14, 2015. C.R. at 359-69. Appeal from a denial of a Chapter
64 motion in a capital case is a direct appeal to this Court. See Tex. Crim. Proc.
Code Ann. art. 64.05 (West 2006).
ISSUES PRESENTED
Issue 1: Whether the District Court wrongly concluded that Mr. Reed failed to
prove that exculpatory DNA test results would likely have resulted in
his acquittal?
Issue 2: Whether the District Court wrongly concluded that Mr. Reed's
Chapter 64 motion was intended to unreasonably delay the execution
of sentence or the administration of justice?
Issue 3: Whether Mr. Reed met his burden of showing (a) the presence of
biological material on the items which Mr. Reed seeks to test, and (b)
the chain of custody for such items?
xiv
I.
INTRODUCTION
This is an appeal from the denial of DNA testing in a capital murder case in
which the identity of the killer was – and still is – hotly disputed. The murder
weapon (a belt) and other evidence that Mr. Reed seeks to subject to DNA testing
were handled by Ms. Stites' killer and, if tested, should conclusively exonerate
Reed, and may identify the murderer. Reed is scheduled to die on March 5, 2015
for a murder he did not commit.
* * *
Ms. Stites was strangled to death with a belt with such force that the belt
broke into two pieces. One piece of the belt was found near Ms. Stites' body,
which was discovered along a rural roadside outside Bastrop, Texas. The other
piece of the belt was located near a truck owned by Ms. Stites' fiancé, Jimmy
Fennell, abandoned ten miles away at the local high school. The belt pieces
matched the ligature marks on Ms. Stites' neck and were admitted into evidence at
trial. Mr. Reed sought DNA testing of the belt and a tee shirt in 1999, but the court
denied the request without a hearing. See App. 11 (motion requesting testing),
App. 2 (State's opposition), and App. 3 (order denying motion).
1
References to pages in the Appendix filed with this brief are cited herein as “App. __.”
At the November 25, 2014 DNA testing hearing (the "Hearing"), Mr. Reed
presented unrebutted expert testimony that established that the person who handled
the belt during Ms. Stites' strangulation and violent death left DNA on it, and that
modern sophisticated "touch" DNA analysis of the belt and other evidence could
conclusively identify the killer. Incredibly, neither piece of the belt has ever been
subjected to DNA testing.
Ms. Stites' body was roughly handled, dressed and dragged after her death.
Thereafter, Stites' employee name tag was deliberately placed in the crook of her
knee. Mr. Reed presented unrebutted expert testimony establishing that, like the
belt pieces, the name tag contains DNA that may conclusively identify the person
who placed the tag on Ms. Stites' body. The name tag has never been subjected to
DNA testing.
Likewise, the bulk of Ms. Stites' clothing – her pants, underpants, shoes,
socks, work shirt, brassiere and a tee shirt found nearby – were likely handled by
her killer and contain "touch" DNA. These items also have not been DNA tested
(other than testing of small semen stains on portions of the underpants, discussed
infra).
Law enforcement made a number of egregious mistakes in investigating Ms.
Stites' murder. Although Ms. Stites' fiancé Fennell (a local police officer), was the
leading suspect for many months, the police inexplicably failed to search the
2
couple's apartment. After quickly gathering several items from Fennell's truck, the
police returned the truck to Fennell. He sold it almost immediately. None of the
items gathered from the truck were ever DNA tested, including a cigarette lighter
that the killer probably handled, as the body of Ms. Stites, a non-smoker, bore a
fresh cigarette burn.
Law enforcement placed plastic bags over the victim's hands to capture and
preserve any fingernail scrapings, and a condom was also collected. Again, none
of these items were subjected to DNA testing.
* * *
There were no eyewitnesses to Ms. Stites' murder, and the State presented no
physical evidence – no fingerprints, footprints, hair, clothing fibers or other
evidence – placing Mr. Reed at either the abandoned truck or where Ms. Stites'
body was found. Instead, the State presented trace amounts of Reed's DNA
detected on swabs taken from the body to establish that he and Stites had had sex,
and an inference – now discredited as junk science by the State's own chief
witness, medical examiner Dr. Bayardo – that estimated Ms. Stites' time of death
as shortly after sex. Based on the foregoing, the State argued that Mr. Reed
kidnapped, raped and murdered Stites.
Scientific evidence developed in Mr. Reed's post-conviction proceedings
conclusively disproves the State's timelines that formed the foundation of its entire
3
theory of the case. Such evidence demonstrates that Reed and Ms. Stites had sex at
least a day before her death, and that their sex was consensual, gutting the State’s
theory of the case.
* * *
The District Court considered Mr. Reed's Chapter 64 motion at the one-day
evidentiary Hearing. At the Hearing, Mr. Reed presented unrebutted expert
testimony conclusively establishing that DNA was left on the belt, name tag, and
other items sought to be tested, and that the chain of custody as to each was
satisfied.
At the conclusion of the Hearing, the District Court denied the motion in a
one-sentence ruling from the bench:
[T]he Court finds that this motion was filed untimely and calls for
unreasonable delay, that there's no reasonable probability the
defendant would not have been convicted had the results been
available at the trial of the case.
R.R. Vol. 4 p. 227. The Court's bench ruling made no mention of the testimony of
any of the witnesses who testified, and did not follow the statutory standard for
DNA testing – the statute contains no timeliness requirement, only that the motion
not be filed for the purpose of unreasonably delaying execution of judgment.
The State thereafter submitted ex parte extensive proposed findings and
conclusions which contained no citations to the record or governing legal
standards. The District Court adopted those findings and conclusions verbatim
4
(typographical errors included) without providing Mr. Reed any opportunity to
comment.2
2
The American Bar Association's Texas Capital Punishment Assessment Team has criticized
Texas district courts' practice of the "adoption of one party's proposed findings of fact and
conclusions of law verbatim" as "out of step with the overwhelming majority of capital
punishment states in the United States." ABA, Evaluating Fairness and Accuracy in State
Death Penalty Systems: The Texas Capital Punishment Assessment Report at xiii (Sept.
2013), available at www.americanbar.org/content/dam/aba/administrative/death_
penalty_moratorium/tx_complete_report.authcheckdam.pdf. The ABA has urged Texas to
"[r]equire the district court to draft independent findings of fact and conclusions of law in
each case." Id. at xiv. See App. 4.
5
II.
SUMMARY OF ARGUMENT
The District Court's denial of Mr. Reed's Chapter 64 motion reflects two key
errors. First, the District Court wrongly concluded that Mr. Reed failed to meet his
burden to show that exculpatory DNA evidence probably could have resulted in his
acquittal at trial. Mr. Reed presented unrebutted expert testimony that the killer's
DNA is present on the belt pieces, name tag, and clothing found on and near Ms.
Stites' body. Pursuant to Article 64.03(a)(2)(A) of the Texas Code of Criminal
Procedure, the District Court was required to – but did not – presume that DNA
testing of these items would show exculpatory results, i.e., that someone other than
Mr. Reed handled the belt used to strangle Ms. Stites, her clothing and her name
tag. The District Court should have considered whether, in light of this significant
exculpatory evidence, the jury would nonetheless have convicted Mr. Reed of Ms.
Stites' murder, when the State's evidence showed only that they had had sex, which
was in fact consensual. The District Court's conclusion on this point is clearly
wrong and should be reversed.
Second, the District Court erroneously adopted the State's proposed findings
that Mr. Reed's purpose in seeking Chapter 64 relief was to unreasonably delay the
execution of his sentence and the administration of justice. In its bench ruling, the
District Court applied the wrong standard with respect to delay and made no
6
findings regarding Mr. Reed's purpose in filing the motion, noting only that it was
"filed untimely and calls for unreasonable delay[.]"
Mr. Reed's initial post-conviction request for DNA testing was made 15
years ago, in 1999, two years before Chapter 64 was enacted. Mr. Reed
subsequently sought testing by consent of the State through a letter sent in January
2014, three months before the State even filed a motion to schedule his execution.
After months of negotiations, the State finally agreed in part to some DNA testing
limited generally to the rape kit items known to contain Mr. Reed’s semen and
hairs from which he was already microscopically excluded. That agreed order was
not finally obtained until a hearing in July 2014, when the State also obtained an
execution date. Mr. Reed's Chapter 64 motion was filed at this time, still seven
months before his currently-scheduled execution date.
In reaching its findings related to delay, the District Court also ignored the
fact that substantial delays in Mr. Reed's post-conviction proceedings (including
the DNA motion itself) resulted from the State's numerous requests for filing
extensions and postponements to accommodate vacation and other scheduling
issues. Instead, the District Court accepted wholesale the findings proposed by the
State, including the incredible finding that Mr. Reed's Chapter 64 motion was
intended to unreasonably delay his own as-yet-unscheduled execution, because one
of Reed's attorneys had previously filed a Chapter 64 motion on behalf of a
7
different convicted person in an entirely unrelated capital case. The District
Court's conclusion and findings on this point are in conflict with the record and
well-established case law and should be reversed.
Moreover, the State’s ex parte findings (adopted by the District Court)
omitted all findings regarding the chain of custody and whether the evidence at
issue contained biological material that can be tested for DNA, presumably
because Mr. Reed satisfied those elements. Indeed, the State did not even contest
chain of custody as to evidence in the possession of two of the three custodians
(the Attorney General's Office and the Department of Public Safety Crime Lab).
With respect to the third custodian, the State's witnesses testified that evidence held
by the Bastrop County Clerk had been handled without gloves at the trial by jurors
and court personnel, but Reed's experts established that chain of custody was
nonetheless complete, and that such handling did not preclude probative DNA
testing. None of these facts appear in the Findings and Conclusions.
Accordingly, and as further demonstrated below, the Court should reverse
the District Court's decision and direct that the belt used to murder Ms. Stites, and
the other evidence identified by Mr. Reed that was likely handled by her killer, be
subjected to DNA testing.
8
III.
STATEMENT OF FACTS
A. Background
Mr. Reed has already presented dispositive scientific evidence of his actual
innocence in a recently filed application for writ of habeas corpus. See Application
for Writ of Habeas Corpus, Cause No. WR-50,961-07 (Tex. Crim. App.), filed
February 13, 2015 (“Application for Writ of Habeas Corpus”). App. 5. And even
before this new evidence was developed, serious questions remained regarding the
identity of Ms. Stites' killer, the validity of the scientific evidence used to convict
Mr. Reed, and his actual innocence of the crime. Indeed, in deciding a prior
matter, this Court noted the facts give rise to "a healthy suspicion that Fennell had
some involvement in Stacey's death." Ex parte Reed, 271 S.W.3d 698, 747 (Tex.
Crim. App. 2008) (emphasis added). And, as Mr. Reed established through
unrebutted expert testimony, the murder weapon and a considerable amount of
other physical evidence that was handled by the killer can now be DNA tested to
exonerate Reed and potentially identify the killer's DNA profile.
1. The Murder Of Stacey Stites.
On April 23, 1996, Ms. Stites missed her predawn shift at a Bastrop grocery
store. Her mother was called, who then alerted Fennell and police. Ms. Stites'
body was found that afternoon near an unpaved road outside Bastrop.
9
Before Ms. Stites was reported missing, a Bastrop police officer observed
Ms. Stites' fiancé's truck in the Bastrop High School parking lot; nearby lay
crumpled papers and a broken piece of belt. App. 6.3 The school is approximately
ten miles from where Ms. Stites' body was found. App. 7.
Texas Department of Public Safety ("DPS") Crime Laboratory investigators
discovered numerous items at or near the body scene, including a second piece of
belt similar to that found near Fennell's truck, an injury to Ms. Stites's neck
consistent with the belt, and two beer cans. Karen Blakely, a DPS analyst,
examined the body and swabs and tape lifts to recover trace evidence; presumptive
tests indicated semen. App. 7. Stites' employee name tag was found placed on her
leg on the outside of her pants, which had a broken zipper. R.R. Vol. 2 at 44. Both
pieces of the belt, the name tag, and most items located at the body scene or in and
around Fennell's truck have never been tested for DNA evidence.
2. The Investigation.
Fennell was for months the primary suspect in Ms. Stites' killing, even
though the semen found was not his. App. 8. On two occasions, Fennell failed
polygraph tests asking whether he strangled, hit or struck Stites.4 App. 8, 9.
3
Documents at App. 6-16 are excerpts of the Reporter's Record of the trial phase in Cause
No. 8701, State of Texas v. Reed, Bastrop County, Texas, 21st Judicial District.
4
Fennell underwent exams in October and December 1996. Both examiners reported that
Fennell deceptively answered questions like "did you strangle Stacey Stites," "did you see
her on the morning of April 23," and "did you strike Stacey Stites." App. 13.
10
During police questioning Fennell repeatedly invoked his Fifth Amendment rights.
App. 14.
At Mr. Reed’s trial, the State contended it was “logistically impossible” for
Fennel to be guilty because he could not have left his truck in Bastrop around 5:00
a.m. and traveled 30 miles back to his apartment in Giddings, Texas by 6:45 a.m.,
where Stites's mother called him. App. 9, 14. The State inexplicably ignored the
possibility that Fennell obtained a ride back to Giddings from associates that
appear to have been investigated by the Bastrop Sheriff. See Application for Writ
of Habeas Corpus at 25-27, App. 5 (discussing investigation of Curtis Davis and
David Hall).
Mr. Reed was never investigated as a suspect in Ms. Stites' murder until he
was implicated in an unrelated criminal investigation and his DNA was compared
with that taken from Stites.
3. The State's Unsupported Scientific Evidence Results In Mr.
Reed's Conviction.
Law enforcement conducted some DNA testing during their investigation,
focusing on the swabs taken from Ms. Stites' body. They found three of Mr.
Reed's intact sperm on a slide taken from Ms. Stites' vaginal cavity. The State then
developed a theory of Mr. Reed's guilt premised on a scientific fallacy: that sperm
remain intact in the body for no more than 24 hours after sex. The State contended
that finding only a few intact sperm on a swab collected on the evening of April
11
23rd proved that Mr. Reed raped Ms. Stites at or near the time of her murder. App.
16. This false conclusion was bolstered by the medical examiner's testimony that
Ms. Stites had been anally raped contemporaneous with her death. Id. at 45-46.
App. 16. The State also argued that Mr. Reed's DNA collected from Ms. Stites'
breast was saliva from recent sexual contact, based solely upon Fennell's
uncorroborated testimony that Ms. Stites showered the previous day (App. 16)
(arguing "normal people take showers and wash things off of them. [A rape]
happened that morning."). The murder weapon (the belt used to strangle Ms.
Stites) was never tested for DNA.
Mr. Reed's trial counsel did not call a forensic pathologist, criminalist or
serologist, but relied only on a DNA analyst who did not substantively disagree
with the results of the State's limited DNA testing. The jury therefore was given
no alternative to the false impression created by the State's putative forensic
evidence, and critically, was deprived of the knowledge of whose DNA appeared
on the belt used to strangle Ms. Stites, her name tag and clothing, and other
evidence touched by her killer.
Mr. Reed was convicted of capital murder following a trial presided over by
the Hon. Harold R. Towslee and sentenced to death by judgment dated May 29,
1998. The Court of Criminal Appeals affirmed on December 6, 2000. Reed v.
State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000).
12
B. Mr. Reed's Post-Conviction Proceedings
While Mr. Reed's direct appeal was pending, appointed counsel filed his
initial state habeas application. Petition for Writ of Habeas Corpus, Cause No.
WR-50, 961-01 (Tex. Crim. App.) After the State attached a previously
undisclosed exculpatory DNA report to its response, Mr. Reed supplemented his
claim and received a limited evidentiary hearing. Ex parte Reed, 271 S.W.3d at
739. Reed raised a Brady claim relating to the State's mid-trial suppression of an
exculpatory DNA report from testing of a beer can found near Ms. Stites' body.
The results showed that three people – Ms. Stites; Ed Salmela, a Bastrop police
officer;5 and David Hall, a Giddings police officer (and close friend and neighbor
of Fennell) – all were potential matches to the DNA on the beer can. Additional
DNA analysis was done regarding the beer can DNA.
In March 1999, during Mr. Reed's state habeas proceedings, he filed a
motion seeking DNA testing of the belt used as a ligature and the white tee shirt
found near Ms. Stites' body. App. 1. The motion argued that DNA testing was
necessary to develop Mr. Reed's habeas claims of actual innocence and ineffective
assistance of trial counsel. Id. at 2. The motion was supported by an affidavit of
DNA expert Elizabeth A. Johnson, Ph.D., Mr. Reed's DNA expert at trial. Dr.
5
Officer Salmela died a few months after Stites was killed from a gunshot wound to the head.
His death was determined to be a suicide, despite the fact no testing was conducted to see
whether his hands showed gunpowder residue. Mr. Reed moved for such testing but the
motion apparently was never ruled upon. See App. 24.
13
Johnson testified that the belt "was not thoroughly examined for the presence of
blood, tissue or skin cells that might be present if the belt were used, as believed, to
strangle the victim, Stacy Stites." She further stated that "blood, tissue or skin cells
foreign to the victim, if found, could indicate the identity of the perpetrator." App.
1, Ex. A ¶ 8. Dr. Johnson also testified that the tee shirt, which had been stored at
the State's lab facility, had not been tested for saliva, and that she was unable
during the trial to conduct such testing there. App. 1, Ex. A ¶ 11. The District
Court denied Mr. Reed's testing motion. App. 3.
Thereafter, the District Court adopted the State's proposed findings of fact
and conclusions of law and recommended that this Court deny relief on Mr. Reed's
state habeas petition. On appeal, this Court then adopted Judge Towslee's decision
and determined that Mr. Reed's supplemental claim was procedurally defaulted.
See Ex parte Reed, No. WR-50,961-01 (Tex. Crim. App. Feb. 13, 2002).
Mr. Reed then commenced a federal habeas proceeding with new counsel.
New counsel uncovered additional exculpatory evidence and, as required, obtained
a stay of the federal court proceedings so that the new claims could be first
presented to the state court in a habeas application, which was filed March 29,
2005.6 In this application, Mr. Reed presented claims based on new forensic
6
Under established federal habeas law, claims based upon exculpatory evidence discovered
post-conviction must generally be presented to the state courts before they may be pursued
in federal court. See 28 U.S.C. § 2254(b)(1)(A).
14
evidence which supported his contention that he had a relationship with Ms. Stites
and that the two had sex over a day before her death. Reed also raised claims that
the State suppressed exculpatory evidence, including:
An eyewitness who saw Fennell and Stites arguing by the side of the
road on the morning of her death;
An eyewitness placing Stites in a car on the outskirts of Bastrop with
unidentified men the night before she disappeared, at the time when
Fennell claimed she was at home and asleep;
A statement from a police officer who said that Fennell bragged that if
he caught his girlfriend cheating, he would strangle her with a belt;
and
Multiple complaints and lawsuits against Fennell alleging racism and
physical abuse while on duty as a police officer.
This Court remanded two Brady claims for an evidentiary hearing, and
found Mr. Reed's remaining claims to be procedurally defaulted. Ex parte Reed,
No. WR-50,961-03, 2005 WL 2659440 (Tex. Crim. App. Oct. 19, 2005) (mem.
op., not designated for publication). The hearing was conducted by the Hon. Reva
Towslee Corbett, the daughter of the trial judge who oversaw Mr. Reed's trial.7
After a hearing, Judge Corbett adopted verbatim the State's proposed findings of
fact and conclusions of law, following which Mr. Reed appealed. During the
7
Both judges were also involved in the trial and habeas proceedings of Anthony Graves, who
was later found innocent and released from death row. Allegations of improper judicial
conduct by this father/daughter team are well-known. See Lisa Faulkenberg, Maybe Judge Is
Just Dad's Girl, Houston Chronicle, Feb.16, 2011, http://www.chron.com/news
/falkenberg/article/Falkenberg-Maybe-judge-is-just-dad-s-girl-1685509.php). Judge Corbett
has since recused herself from further proceedings. App. 17.
15
appeal, Mr. Reed filed additional state habeas applications raising Fennell's rape
conviction and recently filed corruption charges against Bastrop County Sheriff
Richard Hernandez. This Court denied relief. Ex parte Reed, 271 S.W.3d 698
(Tex. Crim. App. 2008); Ex parte Reed, No. WR-50,961-04, -05 (Tex. Crim. App.
Jan. 14, 2009); Ex parte Reed, No. WR 50,961-06 (Tex. Crim. App. July 1, 2009).
Mr. Reed thereafter filed in federal court his Second Amended Petition (the
"Petition"), which restarted his abated federal proceeding. Mr. Reed's federal
habeas proceedings were substantially delayed – in total, by more than six months
– due to the State's repeated extension requests. For example, during these
proceedings, the State obtained three extensions of time totaling 62 days.8 Mr.
Reed's habeas petition was eventually denied, and the denial later affirmed by the
Fifth Circuit. See Reed v. Stephens, 739 F.3d 753, 790 (5th Cir. 2014). During the
Fifth Circuit proceedings, the State requested and received three more extensions
of briefing deadlines, totaling 71 days.9 Thereafter, Mr. Reed sought a writ of
8
See Unopposed Motion To Extend Time To File Responsive Pleading To Petition filed April
4, 2003 (Docket No. 42); Order On Motion entered April 8, 2003 (Docket No. 43) (granting
State a 60-day extension to respond to habeas petition); see also Order Granting Motion To
Extend Time entered April 28, 2003 (Docket No. 50) (granting State extension to respond to
discovery motion). (Reed v. Thaler, C.A. No. 02-cv-142, W.D. Tex.). App. 18.
9
See Phone Extension Confirmed entered on August 5, 2013 (granting 30 day extension to
file appellee's brief); Unopposed Motion to Extend Time to File Respondent-Appellee's
Brief filed on September 3, 2013 and Order on Motion entered September 4, 2014 (granting
additional 31 day extension to file appellee's brief); Unopposed Motion for Extension of
Time to File a Response to Petitioner-Appellee's Petition for Rehearing En Banc and Order
on Motion entered February 27, 2014 (granting 10 day extension to file response) in Reed v.
Stephens, No. 13-70009 (5th Cir. 2013). App. 19.
16
certiorari from the United States Supreme Court. During the Supreme Court
briefing, the State twice requested and received additional time to respond, for a
total of 60 additional days.10 The Supreme Court denied Mr. Reed's certiorari
petition on November 3, 2014. By that time, the State had obtained more than six
months' of extensions in Reed's federal habeas proceedings alone.
1. New Scientific Evidence Eviscerates The State's Theory Of Reed's
Guilt.
Since the trial, the State’s key forensic witness – Robert Bayardo, M.D.—
has retracted his opinion offered at trial and now contradicts the State’s scientific
proof that Mr. Reed sexually assaulted Ms. Stites. (C.R. 119-122) In addition,
three of the most experienced and well-regarded forensic pathologists in the
country – Michael Baden, Werner Spitz and LeRoy Riddick – all reevaluated the
case and determined that Mr. Reed’s guilt is medically and scientifically
impossible. These three nationally renowned experts unanimously agree that (1)
Reed did not sexually assault Stites and (2) she was killed much earlier that the 3
a.m. estimate relied upon by the State at trial. App. 5 at 3, 37-48. Indeed, these
three individuals, who have more than 100 years of combined expertise, all agree
that Stites was murdered before midnight on April 22, 1996 and kept in a face-
10
See Order extending time to file response to petition to and including August 20, 2014,
entered July 21, 2014 (granting 30 day extension); See also Order further extending time to
file response to petition to and including September 19, 2014, entered August 19, 2014
(granting additional 30 day extension) in Reed v. Stephens, No. 13-1509 (U.S.). App. 20.
17
down position for 4-6 hours before she was transported in Fennell’s truck and
dragged into the brush where she was discovered lying on her back on the
afternoon of April 23, 1996.
Dr. Werner Spitz explained that the observable forensic evidence including
“lividity, rigor, the amount of residual sperm in the genital tract, and evidence of
decomposition” rendered the State’s theory of the case “medically and
scientifically impossible”. App 5 at 3. Spitz stated that when all those factors
were considered together, “it becomes indisputable that the time of death was
considerably earlier than 3:00 a.m. on April 23rd”, the timing required for the
State’s theory of the crime to hold true. Id. He states instead that “[a]ll findings
point to a post mortem interval 20-24 hours prior to the time the body was filmed.”
Id. The State’s forensic crime scene examiner was filmed manipulating the body
between 7-8 p.m on April 23rd. Thus, the latest Ms. Stites could have been killed
was just before midnight on April 22nd, during the time when Fennell – now the
only possible suspect – claims he was home with Ms. Stites.
2. New And Mounting Evidence Corroborates Prior Testimony of
Reed and Stites’ Relationship And Reveals Fennell As An Abuser
Of Police Power And A Serial Rapist Who Stated He Would Kills
Ms. Stites If She Were Unfaithful By Strangling Her With A Belt.
In addition to the scientific and motive evidence discussed above, more
evidence implicating Fennell in Ms. Stites' murder has emerged since Mr. Reed's
18
conviction. This evidence undermines Fennell's uncorroborated alibi that he was
home asleep when Ms. Stites was murdered, reveals Fennell as a serial rapist and
an unabashed abuser of police power, and provides a disturbingly prophetic
account of Fennell discussing how he would kill an unfaithful girlfriend.
Constitutional claims based upon much of this evidence have been to date rejected,
but there is no question that mounting evidence raises serious doubts about Reed's
guilt that could well be resolved through DNA testing before his life is
extinguished.
New credible witnesses have come forward to corroborate the fact that Reed
had a consensual relationship with Ms. Stites. Alicia Slater, a co-worker of Stites
at the H.E.B., state that Stites confided in her that she was “not excited about
getting married . . . [and] that she was sleeping with a black guy named Mr. Reed
and that she didn’t know what her fiancé would do if he found out.” App. 5 at 5,
55-56. And, Lee Roy Ybarra, another H.E.B. employee, attested to the relationship
between Reed and Stites. App. 5 at 57. He stated that when Reed came into the
store, Stites’ “demeanor would change” and she was “happy to seek him and
would be in a good mood.” App. 5 at 56. In contrast, when Fennell entered the
store, “she would become a nervous wreck . . . there were times Ms. Stites would
deliberately hide so that she didn’t have to talk to him.” App. 5 at 57.
19
In addition to these two witnesses, there is further evidence that Fennell
publicly stated he would gravely harm Ms. Stites if he discovered that she had been
unfaithful. A police academy classmate of Fennell's, Sergeant Mary Blackwell,
who witnessed Fennell yelling at Ms. Stites, testified that Fennell said he would
kill Ms. Stites with a belt if he discovered she had been unfaithful:
He said, "If I ever find my girlfriend cheating on me, I'll strangle her."
I told him that if he did that he would be caught because he would
leave fingerprints. Jimmy then said, "That just goes to show you'll
never know shit; I won't leave any prints because I'll use a belt."
Ex parte Reed, 271 S.W.3d at 719, 724.
Fennell wasted no time in mourning Ms. Stites, and began dating again
shortly after her death. His next girlfriend described him as abusive, possessive,
controlling, and extremely prejudiced toward African–Americans. After the
woman ended her relationship with Fennell, he relentlessly stalked her at home and
work, and further abused his police authority to harass men she dated. Id. at 745-
46.
Evidence further implicating Fennell has emerged, in addition to that which
this Court has already acknowledged "may indeed arouse a healthy suspicion that
Fennell had some involvement in Stacey's death." Ex parte Reed, 271 S.W.3d at
747. Fennell was accused of kidnapping and raping two different woman within
20
the span of one week and while he was on duty.11 Shortly thereafter, three more
women reported that Fennell abused his power as a peace officer to sexually harass
and terrorize them.12 Fennell is presently in prison for sexually assaulting a
women he took into police custody, and is now nearing the end of his 10-year
sentence. Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 2009 WL 97260, at
*3-4 (Tex. Crim. App. Jan. 14, 2009). See also App. 21.
C. Mr. Reed's DNA Testing Requests And Motion.
1. The State's stalling tactics concerning Mr. Reed's DNA
testing requests.
On January 13, 2014, Mr. Reed's counsel wrote to the Bastrop County
District Attorney requesting the State's agreement for DNA testing through a
transparent and collaborative process. See C.R. 108-117 (Letter to Bryan Goertz
requesting agreed DNA testing). Reed's letter explained that the State would incur
no costs from the testing, and that all test results would be shared with the State
11
See Indictment, State v. Fennell, No. 07-1752-K368 (368th Dist. Ct., Williamson County,
Dec. 4, 2007) (victim reported that Fennell kidnapped her following a domestic disturbance
call, drove her to a secluded location and raped her); Police Report attached as exhibit to Ex
parte Reed, No. WR-50,961-04 (victim reported Fennell strip-searched her in front of other
male officers, drove her to a park and raped her.
12
See Police Report attached as exhibit to Ex Parte Reed, No. WR-50,961-04 (victim reported
that Fennell isolated her from her family following a traffic stop, threatened her, and told her
he would come to her home later and expected her husband to be away and her children
asleep); See Police Report attached as exhibit to Ex Parte Reed, No. WR-50,961-04 (victim
reported Fennell threatened her by claiming she could have her children taken from her he
"could bend her over the couch and 'fuck' her"); Police Report attached as exhibit to Ex
parte Reed, No. WR-50,961-04 (reporting that Fennell threatened to send a woman to jail
and returned later to ask her personal questions about her dating interests and social
activities).
21
when released. Id. The Bastrop County District Attorney, Bryan Goertz, agreed
that DNA testing "should take place in the interests of justice," but referred the
matter to the Attorney General's Office.13 See Aff. Of Bryce Benjet ¶ 3, Ex. 1 to
Reed’s Opposition to State’s Motion for Accelerated Appeal filed in this case on
Jan. 30, 2015 (herein “Benjet Aff.”).
Although the State's initial position was encouraging, negotiations with the
State dragged on for more than five months until the State finally arrived at a
decision regarding what it would agree to test. Within about two months of Mr.
Reed’s January 2014 letter, the majority of the evidence which Reed sought to test
was either in the Attorney General’s possession or had been inventoried by the
State in the ensuing month. See C.R. 214 (inventory dated 2/14/14 of evidence
held at Bastrop County Clerk's Office). Discussions with the Attorney General's
Office nonetheless proceeded slowly.
On April 8, 2014, the State filed a motion to set Reed's execution date, while
still delaying resolution of Mr. Reed's long-pending DNA testing request. C.R. 34-
35. Mr. Reed's counsel then proposed a stipulated interim order to allow for
testing of items which the State agreed to test, while the State continued to
consider the remainder. See Benjet Aff. ¶ 4. This, too, met with a tardy response.
At the end of April, 2014, the Attorney General advised that any agreed DNA
13
At the time Mr. Reed's letter was sent, he was seeking a rehearing before the Fifth Circuit.
The State did not move to set an execution date, for another three months.
22
testing would be extremely limited, and continued to defer a decision regarding the
evidence to be tested on a consensual basis. Benjet Aff. ¶ 5. The Assistant
Attorney General insisted that all final decisions on the agreed testing be deferred
until his supervisor returned from a lengthy vacation.
The supervisor's return from vacation did not abate the State's delays. Two
more months passed before the Attorney General approved the form of stipulated
testing order and permitted it to be presented to the District Court. See July 14,
2014 Agreed Order, C.R. 144-48. The State insisted that Mr. Reed's execution
date be set at the same time, and the District Court acquiesced. C.R. 149-50.
2. Mr. Reed files his DNA testing motion after the State rejects the
majority of his testing requests.
Once it became clear that the State would not agree to any meaningful DNA
testing, Mr. Reed's counsel prepared a DNA motion, which was filed on the same
day. C.R. 74-143. Belying any suggestion of urgency, the State took the full 60-
day response period to file its opposition, even though the State had already
advised that it would oppose all further evidence testing. C.R. 161. Mr. Reed's
counsel sought a prompt hearing on the DNA testing motion in early October, but
no hearing took place until late November 2014, because the State asked to delay
the hearing to accommodate another personnel vacation by its staff. Benjet Aff. ¶
6.
23
(a) Mr. Reed's DNA Motion Was Supported By Two Affidavits.
Mr. Reed's DNA motion argued that the belt that was used to strangle Ms.
Stites, her clothing and name tag, and other pieces of evidence collected from her
body, the truck and death scene, should be tested for DNA evidence deposited by
the killer during the strangulation.
In support of his motion, Mr. Reed submitted an affidavit14 from a DNA
testing expert, Deanna D. Lankford, M.T. (ASCP), the Associate Laboratory
Director at Cellmark Forensics in Dallas, Texas. C.R. 243-54. Cellmark is an
accredited laboratory that specializes in forensic DNA testing. C.R. 244, ¶ 2. Ms.
Lankford explained that, because of advances in DNA testing technology,
Cellmark could now obtain new and relevant information from evidence gathered
in the investigation of Stites' murder.
Modern DNA technology is considerably more sensitive and
sophisticated than the testing available in 1998 when Mr. Reed's trial
took place and in 2001 when additional DNA testing was performed.
Current DNA technology can develop full or partial genetic profiles
where DNA methods in use in 2001 and earlier could not. Current
DNA technology is sensitive enough to identify an individual's unique
DNA profile from a microscopic amount of biological material
previously undetected using older methods. Current technology is
also designed to develop DNA profiles from poorly preserved or
decades-old degraded samples that were unsuitable for testing using
the testing techniques available over a decade ago. Likewise,
advancements in DNA technology have allowed us to obtain genetic
14
The Clerk's Record contains multiple copies of Lankford's affidavit. Citations herein are to
the first copy only.
24
profiles despite the presence of chemicals that in the past would
inhibit the DNA amplification process.
C.R. 245-46, ¶ 9. In particular, Lankford stated that DNA testing methods such as
Y-STR, Mini-STR and mitochondrial DNA analysis could provide new
information if used on the evidence that was gathered in the 1996 murder
investigation, and that these methods were not previously available or used on the
evidence that Reed sought to have tested. C.R. 246-47, ¶ 10-13.
Moreover, Lankford stated that, to a reasonable degree of scientific
certainty, biological material is present on the items Reed seeks to test, because
every time someone comes into contact with another human, place, or thing,
physical material (trace evidence) is exchanged. C.R. 247, ¶¶ 15-16. She also
attested to her certainty regarding the existence of biological material on the
evidence Reed seeks to have tested by her review of crime lab and police reports,
and photographs of the evidence. C.R. 247, ¶ 15. Ms. Lankford further attested
that these items were either in close and extended contact with a ready source of
biological material, or had been forcefully repeatedly handled by a person (the
perpetrator) whose shed epithelial cells can be detected and the DNA thereon
analyzed. C.R. 248, ¶ 18.
Mr. Reed also filed his own sworn affidavit as required by statute (C.R. 317-
18). In this affidavit, Mr. Reed explains the presence of his DNA on the samples
taken from Stites’s body. He and Ms. Stites met in October or November 1995 and
25
carried on an occasional, mostly clandestine relationship, because both were dating
other people. C.R. 317, ¶¶ 2-5. Less than a month before Ms. Stites' murder,
Fennell discovered Reed's relationship with Stites; Fennell confronted Reed and
threatened him, saying that Reed "was going to pay." C.R. 318, ¶ 6.15 Upon
hearing of the threat, Ms. Stites told Reed that if Fennell caught them, he would
kill her. Id. Mr. Reed stated that the last time he saw Ms. Stites was very late
Sunday, April 21 or very early Monday April 22, and that he and Ms. Stites had
sex in Bastrop State Park. C.R. 318, ¶ 7. Mr. Reed further attested that when he
heard of Ms. Stites' death, he became afraid that if he told the police of his
relationship with Ms. Stites and Fennell's threats, he would become a suspect or
Fennell would retaliate. C.R. 318, ¶ 8. For that same reason, Mr. Reed denied
knowing Ms. Stites when he was arrested on a drug charge a year later. Id.
(b) Mr. Reed Put Forth Unrebutted Testimony At The
Evidentiary Hearing On His DNA Motion.
The District Court held an evidentiary hearing on Reed's DNA Motion on
November 25, 2014. At the Hearing, Reed put forth two witnesses, John Paolucci,
a former police detective and an expert in crime scene investigation, and Ms.
Lankford. (R.R. Vol. 2 at 12-13, 88) Both Mr. Paolucci and Ms. Lankford
15
This harrowing account is corroborated by the affidavit of Chris Aldredge that was filed in
prior proceedings as well as a note in the investigative files of the Bastrop County District
Attorney’s Office that indicates a practice in which Jimmy Fennell would ridge along with
Curtis Davis in his patrol car. See Application for Writ of Habeas Corpus at 30, n.18
(statement of Carol Stites). App. 5.
26
testified that the evidence that Mr. Reed sought to have tested could and should be
tested for DNA to provide evidence of Reed's innocence.
Mr. Paolucci testified that DNA evidence located upon on the belt pieces
and other items that the killer touched could reveal the perpetrator's identify and
exculpate Mr. Reed. R.R. Vol. 2 at 17-18. Ms. Lankford testified that any item
that had been touched has DNA on it. R.R. Vol. 3 at 135. The State did not
introduce any evidence to refute the expert testimony provided by these two
witnesses. R.R. Vol. 4 at 208. Reed's hearing evidence is summarized below.
(c) Items On Ms. Stites' Body.
Photos of Ms. Stites' body show that she was wearing jeans, underwear,
socks, bra and a left shoe. R.R. Vol. 2 at 29-38. Her H.E.B. name tag was
carefully placed in the crook of her knee. (R.R. Vol. 5, Def. Ex. 5)
The chart below summarizes the testimony regarding the items located on
Stites' body, and the basis for DNA testing of each:
DESCRIPTION CUSTODIAN SUMMARY OF TESTIMONY
Victim's pants Bastrop Karen Blakely testified that Stites' pants were
County Clerk pulled off in a violent manner. "this zipper
here is broken. It's unzipped, her pants are
parted but this zipper is actually broken and
there is a tooth from the zipper actually pulled
off, it's missing." App. 7. She also testified
that Stites had post mortem scratches to one
side of her body. App. 7.
Wilson Young, the State's forensic serologist
noted that he observed stains on Stites' pants.
27
DESCRIPTION CUSTODIAN SUMMARY OF TESTIMONY
At the time, he testified that he believe that
they were not of evidentiary value, so they
were not tested for DNA. App. 12.
Paolucci testified that the perpetrator may have
pulled her pants off or redressed her. "In order
to drag the victim to the location where she
was found, there would have to be a lot of skin
cell evidence deposited on the cuffs of the
pants or maybe the waistband of the pants to –
to move her. As well as the button
closure . . . . That's an area where there's
going to be some pressure and it's a non-
porous substrate and skin cells would be
scraped off on the button. I think that would
be a good – good area to test." R.R. Vol. 2 at
29-30.
Victim's Bastrop Ms. Blakely testified at trial that Stites'
underwear County Clerk underwear were loose and "baggy". App. 7.
Only a stain from the crotch area was tested at
trial. App. 12.
Paolucci testified that DNA could be collected
from the victim's underwear because "if the
perpetrator grabbed the waistband inside the
panties, he could be depositing epithelial cells
there." R.R. Vol. 2 at 33.
Two socks Bastrop Paolucci testified that the socks found on the
County Clerk victim could contain relevant DNA evidence
of the killer, "if the victim was dressed, there's
going to be skin cells on the socks. Also, the
movement of the vehicle, a sneaker was
removed that could – the socks could have
been held when the victim's being dragged; so
that would be a significant area for – to test for
epithelial cells." Paolucci stated that the
"upper cuff of the sock that had been pulled on
28
DESCRIPTION CUSTODIAN SUMMARY OF TESTIMONY
and off" should be tested for DNA evidence.
R.R. Vol. 2 at 34-35.
Left shoe Bastrop Blakely noted at trial that the crime scene
County Clerk investigators noted that it was significant that
she was partially undressed and wearing only
one shoe. App. 7.
Paolucci testified that the left shoe, which was
found tied to the body, should be tested for
DNA from the perpetrator, "I would test the
heel, which would be a convenient area to grab
to – to move the victim, the – the toe area of
the shoe if the victim's dressed and also the
laces." Paolucci stated that these areas should
be tested because it appears the victim was
dragged. R.R. Vol. 2 at 35-37.
Bra Bastrop Blakely testified at trial that Stites' shirtless
County Clerk body was carried at least part of the way to the
crime scene. App. 7.
Paolucci testified that the bra should be tested
for DNA evidence because "that could also
have – have been used to handle the victim, to
move the victim. If the victim had been
dressed, the clasp on the bra is another one of
those non-porous substrates that would be able
to scrape epithelial cells off the person
handling it." R.R. Vol. 2 at 37.
Employee name Bastrop Blakely testified at trial that it was "very
tag County Clerk significant" to the crime scene investigators
that the HEB name tag was placed in the
"crook" of Stites' knee. App. 7.
Paolucci stated that the HEB tag found placed
on Stites' leg "[b]ecause that would be
something that's at the scene where the body
was found. It's the – if the perpetrator handled
29
DESCRIPTION CUSTODIAN SUMMARY OF TESTIMONY
it, he would have deposited DNA on it; and so
I consider that highly probative [sic] piece of
evidence." R.R. Vol. 2 at 44.
Plastic bags Attorney Paolucci stated that these bags should be tested
placed over General because "[i]n a struggle, the – the victim could
victim's hands have scratched the perpetrator and got skin
during cells on her hands, on her fingernails, which I
investigation understand were very short; that could then be
transferred to the bag." R.R. Vol. 2 at 53-54.
(d) Items Found At Crime Scene.
Law enforcement collected but did not DNA test a number of items from the
scene where Stites' body was found, including a white tee shirt, two beer cans and
a section of woven belt. At trial, Ms. Blakely testified that the white tee shirt was
held by someone, and crumpled up to wipe away dirt. App. 7. Also at trial, the
section of woven belt was determined to be part of the murder weapon. App. 11.
Moreover, at trial, it was determined that the belt had been torn, not cut, indicating
that the murderer handled the belt with his hands. App. 10. As stated at page 13,
infra, the two beer cans found on the roadside near the scene were previously
swabbed and tested for DNA using less precise methods than currently available.
The results of those tests conclusively excluded Mr. Reed, but Ms. Stites, Officer
Salmela, and Officer Hall (a close friend and neighbor of Fennell), all were
potential matches to the DNA on the beer can. There is no reason for Salmela or
Hall to have been present at the scene when Ms. Stites' body was found. A
30
condom collected and turned over to police likewise was never tested for DNA of
the victim or the killer.
Paolucci testified at the Hearing that the following items contained DNA
evidence of the likely perpetrator and should be tested:
DESCRIPTION CUSTODIAN SUMMARY OF TESTIMONY
White t-shirt Bastrop Blakely testified that the t-shirt had been held
County Clerk and "crinkled." App. 7.
Paolucci testified that the t-shirt found in the
brush near the victim's body should be tested
for DNA of both Stites and the perpetrator. "I
would test it in the areas that – like the collar,
some areas that would be likely to identify the
wearer so we can say that this is part of this
crime scene; and then I would test it for areas
where it could have been removed and handled
by a perpetrator." R.R. Vol. 2 at 38.
Section of belt Bastrop Blakeley testified that "on the road, leading
(no buckle) County Clerk towards the crime scene was a link of webbed
belt" that was significant "because it matched
the pattern that was on the victim's neck."
App. 7.
Paolucci testified that the belt should be tested
"[b]ecause of the corresponding marks to the
victim's throat, it would be apparent that the
perpetrator handled it and with some degree of
force which would cause a rubbing action and
a heavy deposit of epithelial cells on the belt."
R.R. Vol. 2 at 39.
Two Busch beer Attorney Paolucci testified that the beer cans were
cans General "highly probative evidence" because they were
found at the scene "where the victim was
found." Paolucci stated he would test "the lip
around the opening . . . where the person
consuming the beer would be placing their
31
lips, and I would also perform latent print
development on the – on the cans – on the bite
of each can" and that he would also test the
cans for epithelial cells. R.R. Vol. 2 at 46-47.
Swabs/samples DPS Crime Paolucci stated that these samples should be
taken from Lab tested for same reasons as the cans themselves,
mouths of two which are highly probative. R.R. Vol. 2 at 55.
Busch beer cans
Used condom Attorney Paolucci testifies that the condom, which was
General recovered by a resident near the crime scene
and brought to investigators and taken into
evidence, should be tested. "I would
recommend testing the outside of the condom
because now you would know if this is related
to this incident. If it has the victim's DNA on
it, then we can say this is related to this
incident." R.R. Vol. 2 at 53.
Extract samples DPS Crime Paolucci testified that these samples should be
from blue Lab tested for the same reasons as the condom
condom stored in itself. R.R. Vol. 2 at 54-55.
coin envelope
(e) Items Found Near And Inside Fennell's Truck.
Several items found near or around Fennell's truck were likely touched by
Ms. Stites' killer, but were never DNA tested, including another section of the belt
used to strangle Ms. Stites. Mr. Paolucci testified that the belt and other items
noted below were observed by crime scene investigators as being out of place and
could have been used in the commission of the crime, and are likely to have the
perpetrator's DNA on them. Paolucci's unrebutted testimony established that the
items found near and inside Fennell's truck should be tested for the perpetrator's
DNA, as follows:
32
ITEM
CUSTODIAN SUMMARY OF TESTIMONY
DESCRIPTION
Section of belt Bastrop Paolucci testified that DNA evidence collected
with buckle County Clerk from this section of the belt should be
collected and tested because the killer touched
the belt since it was the murder weapon. "The
belt was broken; so, being that it's also
consistent with the – with the other portion of
the belt, which is consistent with the marks on
the victim's throat, that would have had a
significant force applied to break that belt; and
also the buckle is a non-porous substrate
suitable for DNA." R.R. Vol. 2 at 43.
HEB pen Attorney Trial testimony indicated that the HEB pen
General was located next to the section of belt found at
the truck scene. App. 15.
Paolucci stated that the HEB pen that crime
scene investigators found on the ground near
the truck should be tested because "it can be
tied back to the vehicle, and it was also
handled at some point either recklessly being
knocked out of the vehicle or – or dropped."
R.R. Vol. 2 at 48-49.
Right shoe Bastrop Paolucci testified that portions of Stites" right
County Clerk shoe should be tested – the heel, toe and laces
areas." "If [the shoe] has been removed from
the victim and untied so the laces in those
same areas would be probative." R.R. Vol. 2
at 39-40.
Earring Bastrop Paolucci stated that the earring found in
County Clerk Fennell's truck should be tested because
"[b]eing that the backing was found in the
victim's hair, it's safe to assume that she was
wearing the – an earring at the time; and if that
earring's ripped out during the struggle, then it
could have the perpetrator's DNA on it." R.R.
Vol. 2 at 40.
HEB employee Bastrop Paolucci testified that Stites' work shirt, which
33
shirt County Clerk was found in the back of Fennell's truck
should be tested for DNA because "[i]f it was
removed from her during an assault, then it
would have the perpetrator's epithelial cells."
Paolucci also suggests testing the collar area,
the cuffs of the sleeves and the armpit areas of
the shirt. R.R. Vol. 2 at 41.
Knife and metal Bastrop Paolucci testified that the knife and metal
cover County Clerk cover found in Fennell's truck should be tested
for the killer's DNA because "the victim's
knife, if it's something that she would wear on
her belt, the belt was removed; so if the knife
is – is on the belt, it's also going to be handled
by the perpetrator." R.R. Vol. 2 at 41-42.
Pieces of plastic Bastrop Paolucci states that the shattered plastic cup
cup County Clerk found in Fennell's truck should be tested
because "there was a portion of that cup in the
driver's seat. It could be that that was broken
during the event and then the – it was handled
and pushed into the door pocket by the
perpetrator." R.R. Vol. 2 at 42.
Brown Bastrop Paolucci testified that the planner/organizer
planner/organizer County Clerk should be tested for the killer's DNA because
it was found in between the passenger and the
driver's seat in the cab of the truck. "That was
in an area that would have been close to the
perpetrator and the operator of the vehicle."
R.R. Vol. 2 at 44-45.
Single hair Attorney Paolucci stated that the hair found in the
removed from General brown planner should be tested because it
organizer/planner could belong to the perpetrator. R.R. Vol. 2 at
50.
Green lighter Attorney Paolucci recommends testing the lighter found
General in the truck because no cigarette butts were
found in the truck, making it possible that the
lighter could have been introduced by the
perpetrator. R.R. Vol. 2 at 51-52.
Metal box cutter Attorney Paolucci testified that the box cutter could
General have been handled by the perpetrator. R.R.
Vol. 2 at 52.
34
Pack of Big Red Attorney Paolucci testified that the gum pack could
gum General have been handled by the perpetrator.
R.R. Vol. 2 at 52.
(f) The State's Evidence Does Not Contradict Reed's Evidence.
The State put forth no evidence to rebut Mr. Reed's expert testimony that the
items Mr. Reed seeks to test contain biological evidence suitable for DNA testing,
or regarding the effect of potentially exculpatory DNA results. Nor did the State
contest chain of custody for the items within the possession of the Attorney
General's Office and the Department of Public Safety Crime Lab. Instead, the
State's three witnesses testified solely about the chain of custody of several items in
the custody of the Bastrop County Clerk's Office. The State's witnesses were:
Gerald Clough, an investigator for the Attorney General's Office; Etta Wiley, a
criminal deputy clerk for the Bastrop County Clerk's Office; and Lisa Tanner, an
assistant attorney general and the prosecutor at Mr. Reed's trial. R.R. Vol. 4 at
176, 190, 196.
With respect to items located at the office of the Bastrop County Clerk, Etta
Wiley, Criminal Deputy Clerk, testified that her job is to ensure the integrity of the
evidence; she confirmed that the evidence from Mr. Reed's case was kept locked at
all times. R.R. Vol. 4 at 195:9-196:19. Ms. Wiley further confirmed that she had
35
no cause to believe any of the evidence items had been materially altered,
tampered with, substituted, or replaced. Id. at 196:9-19.
Ms. Tanner, one of the prosecutors in Mr. Reed's case, testified that items
had been handled at trial without gloves. R.R. Vol. 4 at 199:1-200:8. And Mr.
Clough, an investigator for the Attorney General's Office, believed the clerk's
office improperly stored the evidence. R.R. Vol. 4 at 184:5-10. However, neither
Tanner nor Clough rebutted (nor were they qualified to rebut) Ms. Lankford's
expert testimony that such treatment did not preclude effective DNA testing or
destroy potentially exculpatory DNA information. R.R. Vol. 3 at 96:13-101:19;
C.R. 288-290.
At the conclusion of the Hearing, the District Court denied the motion with a
cursory bench ruling that stated, in its entirety:
All right. After reviewing all the documents that were presented,
those in court today, and all the evidence and arguments of counsel,
the Court finds that this motion was filed untimely and calls for
unreasonable delay, that there's no reasonable probability the
defendant would not have been convicted had the results been
available at the trial of the case. Your motion is denied.
R.R. Vol. 4 at 227:4-11. The District Court's cursory one-sentence ruling thus
included no findings involving credibility or motive determinations, nor any
comment upon the evidence presented during the day-long Hearing.
On December 12, 2014, the District Court entered Findings of Fact and
Conclusions of Law drafted entirely by the State, which were submitted to the
36
court ex parte and which contained no citations to the record. Notably, the State's
draft – which was adopted by the court verbatim, including a typographical error
incorrectly reciting one of the statutory elements – contains thirteen paragraphs
regarding Mr. Reed's purported "delay" in filing the DNA Motion.16 Most of these
"findings" regarding delay were not based on any evidence presented at the
Hearing. Moreover, the State's draft contained no findings regarding the
unrebutted expert testimony Mr. Reed presented at the hearing regarding the
suitability of the evidence at issue to DNA testing, the likelihood that
presumptively favorable testing results would have resulted in Mr. Reed's acquittal,
the chain of custody, Reed's extensive efforts to reach an agreement for consensual
DNA testing before filing his motion, or the delays occasioned by the State's
repeated extensions of deadlines and briefing schedules. The District Court made
no changes to the State's proposed findings before signing it.
The State did not rebut any of the testimony put forth by Mr. Reed at the
DNA Motion hearing regarding the probative nature of the items Reed seeks to
have tested. Nonetheless, the Findings of Facts adopted by the District Court
stated that the exculpatory results of the requested DNA testing would be
undermined because some unspecified items were handled by court personnel,
certain individuals in the Attorney General's office and jurors. (C.R. 347-348, ¶
16
Given the sheer brevity of the District Court's bench ruling, the level of detail contained in
the state-prepared findings is remarkable.
37
24c) These findings are unsupported; the State presented no scientific expert
testimony to refute the testimony of Mr. Reed's well-qualified experts that that
effective DNA testing was possible, and that such items would not lose their
probative value despite having been touched subsequent to their being taken into
evidence.
IV.
ARGUMENT
A. Legal Standards and Standard of Review.
1. Chapter 64 Requirements.
Under Chapter 64, a convicted person may seek DNA testing of any
"biological evidence that may be suitable for DNA testing" including "blood,
semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, or bodily
fluids." See Tex. Crim. Proc. Code Ann. art. 64.01(a)(1) (West Supp. 2014). Such
evidence must have been secured in relation to the challenged offense, in the
State's possession at trial, and either not previously DNA-tested or capable of being
tested with newer techniques that may yield "more accurate and probative" results.
Id. at art. 64.01(b). DNA testing is mandatory if:
1. the evidence "exists in a condition making DNA testing possible" and
"has been subjected to a chain of custody" sufficient to show that it
has not been substituted, tampered with, replaced, or materially
altered;
2. identity was an issue at trial;
38
3. the movant more than likely "would not have been convicted if
exculpatory [DNA] results had been obtained"; and
4. the request for DNA testing is probably "not made to unreasonably
delay the execution of sentence or administration of justice."
Id. at art. 64.03(a)(1), (2) (West Supp. 2014).
There is no burden of proof regarding the evidence's chain of custody,
testable condition, and whether identity was at issue; rather, the court must simply
make findings on these questions. Cf. Prystash v. State, 3 S.W.3d 522, 535 (Tex.
Crim. App. 1999) (en banc) (no burden of proof on mitigation special issue in
capital cases). The movant bears the burden to prove by a preponderance of the
evidence (i.e. 51%) that favorable DNA results could have prevented his
conviction, and his lack of intent to cause unreasonable delay. See Routier v. State,
273 S.W.3d 241, 257 (Tex. Crim. App. 2008). However, the movant does not have
to show that the test results are actually exculpatory; to the contrary, exculpatory
test results (including the identification of a known alternate suspect as the source
of the DNA, and the possibility of finding redundant DNA profiles on separate
items of evidence) must be presumed. See In re Morton, 326 S.W.3d 634, 641
(Tex. App.—Austin 2010, no pet.). The Court must consider all possible
exculpatory results, including identification of a known offender through
39
comparison of a DNA profile to the CODIS database. See Routier, 273 S.W.3d at
259; see also Tex. Crim. Proc. Code Ann. art. 64.035 (West Supp. 2014).17
2. Bifurcated Standard Of Review On Appeal.
Appellate review of an order granting or denying Chapter 64 relief is
governed by a bifurcated standard of review. Findings of historical fact, credibility
and demeanor are entitled to substantial deference on appeal, but all other issues,
including the ultimate question of whether the disposition below was correct, are
reviewed de novo. Green v. State, 100 S.W.3d 344, 344 (Tex. App. —San Antonio
2002, pet. ref'd) (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002)).
In Smith v. State, this Court made clear that when a trial court makes
findings on a Chapter 64 motion without a hearing, and such findings are based
upon the record of the movant's underlying criminal trial and affidavits, such
findings do not involve assessments of the credibility and demeanor of live
witnesses, and, therefore, are not entitled to deference on appeal:
While we defer to the trial court's determination of issues of historical
fact and application of law to fact issues that turn on the credibility
and demeanor of the witnesses, there were no such issues in this case
since there were no witnesses at the hearing and the trial record and
affidavit of Appellant are the only sources of information supporting
the motion. As a result, the trial court is in no better position and we
will review the issues de novo.
17
As this Court has acknowledged, the 2011 amendments to Chapter 64, including the new
requirement to compare DNA results to the CODIS database, warrant a reexamination of
prior interpretations of the statute. See Holberg v. State, 425 S.W.3d 282, 286 n.24 (Tex.
Crim. App. 2014).
40
Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005); see also Campos v.
State, No. 01-14-00167-CR, 2014 WL 7204966, at *2 (Tex. App.—Houston, Dec.
18, 2014, no pet.) (mem. op., not designated for publication). Although the
District Court conducted a hearing in this case, nearly all of the court's findings
concerning whether Mr. Reed intended to cause unreasonable delay and whether
exculpatory test results might have prevented his conviction were expressly
derived from the underlying record of Reed's criminal trial and post-conviction
proceedings. C.R. at 344-48, ¶¶ 23-24c. None of these 18 numbered paragraphs in
the Findings and Conclusions are based upon the testimony of any of the five
witnesses who testified at the Hearing. Accordingly, the de novo standard of
review applies.
B. The District Court Wrongly Concluded That Mr. Reed Failed To Prove
That Exculpatory DNA Test Results Likely Would Have Resulted In
His Acquittal. (Issue 1).
At the conclusion of the Hearing, the District Court ruled that "that there's
no reasonable probability the defendant would not have been convicted had the
results been available at the trial of the case." R.R. Vol. 4 at 227:8-11. The court's
one-line verbal conclusion contains no findings of fact, identifies no relevant
evidence, and reflects a fundamental misunderstanding and misapplication of the
statutory test.
41
The State's subsequent proposed written Findings and Conclusions, which
the District Court adopted in toto, included more details. C.R. 342-348. The
written Findings and Conclusions include an "umbrella" finding, C.R. 347, ¶ 24,
stating that Mr. Reed "failed to prove by a preponderance of the evidence that he
would not have been convicted but for exculpatory results from DNA testing" and
several subsidiary paragraphs of findings. C.R. 347-48, ¶¶ 24a-24c.
The District Court's written Findings and Conclusions continue to misapply
the applicable standard, in at least two critical ways. First, the District Court
incorrectly weighed the "strength" of the State's case against Mr. Reed. It adopted
and assumed the correctness of the State's theory at trial that Ms. Stites was killed
shortly after having sex with Reed, as shown by the "intactness" of three of Reed's
sperm found in her body, because human sperm ostensibly remain intact in such
conditions for no more than 24 hours. However, the court failed to consider the
possibility that DNA testing would prove that this trial theory was incorrect.
Experts, including Dr. Bayardo, the State's own chief expert at trial, all now agree
that the State's "intactness" timing theory is wrong because, as a matter of
established science, human sperm can remain intact for several days in such
conditions. These sworn expert statements were included in Mr. Reed's testing
motion but ignored by the District Court. C.R. 118-142. The District Court's
42
written findings on these and related points are simply wrong, contradicted by the
record, and should be reversed.
Second, the District Court erred by applying an improperly narrowed
definition of “exculpatory result” which ignored the unique power of forensic
DNA testing to actually identify the person whose biological material is detected
and instead considered only a scenario in which Reed was excluded as the source
of individual samples of biological material. The District Court failed to apply the
required statutory presumption that DNA testing of the belt, name tag, victim's
clothing and other specified items of evidence at issue would show the presence of
the DNA of an alternative known suspect, and the absence of Mr. Reed's DNA, on
each item. See Routier, 273 S.W.3d at 257 (statute requires court to assume DNA
testing of evidence at issue will yield exculpatory results, and then evaluate
"whether there is a greater than 50% chance that the appellant's jury would not
have convicted her had it been aware of those presumptively favorable test
results"). This error of law is reviewed de novo and should be reversed.
Instead of following Routier, the District Court accepted the State's crafted
"futility" test. The court concluded that because the jury was aware that Mr.
Reed's "genetic profile" did not match three identified items of evidence, testing
any of the evidence at issue could not exculpate him. This is the wrong test.
Moreover, the District Court simply ignored the fact that the vast majority of the
43
evidence Reed seeks to test is evidence which was handled by the perpetrator and,
like the belt and the name tag, but never subjected to DNA testing. DNA test
results showing Reed's absence from such items, and the repeat presence of a third
party, are more than likely to have resulted in Reed's acquittal.
1. The State's Case Against Mr. Reed Was Highly
Circumstantial, Based Upon Now-Debunked Junk Science
And Tenuous Inferences, And Did Not Constitute A
"Mountain Of Evidence" By Any Measure.
The District Court accepted the State's characterization that its "case on
guilt/innocence was strong." C.R. 347 ¶ 24a. As an initial matter, the "strength" of
the State's evidence is relevant to the weighing of the exculpatory value to be
attributed to DNA test results showing the presence of a third party's DNA at the
crime scenes. The presence of a "mountain" of evidence supporting guilt can
reduce the exculpatory significance of third party DNA. State v. Swearingen, 424
S.W.3d 32, 38 (Tex. Crim. App. 2014) (observing that exculpatory value of third-
party DNA at crime scene would not overcome "mountain of evidence" against
defendant and denying testing); Qadir v. State, No. 02–13–00308–C.R., 2014 WL
1389545, at *4-5 (Tex.App.—Fort Worth Apr. 10, 2014, no. pet.) (mem. op., not
designated for publication) (rejecting possibility of exculpatory effects of possible
presence of third party DNA at crime scene where "substantial evidence"
supported conviction).
44
On the other hand, when the State's case on guilt is not compelling (i.e., less
than overwhelming), the presence of a third party's DNA at the crime scene may be
sufficiently exculpatory as to justify DNA testing. See Fain v. State, 2014 WL
6840282, at *6 (Tex.App.—Fort Worth 2014, pet. filed) (mem. op., not designated
for publication) (reversing district court and ordering DNA testing of items that
could show presence of third party at crime scene where "evidence of Appellant's
guilt was far from overwhelming"); Routier, 273 S.W.3d at 259 (because "the
State's theory [of movant's guilt was] hardly unassailable[,]" presence of third
party DNA at crime scene would support movant's intruder theory and "could
readily have tipped the jury's verdict in the appellant's favor[;]" vacating denial of
testing motion).
As demonstrated below, the District Court's conclusion that the State had a
"strong" case against Mr. Reed was premised upon findings that are questionable
and, in some instances, flatly wrong. The applicable standard of review is de novo.
See State v. Rivera, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); see also Routier,
273 S.W. 3d at 257; Smith, 165 S.W.3d at 363. The District Court's findings on
these points are thus entitled to no deference and, because they are wrong or highly
questionable, should be reversed.18 See Routier, 273 S.W.3d at 259-260. As a
18
Paragraph 24a of the District Court's Findings and Conclusions states as follows:
The State's case on guilt-innocence was strong – Movant's DNA was found both on and
inside the victim, which demonstrated presence; the intactness of Movant's sperm inside the
45
result, the District Court should have considered that DNA test results that
demonstrate the presence of third party DNA at the crime scenes as sufficiently
exculpatory evidence as to support an acquittal at trial, justifying DNA testing in
this case. See Fain, 2014 WL 6840282, at *7; Routier, 273 S.W.3d at 259;
Esparza v. State, 282 S.W. 3d 913, 921-22 (Tex. Crim. App. 2009).
2. The Circumstantial Evidence Cited By The District Court
Does Not Support Its Findings.
The District Court found that the State's case against Mr. Reed was "strong"
partly based on two items of highly suspect circumstantial evidence: (i) the fact
that Reed "matched the height of someone who would have fit the adjusted seat in
the victim's truck" (C.R. 347, ¶ 24a); and (ii) the finding that "Movant frequented
the area of the victim's disappearance at the time the victim disappeared." The
court's characterization of these findings as "strong" evidence of Reed's guilt is
unwarranted and both ignores and mischaracterizes contrary record evidence.
First, there is no evidence supporting the reliability of the State’s "seat
adjustment/mirror test” of height. The record is silent as to whether Fennell, could
victim's vaginal cavity, the perimortem injuries to the victim's anus, Movant's saliva on the
victim's breasts after she took a shower the evening before her murder, and the small amount
of semen in the victim's panties demonstrated sexual assault contemporaneous with murder;
the peri-mortem injury to the victim's anus the obvious signs of sexual assault – the victim's
bunched up panties, a broken pants zipper, partially unclothed, bruises to the arms, torso and
head of the victim – demonstrated lack of consent; and additional evidence indicated that
Movant frequented the area of the victim's disappearance at the time the victim disappeared
and the Movant matched the height of someone who would have fit the adjusted seat in the
victim's truck. C.R. 367, ¶ 24a.
46
have seen through the mirror or if differences in posture could have affected
visibility through the mirror. And even were this Court to entertain the absurd
notion of resting a capital murder conviction on speculation arising from the
adjustment of a seat and rear view mirror, three of Fennell's friends and fellow
police officers – David Hall, Ed Salmela, and Curtis Davis – were each at least six
feet tall.19 C.R. 318; App. 22. Two of these persons – Hall and Salmela – were
likely present at Bluebonnet Road where Stites' body was dumped, according to
DNA tests conducted on a beer can found near her body. See supra at 12.20 By
contrast, no evidence was found that Reed was at that location (or anywhere near
the truck).21 Plainly, the seat positioning in Fennell's truck is just as consistent
with the corroborated presence of Fennell's cohort David Hall as it is with the
uncorroborated presence of Reed, and is therefore far from "strong" evidence of
Reed's guilt.
Second, no witnesses testified as to the location where Stites actually
"disappeared" or to having seen Reed at such time. All the State showed at trial
19
See Petition for Writ of Habeas Corpus, p. 10 in Ex Parte Reed, WR-50, 961-04 (Tex. Crim.
App. 2003)
20
The presence of Officers Hall and Salmela on Bluebonnet Road at the time Stite's body was
dumped could explain how Fennell returned to his apartment the morning Stites was
reported missing. It could also indicate that Hall and Salmela dumped the body without
Fennell, avoiding any need for Fennell to rush back to his apartment.
21
No physical evidence of any kind established Mr. Reed's presence in the truck or at the
Bluebonnet Road site – no eyewitness saw him, and no fingerprints, palm prints, DNA,
clothing, fibers, or other evidence from Mr. Reed were found at either location.
47
was that Stites commuted 30 miles to work on occasion via a route that passed
through Reed's Bastrop neighborhood (along with hundreds of other people) where
he was known to walk. App. 16. However, new scientific evidence presented in
Reed’s recently filed habeas application demonstrates that Ms. Stites was murdered
hours before she would have left Giddings to go to work. This, too, is far from
"strong" evidence of guilt.
3. The District Court's Finding Regarding "Presence" Is
Ambiguous And Should Either Be Clarified Or Reversed.
The District Court's finding of Mr. Reed's "presence" (based upon DNA
taken from Ms. Stites' body) is ambiguous. "Presence" may have been intended to
mean that Mr. Reed had sexual contact with Ms. Stites at an unspecified prior point
in time. If that is what the court meant, this finding is not disputed.
If, however, the District Court intended "presence" to mean that Mr. Reed
was present at one of the crime scenes at the time of Ms. Stites' death, the finding is
clearly wrongful and should be reversed. The record of Mr. Reed's case is replete
with sworn expert declarations adduced during Mr. Reed's habeas proceedings
conclusively demonstrating that the State's timing theory is not correct because
sperm can remain intact in a woman's vagina for three days or more after sex.22
22
The District Court's Findings and Conclusions state that they are based upon consideration
of "the record in this [Mr. Reed's] case." C.R. 342. Consideration of the trial and post-
conviction record is permitted under the doctrine of judicial notice. Routier v. State, 273
S.W.3d 241, 244 n.2 (Tex. Crim. App. 2008). As in the Routier case, District Judge Doug
Shaver was not the judge that presided over Mr. Reed's trial, and his reference to
48
C.R. 119-42 Indeed, even the State's own chief witness on this point at trial,
medical examiner Dr. Roberto Bayardo, agrees. In his sworn habeas declaration,
Dr. Bayardo disavows the theory that the time of Stites' death was at or shortly
after the time when she and Reed had sex. C.R. 120. And, as noted above, no
physical evidence of any kind placed Mr. Reed at either crime scene at any point in
time. The District Court's finding of "presence" thus is utterly ambiguous and
should be reversed or at least clarified to state that Mr. Reed had sexual contact
with Ms. Stites at an unspecified point in time before her death. In either case, the
finding does not constitute "strong" evidence against Mr. Reed.
4. The District Court's Finding Regarding Time Of Death
Was Based Upon Unreliable Testimony That Has Either
Been (i) Debunked By The Prosecution's Own Witness And
Other Experts, Or (ii) Was Given Solely By Jimmy Fennell,
Who Was Strongly Incentivized To Lie To Avoid
Prosecution.
The District Court found "strong" evidence that Mr. Reed was physically
present with Ms. Stites at the time of her death based in part upon "the intactness of
Movant's sperm inside the victim's vaginal cavity" and semen found in her panties.
C.R. 347, ¶ 24a. For the same reasons described in the preceding section, the
consideration of "the record" necessarily reflects judicial notice. Id. Such consideration is
further consistent with Chapter 64's requirements that a movant seeking DNA testing
provide affidavits alleging facts in support and that the movant establish by a preponderance
that favorable DNA test results likely would have resulted in an acquittal. See Tex. Code
Crim. Proc. arts. 64.01(a-1) and 64-03(a)(2)(A). Had the Legislature intended to confine
judicial consideration of facts in support of Chapter 64 relief to the trial court record, it
would have expressly done so.
49
State's contemporaneous timing theory is wrong as a matter of science, clearly
erroneous, and should be reversed.
The District Court's "timing" finding was also based upon a separate
temporal conclusion: that Mr. Reed's DNA, taken from saliva found on Ms. Stites'
breast, was deposited after she had showered the evening before her death. (C.R.
347, ¶ 24a) The District Court ignored the unreliability of this evidence. The only
evidence that Ms. Stites showered on April 22, 1996 ‒ and, thus, the only evidence
of the time when the saliva and DNA were deposited ‒ was Jimmy Fennell's
uncorroborated trial testimony. App. 8. As noted, Fennell was the lead suspect in
Stites' murder for more than a year, the person with the greatest possible incentive
to lie, and twice failed lie detector tests when asked by investigators about having
harmed Stacey Stites.23 See pp. 10-11, supra. These facts and others, as this
Court previously observed, give rise to a "healthy suspicion" that Fennell, not
Reed, was the perpetrator, and greatly undermine the District Court's weighing of
this evidence. This Court's de novo review of the District Court's findings should
therefore recognize these material infirmities in the State's evidence and reverse the
District Court's conclusion that the State's evidence on timing issues was "strong."
Cf. Routier, 273 S.W.3d at 259 (holding that the State's theory was "hardly
unassailable" and that the State's circumstantial evidence was "not so compelling
23
Not surprisingly, these facts are notably missing from the District Court's Findings and
Conclusions.
50
that the jury would more likely conclude beyond a reasonable doubt" appellant's
guilt); Fain, 2014 WL 6840282, at *1, *6 (discounting strength of state's case
based upon "purchased and suspect" testimony of jailhouse informant with
personal incentive to provide evidence of defendant's guilt and ordering DNA
testing).
5. The District Court's Finding Of Stites' Apparent Lack Of
Consent Does Not Implicate Mr. Reed.
The District Court also made a finding regarding the broken pants zipper,
appearance of Stites' underwear, and bruises to her body, characterizing them as
"strong" evidence that Stites did not consent to sex. C.R. 347, ¶ 24a. These
findings are misleading, and are not evidence of Reed's guilt ‒ no DNA,
fingerprint, or other evidence established that Reed (as opposed to someone else)
broke the zipper, pulled the underwear, or caused bruises. There is no dispute that
Ms. Stites did not consent to her strangulation or to the dragging of her body into
the brush. The bruises and condition of Stites’ clothing are simply evidence of the
murder. Moreover, as Dr. Bayardo and other experts have stated under oath, there
is no evidence that the sexual contact between Mr. Reed and Ms. Stites was non-
consensual. C.R. 121, ¶ 6, C.R. 127, ¶ 21.
Finally, the District Court's reliance on the condition of the pants and
underwear highlight the critical need in this case to subject these items to DNA
testing, precisely because (as the District Court implicitly recognized), the person
51
that killed Ms. Stites likely handled these items and left identifiable DNA on them.
See pp. 27-35, supra. Absent such readily available and definitive DNA test
results, it is clear error to characterize these items as "strong" evidence (or indeed
as any evidence) of Mr. Reed's guilt.
For these reasons, this Court should reverse the District Court's finding that
the State's case against Mr. Reed was "strong" and should hold that DNA test
results which might show the presence of DNA at the crime scenes that does not
belong to Mr. Reed is sufficiently exculpatory to justify DNA testing in this case.
6. The District Court Misapplied The Test For Determining
Whether Mr. Reed Proved By A Preponderance Of The
Evidence That Exculpatory DNA Test Results Likely Would
Have Resulted In His Acquittal
Under established law, the District Court was required to engage in a two-
step analysis to determine whether Mr. Reed had met his burden under Article
64.03(a)(1)(B) and (2)(A) to show that exculpatory DNA test results could have
changed the outcome at his trial.24 First, the court must presume that DNA testing
will yield favorable (i.e., exculpatory) results, and cannot weigh the likelihood that
favorable results will in fact be obtained if testing is authorized. See In re Morton,
326 S.W.3d 634, 641 (Tex. App.—Austin 2010, no pet.); Routier, 273 S.W.3d at
24
Approximately 50% of all DNA exonerations result in the identification of the real
perpetrator. See Innocence Project, Know the Cases, http://www.innocenceproject.org
/know/ (last visited February 14, 2015). 52 of the 325 cases in which DNA testing has
resulted in exoneration involved persons convicted in Texas, more than any other state. Id.
App. 23. (follow "National View" hyperlink).
52
257. Second, the court must then consider whether such presumptively favorable
results, if presented at trial, would have made it more likely than not (i.e., greater
than 50% likelihood) that a conviction would not have been obtained. See id.
7. The Statutory Presumption Of Exculpatory DNA Test
Results.
As this Court recognized not long ago in State v. Swearingen, the text of
Chapter 64 "does not set a standard for exculpatory results." 424 S.W.3d 32, 39
(Tex. Crim App. 2014). Cases from this Court and the Court of Appeals have
developed standards as to the meaning of the phrase. In a leading decision under
Chapter 64, Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007), this
Court examined the nature of exculpatory results for which Chapter 64 testing
should be granted. In Blacklock, the defendant had been convicted of aggravated
robbery and aggravated sexual assault stemming from the same incident. The
victim knew the defendant and identified him as her attacker. The State presented
vaginal smear analysis to show that a sexual assault had occurred, but DNA testing
of such evidence was inconclusive. Semen was also detected on the victim's
clothing, but the clothes were not subjected to DNA testing. Years later, Blacklock
later moved to DNA-test the clothing. This Court approved DNA testing and
explained that DNA tests of the clothing that showed the semen donor was not
Blacklock would be directly exculpatory, and that this was "precisely the situation
53
in which the Legislature intended to provide post-conviction DNA testing." 235
S.W.3d at 232-33.
Blacklock was a sexual assault case in which the defendant denied having
sex with the victim; as a result, DNA results that proved the semen was not his
would plainly exclude him as the perpetrator and, thus, be exculpatory. The Court
was not asked to consider and did not address whether DNA evidence showing the
presence of a third party at a crime scene could also be exculpatory.
In subsequent cases, courts have clarified that "exculpatory results" may
include results that identify the presence of third party DNA at a crime scene as
well as those which exclude the defendant. For example, in a subsequent sexual
assault case, the Court permitted DNA testing of a rape kit and the victim's
clothing despite eyewitness testimony identifying the defendant and circumstantial
evidence. Esparza v. State, 282 S.W.3d at 921-22. The Court rejected the State's
argument that DNA testing in that case showing the presence of third party DNA
could not be exculpatory. Id. at 922.
In Routier, the State argued that exculpatory DNA results could not
undermine the evidence of guilt presented at trial:
The State argues that the presence of an unknown person's DNA could
not have changed the jury's verdict because "it would not refute the
evidence physically linking appellant to the murders and to the
manipulation of the evidence at the scene. At a minimum, appellant
would undoubtedly have been convicted as a party."
54
273 S.W.3d at 259. The Court rejected the State's argument, and held that DNA
results implicating an unknown offender –intruder would corroborate the
defendant's contention that someone else committed the murder and thereby create
at least a 51% likelihood that the jury would not have convicted. Id.
In Fain v. State, the court reversed a decision denying testing where the
evidence sought to be tested could show third party DNA at the crime scene. The
Fain court observed that the state's evidence of guilt was "far from overwhelming,"
2014 WL 6840282, at *6, and, further explained:
Evidence that exculpates the innocent and ties the guilty to [the victim]
at the time of her death cannot be held to merely "muddy the waters."
If the contributor of the untested hair in [the victim's] hands is
identified, for the first time in this case, we would know whether Nix,
Appellant, or the unidentified male was with [the victim] at the time
of her death when she pulled hairs from his head. Additionally,
identifying DNA other than [the victim]'s in the blood on the
bathroom faucet handle would be compelling evidence of the identity
of the assailant, since the bleeding neck injury necessarily connects to
[the victim]'s death.
Id. at *8. These cases thus make clear that in a case like this one, where the
killer's identity is hotly contested, where there is no proverbial "mountain"
of evidence establishing the defendant's guilt, and where a sizable number of
evidence items were touched by the perpetrator but not tested, the court has
much greater discretion to treat DNA test results that may identify those
55
physically present with the victim at the time of death as verdict-changing
exculpatory evidence.25 See id.; Routier, 273 S.W.3d at 259-260.
It is also clear that the District Court was required to consider all
exculpatory results, including the identification of a known alternate suspect, and
the possibility of finding the same third party DNA on separate items of evidence
(i.e., a "redundant" DNA profile). See Routier, 273 S.W.3d at 259. Because
Chapter 64 now requires that the results of court-ordered DNA testing be cross-
referenced against state and federal DNA databases of known offenders, the
possibility that the perpetrator could be identified through such database
comparison as a known offender should also be considered. See Tex. Crim. Proc.
Code Ann. art. 64.035 (West Supp. 2014) (amended in September 2011).26 The
exculpatory ramifications of post-conviction DNA identification of a third party
perpetrator are well-documented in Texas law, and should inform this Court's
25
But see State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App. 2014) (noting in dicta that
prior decisions have "held 'exculpatory results' to mean only results 'excluding [the
convicted person] as the donor of this material" (alteration in original) (emphasis added)
(quoting Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App. 2007)). Swearingen
relied upon the Blacklock decision for this proposition, but as noted above, the question of
whether the presence of third party DNA at a crime scene could be viewed as exculpatory
for Chapter 64 purposes was not presented in Blacklock.
26
This Court previously rejected a similar argument in dicta while acknowledging that the
statute fails to set a standard for exculpatory results. See Swearingen, 424 S.W.3d at 39; see
also n. 24, supra. More recently, the Court has recognized the need to reexamine its prior
interpretations of Chapter 64 in light of the 2011 amendments. See Holberg v. State, 425
S.W.3d 282, 286 n.24 (Tex. Crim. App. 2014) (noting without deciding that "this
amendment to Article 64.01(a) [may] operate[] to lessen the burden on Chapter 64 movants
to prove the existence of biological material within the items they seek to have tested").
56
consideration in this case. See, e.g., Ex parte Michael Morton, No. AP-76663
(Tex. Crim. App. Oct. 12, 2011) (habeas relief granted where DNA results linked
third party offender to crime); Ex parte Phillips, No. AP-76010, 2008 WL
4417288, at *1 (Tex. Crim. App. Oct. 1, 2008) (per curiam) (not designated for
publication) (granting habeas relief after post-conviction DNA testing and
investigation showed someone else committed at least one of the offenses of which
defendant had been convicted); Ex parte Giles, No. AP-75712, 2007 WL
1776009, at *1 (Tex. Crim. App. June 20, 2007) (per curiam) (not designated for
publication) (granting habeas relief in rape case where post-conviction DNA
evidence and investigation indicated that someone other than defendant committed
crime); Ex parte Karage, No. AP-75253, 2005 WL 2374440, at *1 (Tex. Crim.
App. Sept. 28, 2005) (per curiam) (mem. op., not designated for publication)
(granting habeas relief after semen and spermatozoa recovered from victim
matched convicted offender in CODIS).
8. The District Court Failed To Apply The Required
Presumption That DNA Test Results Would Be
Exculpatory.
Had the District Court correctly applied the statutory presumption of
exculpatory DNA test results, it would have presumed that such testing would
reveal the DNA of an alternative known suspect, and the absence of Mr. Reed's
DNA, on the evidence Reed seeks to test (i.e., the belt used to strangle Ms. Stites,
57
the victim's name tag, her clothing, fingernail scrapings, and other evidence very
likely handled by her killer). Acting properly, the District Court would have then
asked whether the jury would likely have harbored a reasonable doubt as to Reed's
guilt in light of (i) the total absence of any evidence placing Reed in the truck or at
the Bluebonnet Road location, and (ii) the evidence showing that Reed and Stites
had sex before her mother last saw her. See Routier, 273 S.W.3d at 259 ("We
think that adding DNA evidence that would corroborate the appellant's account of
an unknown intruder into the evidentiary mix could readily have tipped the jury's
verdict in the appellant's favor."); Fain, 2014 WL 6840282, at *8 (holding that it
would be unlikely for a jury to convict appellant if DNA tested "excluded
Appellant as the donor"); In re Morton, 326 S.W.3d at 645 (finding a greater than
50% likelihood that jury would have had a reasonable doubt that movant was the
murderer if a bandana contained victim's blood and DNA of another person).
The District Court misapplied the statute. It failed to consider or identify
presumptively favorable DNA test results for any of these items of evidence, and
consequently failed to evaluate whether Mr. Reed had shown a likelihood of not
being convicted if such presumed results had been presented at trial. Instead, the
court substituted its own flawed "futility" analysis, assuming ‒ without any citation
to the underlying trial record ‒ that the jury had been made aware that Mr. Reed's
"genetic profile" was not found on three specified items (certain hairs and
58
fingerprints, see C.R. 347 ¶ 24b), and, inferentially, that DNA testing of these or
any other items could yield no further exculpatory results of value.
The District Court's substitute test was artificially constrained, and did not
conform to the well-established test articulated in this Court's jurisprudence. The
court's conclusion should therefore be reversed. See Routier, 273 S.W.3d at 259.
First, the court did not consider the exculpatory ramifications of the body of
evidence which Mr. Reed seeks to test as a whole. The jury was informed by the
State that Ms. Stites was strangled to death with the belt, and that her name tag was
placed upon her body after it was dressed and dragged. Had the jury been
informed that Reed's DNA was not present on any of those items ‒ and to be clear,
the jury was not so informed ‒ Reed 's showing that the jury likely would not have
convicted him probably would have been sufficient. The court should have
considered together the likely effect on the jury of favorable DNA results from the
belt, name tag, victim's clothing and other items of evidence that Reed seeks to
test.
Further, because the State's case was not "strong," as discussed infra, the
court should also have considered the effect on conviction if the jury had been
advised that a redundant DNA profile of a third party (either a known alternate
suspect, such as Fennell, Hall or Salmela, or another person) was found repeatedly
on items that were handled by her killer. Cf. R.R. Vol. 2 at 74-75; Fain, 2014 WL
59
6840282 at *8; Routier, 273 S.W.3d at 259. Even as to the three specified items
which the court did consider, it failed to consider the effect on the jury had those
items yielded a consistent redundant DNA profile of a known alternative suspect,
such as Fennell, Hall, or Salmela. The presence of any of their respective DNA on
the three items in question ‒ especially Hall, whose presence at the body location
was corroborated (but not explained) by his DNA taken from the beer can ‒ would
persuasively support Reed's claim of innocence.
Moreover, there is no question that the jury did not hear testimony that Mr.
Reed's DNA was absent from those materials; including, but not limited to, the
belt, the name tag, the victim's clothing, and the beer cans. The court's contrary
conclusion in Paragraph 24b that "the jury knew that many of the items Movant
seeks to test were not from him" is simply wrong as a matter of fact and should be
reversed. It is also unclear what the District Court's reference to Mr. Reed's
"genetic profile" was intended to convey. If the court intended the phrase to refer
to Reed's DNA, the finding is clearly erroneous, as it is undisputed that these items
were not DNA-tested.
C. The District Court's Conclusion That This Motion Was Brought For
The Purposes Of Delay Is Not Correct (Issue 2).
Mr. Reed presented evidence and argument to meet his statutory burden
under Article 64.03(a)(2)(B) to show that he did not intend to cause unreasonable
delay in the execution of sentence or administration of justice. Despite having
60
agreed to conduct some DNA testing of evidence, the State nonetheless devoted the
vast majority of its briefing and oral argument to this issue. The District Court
found that Mr. Reed "failed to prove by a preponderance of the evidence that his
Chapter 64 motion is not made to unreasonably delay the execution of sentence of
[sic] administration of justice."27 C.R. 344, ¶ 23. This umbrella finding was
followed by 13 individual subsidiary paragraphs listing the grounds upon which
the court's finding was based. C.R. 344-47, ¶¶ 23a-m. In fact, all but three of the
findings of fact centered around Reed's purported delay in filing the DNA Motion.
Id. As set forth below, the District Court's conclusion and subsidiary findings on
this issue are entitled to no deference on appeal, are plainly wrong, and should be
reversed.
27
The statute's text provides "execution of sentence or administration of justice." Tex. Crim.
Proc. Code Ann. art. 64.03(a)(2)(B) (West Supp. 2014) (emphasis added). The
typographical error noted was contained in the State's ex parte draft findings and
conclusions, which the District Court adopted without change. The problems resulting from
a trial court's verbatim adoption of one party's findings are well documented. See Anderson
v. City of Bessemer, 470 U.S. 564, 572 (1985) (criticizing "verbatim adoption" of proposed
findings, particularly "conclusory statements unsupported by citation to the record," noting
the "potential for overreaching and exaggeration" by the prevailing party, and evaluating
whether judge "uncritically accepted findings" entirely); In re Luhr Brothers, 157 F.3d 333,
338 (5th Cir. 1998) (noting that "near-verbatim recitals of the . . . proposed party's proposed
findings . . ., with minimal revision" should be approached with "'caution'" (citation
omitted)); Marine Shale Processors, Inc. v. U.S. Envt'l Prot. Agency, 81 F.3d 1371, 1386
(5th Cir. 1996) (discouraging practice of wholesale adoption of findings and conclusions:
"[w]e tolerate the occasional use of this device because of our trust that district courts will
closely examine the proposed findings and will carefully consider the objections and
arguments of the opposing party").
61
1. The Standard Of Review.
The standard of review of the District Court's Findings and Conclusions
regarding whether Mr. Reed intended to cause unreasonable delay under Article
64.03(a)(2)(B) is either the substantial deference standard or the de novo standard,
depending on whether the court's findings and conclusions were based upon
historic facts, determinations of the subjective credibility and motive of witnesses
(in which case the substantial deference standard applies), or upon facts that are
neither "historic" nor dependent upon the credibility or motive of witnesses
(subject to de novo review). See Skinner v. State, 122 S.W.3d 808, 811 (Tex.
Crim. App. 2003). Here, the District Court's findings concerning Mr. Reed's
ostensible intent to cause unreasonable delay were not based upon the credibility or
motive of Mr. Reed, any testifying witness or any historical facts relating to Ms.
Stites' murder. Instead, the court's findings all constitute inferences which the
court drew in error from its interpretation of the record of Mr. Reed's post-
conviction proceedings and the record in an entirely separate, unrelated action
involving another death row inmate, Larry Swearingen, who is also represented by
one of Reed's attorneys. The District Court's findings on this issue are therefore
subject to the de novo standard. See Smith v. State, 165 S.W.3d 361, 363 (Tex.
Crim. App. 2005) (because trial court is no better suited to interpret record than
appellate court, its record-based findings are reviewed de novo).
62
2. Mr. Reed's Motion Does Not Reflect An Intent To Cause
Unreasonable Delay In The Execution Of Sentence Or The
Administration Of Justice
Chapter 64 contains no deadline for the filing of a motion, and instead
requires the movant to show by a preponderance of the evidence that he does not
intend to "unreasonably delay the execution of sentence or administration of
justice." Tex. Crim. Proc. Code Ann. art. 64.03(a)(2)(B) (West Supp. 2014). The
statute does not require a movant to explain why he did not raise a claim earlier,
only that the claim was not made to unreasonably delay the execution of his
sentence. Id.; see also Wilson v. State, No. AP-76835, 2012 WL 3206219, at *4
(Tex. Crim. App. Aug. 7, 2012) (per curiam) (not designated for publication)
(explaining that defendant seeking DNA testing need not show why he did not
raise a claim earlier).
Chapter 64 does not provide explicit standards for determining whether
Reed met his burden. However, case law in capital cases demonstrates two clear
guideposts: (i) motions filed within a month or less of a scheduled execution date
are generally viewed as inadequate to meet the statutory burden; and (ii) motions
filed before an execution date is scheduled are generally adequate. For example, in
Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005), the Court found
that waiting to move for DNA testing until less than a month before an execution
date reflected an intent to cause unreasonable delay. The Court reached the same
63
conclusion in Brown v. State, No. AP-75469, 2006 WL 2069445, at *1 (Tex. Crim.
App. 2006) (per curiam) (mem. op., not designated for publication) (finding
unreasonable delay when movant filed DNA testing motion until less than one
month before scheduled execution). In Kutzner v. State, the movant waited to file
a DNA testing motion until a mere nine days before his execution date, which the
Court found to reflect an intent to unreasonably delay. 75 S.W.3d 427, 441-42
(Tex. Crim. App. 2002), superseded by statue, Tex. Crim. Proc. Code art. 64.03, as
stated in Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005). Cases at the
other end of the spectrum include Holberg v. State, in which the State conceded
that the motion was not filed to cause unreasonable delay where the movant sought
DNA testing at a time when no execution date was scheduled. 425 S.W.3d 282,
284 n.12 (Tex. Crim. App. 2014). Similarly, in Skinner v. State, the Court
overruled a district court's findings of unreasonable delay when the defendant
sought DNA testing before a set execution date and while his federal habeas
petition was pending. 122 S.W.3d 808, 811 (Tex. Crim. App. 2003).
Mr. Reed's initial request for DNA testing was made in 1999, during his
state habeas proceedings, before Chapter 64 was enacted. App. 1. His current
requests for DNA testing began over a year ago, with a January 2014 letter to the
State requesting agreed testing. The letter was sent three months before the State
moved in April 2014 to fix an execution date, and 14 months before Mr. Reed's
64
currently scheduled March 5, 2015 execution date. After the possibility of agreed
testing was exhausted, Mr. Reed filed his DNA testing motion in July 2014. The
motion was filed before the District Court fixed his execution date, and eight
months before his currently scheduled execution date. Mr. Reed's DNA testing
motion and letter request thus objectively satisfy the two clear guideposts
embodied in this Court's precedents ‒ namely, that the request made be made at
least thirty days before a scheduled execution date, and preferably before such date
is scheduled. The District Court's finding to the contrary is in error and should be
reversed.
3. Mr. Reed Was Not Required To Provide A Time Estimate
For Testing (¶ 23a).
The District Court found that Mr. Reed's failure to provide "any information
regarding time estimates" for the testing sought was independently sufficient to
conclude that he failed to meet his burden to show the absence of an intent to cause
unreasonable delay. The court stated "[t]his alone, the Court believes, is sufficient
to show Movant has failed in his burden to show that his request is not made to
unreasonably delay his execution." C.R. 344, ¶ 23a.
This subsidiary finding apparently was based upon a mistaken impression
that Reed was required under the statute to provide an estimate of the likely
duration of the movant's requested DNA testing. The District Court cited no
authority in support, and Chapter 64 contains no such estimation requirement,
65
either express or implicit.28 The District Court's finding regarding failure to
provide a time estimate was based upon a misreading of the statute, is entitled to
no deference on appeal, and should therefore be reversed.
Mr. Reed notes that the State did not even argue, in either its opposition
brief or at oral argument, that Chapter 64 obligates a movant to provide such a time
estimate ‒ presumably because, the State, having agreed to DNA testing on certain
items on a consensual basis, was already well aware of the time that such testing
might take, and had so represented to the District Court. At the July 14, 2014
hearing, the State conceded that with respect to the agreed-upon items to be tested:
"We believe the DNA testing will be completed within a reasonable time frame to
consider those results." R.R. Vol. 1 at 14:3-4. Accordingly, the only findings
supported by the record on this issue are that the length of time that Mr. Reed's
requested DNA testing would likely take was "a reasonable time," and that the
State was well aware of it. This Court can easily infer that, had the State consented
to testing within a reasonable timeframe of Reed’s January 2014 request, all such
testing would be completed by now.
28
To the knowledge of Mr. Reed's undersigned counsel, no court has held that a time estimate
requirement should be implied from the statute.
66
4. Mr. Reed Should Not Be Faulted For Filing His DNA
Testing Motion On The Date The Court Scheduled His
Execution (¶ 23b).
The District Court faulted Mr. Reed for filing his DNA testing motion on
July 14, 2014, the same day the court scheduled Mr. Reed's execution. C.R. 344, ¶
23b. The court characterized the timing of Reed's filing "as a designed tactic to
delay the setting of Movant's execution date." Id. The court's findings are entitled
to no deference and should be reversed for at least four reasons.
First, the District Court’s finding misapplies the standard. The Legislature
expressly recognized the need to delay executions where proceedings on a DNA
motion are necessary. See Tex. Cod Crim. Proc. Ar. 43.141(d). The question is
not whether there is an intent to delay execution, but whether that intent is
“unreasonable.” See id. Art. 64.03(a)(2)(B). Here, Reed filed his motion before
the hearing held that day, not after, as the court noted elsewhere in its opinion.
C.R. 343, ¶ 9. Moreover, Reed's counsel argued at the hearing that day against the
scheduling of an execution date in light of both the State's agreement to conduct
limited testing on several items, and Mr. Reed's request to conduct DNA testing on
a larger group. R.R. Vol. 1 at 5. Accordingly, it was error for the court to treat the
filing of the motion as a reaction to the court's subsequent ruling on the State's
motion.
67
Second, the District Court erred by drawing a negative inference about the
putative intent of Mr. Reed's motion based on its timing without also considering
the substantial contrary evidence in the record before it ‒ namely, Reed's efforts in
1999 to obtain DNA testing, and his long-standing more recent prior efforts to
reach a consensual agreement with the State to conduct DNA testing over the prior
seven months. As the record shows, Reed requested the State's agreement to
conduct DNA testing on the murder weapon and other items likely handled by the
killer in a letter dated January 13, 2014. C.R. 108-117. Those efforts, which were
hampered by months of foot-dragging by the State, eventually culminated in a
consensual agreement to conduct DNA testing on certain items.29 The District
Court's Findings and Conclusions - - again, which were drafted by the State and
submitted ex parte - - omit any meaningful discussion of Reed's prior letter
request30 and the substantial delays in the State's response thereto, and only briefly
note in passing the existence of the parties' agreement to conduct DNA testing on
certain items. C.R. 346, ¶ 23k; C.R. 347, ¶ 23m.
The court's findings also fail to note the State's sudden insistence on fixing
Mr. Reed's execution date. The State filed its execution date motion on April 8,
2014, three months after Mr. Reed's DNA testing letter, and during the period
29
Notably, the subset of items upon which the State ultimately agreed to permit DNA testing
do not include the murder weapon or any of the clothing or other items which were likely
handled by the killer. See p. 7, infra.
30
See C.R. 344, ¶ 23d (noting letter sent to State after 5th Circuit issued initial ruling).
68
when the State was simultaneously dragging its feet in responding to him. The
State eventually agreed that DNA testing should occur, but refused to withdraw or
even postpone its execution date motion. Mr. Reed should not be penalized with a
negative inference based upon the District Court's failure to consider these
undisputed record facts and his extensive efforts to reach an agreement with the
State before filing his DNA motion ‒ indeed, to do otherwise contravenes the
policy underlying Chapter 64, and would encourage convicted persons in the future
to file testing motions in the courts without reaching out to the State at all, for fear
that such efforts will be held against them.
Finally, the District Court's finding disregards Mr. Reed's efforts in 1999 to
obtain DNA testing of the belt and tee shirt. See App. 1 (motion requesting
testing), App. 2 (State's opposition), and App. 3 (order denying motion). Thus, Mr.
Reed's current DNA testing motion is merely the most recent iteration of a 15-year
effort to prove innocence through DNA testing of the murder weapon and other
key evidence in the case, and cannot be viewed as a "designed tactic to delay the
setting of Movant's execution date."
The record demonstrates that the District Court's finding is clearly
erroneous. This Court should find instead that Mr. Reed met his burden to
demonstrate by a preponderance of the evidence that the filing of his DNA motion
69
on July 14, 2014 was not intended to cause unreasonable delay, in the execution of
sentence or administration of justice.
5. The legal basis for the DNA testing requested in this motion
was not available until 2011 (¶ 23c).
In its Findings and Conclusions, the District Court found that there were no
legal or factual impediments to Mr. Reed's ability to file a Chapter 64 motion at
any time, including during the ten-year period from Chapter 64's initial enactment
through the date of the 2011 amendments, and the period after such amendments.
(C.R. 344, ¶ 23c). It also found that Mr. Reed had been represented by counsel
during such time. Id. The Court concluded that Mr. Reed's failure to file his
Chapter 64 motion during such period supported a finding of intent to delay.
These findings were in error. As a threshold matter, the statute does not
require Mr. Reed to prove that he could not have filed a DNA testing motion
sooner than he did. Moreover, the District Court did not consider or discuss the
scope of Chapter 64 as enacted or the effect of the 2011 amendments in light of the
nature of Mr. Reed's DNA testing motion, which focuses on the presence of
"touch" DNA on items handled by Ms. Stites' killer. Prior to the date of the 2011
amendments, a movant could not move to test items handled by a perpetrator for
"touch" DNA unless prior testing or analysis had already established the presence
of blood, semen, hair, saliva, skin tissues or cells, bone, or bodily fluid. See
Holberg, 425 S.W.3d at 286 n.24 (discussing Swearingen v. State, 303 S.W.3d
70
728, 732 (Tex. Crim. App. 2010) and Routier, 272 S.W.3d at 250). The 2011
amendments were enacted with an eye toward the undeniable advancements made
in forensic DNA testing science, and, as explained below, now permit a movant to
seek DNA testing of perpetrator-handled items. Thus, it was error for the District
Court to find that there was no legal impediment to Mr. Reed's ability to file a
Chapter 64 motion.
6. The 2011 Amendments To Chapter 64
In 2011, the Legislature amended Chapter 64 to expand the right to post-
conviction DNA testing to include precisely the sort of "touch" DNA testing that is
the subject of Mr. Reed's motion. Mr. Reed thus was obligated to show that the
evidence that he seeks to test contains "biological material." Tex. Crim. Proc.
Code Ann. art. 64.01(a)(1) (West Supp. 2014). The 2011 amendments
substantially broadened the definition to include the italicized language below:
an item that is in possession of the state and that contains blood,
semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone,
bodily fluids, or other identifiable biological evidence that may be
suitable for forensic DNA testing.
Id. (emphasis added). By including the phrase, "or other identifiable biological
evidence that may be suitable for forensic testing," the Legislature has eliminated
any strict requirement that a defendant prove the existence of invisible biological
material such as skin cells before being afforded DNA testing.
71
Had the Legislature wanted to limit such testing to already identified
biological material, it would have written the 2011 amendments to refer to
"identified" (not "identifiable") biological evidence that "is" (not "may be")
suitable for testing, but it did not do so. The legislative history of the 2011
amendments confirms this point. Prior to the 2011 amendments to Chapter 64, this
Court required a movant seeking post-conviction DNA testing to prove that the
evidence contained "biological material" as a prerequisite to obtaining testing. See
Swearingen v. State, 303 S.W.3d 728, 733 (Tex. Crim. App. 2010) ("The record is
void of any concrete evidence that biological material existed on the evidence
sought to be tested."). This Court noted that under its construction of the statute,
requiring a movant to prove the existence of even microscopic amounts of
biological material prior to testing could lead to instances in which probative DNA
testing is denied. Id. at 732. The Court held that this issue was for the Legislature
to address. Id. The Court likewise did not consider submission of DNA test results
to the CODIS DNA database because Chapter 64 as it existed in 2010 did not
provide for such relief. See id. at 736 (noting that Chapter 64 provides for testing
and retesting of evidence, not for database entry).
The 82nd Legislature amended Chapter 64 in two important ways. First, the
Legislature added a broad definition of "biological material" that included "skin
cells," "fingernail scrapings," and a catch-all provision for "other identifiable
72
biological material that may be suitable for forensic DNA testing." Tex. Crim.
Proc. Code Ann. art. 64.01(a)(1) (West Supp. 2014). Written testimony provided
to both the House and Senate Committees specifically cited the need to address this
Court's holdings in Swearingen that (1) a movant must prove the existence of
biological material and (2) that Chapter 64 does not provide for submission of
DNA profiles to the CODIS database, and urged expansion of the definition of
"biological material" in light of the Swearingen opinion:
"Biological material" and advanced DNA technology.
Art. 64.01 should also be amended to clarify the definition of
"biological material" that may be subject to an order for DNA testing
(a term that is currently undefined, but which should include a wide
array of evidence that may yield exculpatory DNA results).
The need for this amendment arises from the Court of Criminal
Appeal's (CCA) opinions in Swearingen v. State, 303 S.W.3d 728
(Tex. Crim. App. 2010) and Routier v. State, 273 S.W.3d 241 (Tex.
Crim. App. 2008). In each case, the CCA narrowly interpreted
"biological material" to deny DNA testing. For example, among other
things, Swearingen sought to test fingernail clippings, a ligature, and
contact DNA from the victim's clothing. The trial court denied the
testing, in part, because Swearingen could not show that these items
contained biological material suitable for DNA testing. However, in
doing so, the CCA recognized that its narrow interpretation of
biological material might "lead to the deprivation of DNA testing in
the rare case simply because of the inability to ascertain whether or
not biological material exists." Swearingen at 732. The CCA
recognized that while its hands were tied, it invited the legislature to
correct this glitch in the statute by providing a definition of
"biological material."
Clarifying amendment to Art. 64.01 would reflect the reality of
how biological evidence is collected and DNA testing is performed.
For example, it is precisely because fingernail clippings often contain
73
DNA from perpetrators that they are routinely collected from victims
after violent crimes. Indeed, fingernail clippings are collected even
without knowing in advance that they definitively contain skin cells or
other DNA from the perpetrator. It is only after the DNA testing is
performed that the full probative value of the fingernail clippings is
known. The same analysis is true for ligatures.
Hearing on S.B. 122 Before Senate Crim. Justice Comm., 82nd Leg., R.S. (March
22, 2011) (written testimony of the Innocence Project) (emphasis added); see also
Hearing on S.B. 122 Before Senate Crim. Justice Comm., 82nd Leg., R.S. (March
22, 2011) (oral testimony of Natalie Retzel, Chief Staff Attorney, Innocence
Project of Texas); Hearing on S.B. 122 Before House Crim. Jurisprudence Comm.,
82nd Leg., R.S. (May 10, 2011) (written testimony of the Innocence Project).
Likewise, the addition of the CODIS provision in 2011 following the rejection of
the right to such a comparison in the 2010 Swearingen opinion make it clear that
the Legislature intended to address the limited holding in that case. See id.
(Innocence Project testimony on CODIS provisions). There was little debate on
these popular amendments, and they passed the Senate unanimously and the House
by vote of 145 (yea)-4 (nay)-1 (present, not voting). See S.J. of Tex., 82nd Leg.
R.S. 955 (2011); H.J. of Tex., 82nd Leg., R.S. 4364 (2011).
These statutory responses became effective on September 1, 2011. The
expanded definition of "biological material" and the new CODIS provision clearly
provide Mr. Reed a new legal basis for his request for DNA testing. Because
74
Reed's last habeas application was filed before the September 1, 2011 effective
date of the amendments, the legal basis for his DNA testing motion was
"unavailable" as a matter of law, as explained below. The District Court's finding
to the contrary was legal error and should be reversed, along with its "umbrella"
finding that Reed failed to meet his preponderance burden to show a lack of intent
to cause unreasonable delay.
7. Mr. Reed Suffered From A Legal Impediment Prior To The
2011 Amendments.
A legal impediment to the assertion of a claim cannot constitute intent to
cause unreasonable delay, as this Court explained in relying upon the successive
application provision of the capital habeas statute. See Kutzner v. State, 75 S.W.3d
427, 442 (Tex. Crim. App. 2002) (citing section 5 of Tex. Crim. Proc. Code Ann.
art. 11.071), superseded by statue, Tex. Crim. Proc. Code art. 64.03, as stated in
Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005). Section 5 of article 11.071
allows for the filing of a successive habeas corpus application only where the new
claims brought were unavailable at the time the prior application was made. See
Tex. Crim. Proc. Code Ann. art. 11.071, § 5(a)(1) (West Supp. 2014). A claim is
defined as "unavailable" under section 5 if the legal basis for the claim was not yet
recognized at the time the prior application was filed. See id. § 5(d).
As discussed supra, the Legislature specifically broadened Chapter 64's
definition of "biological material" to include skin cells and fingernail scrapings in
75
2011. The Legislature also eliminated the "fault" provision from article 64.01. See
Appendix D (S.B. 122 Enrolled showing markup). And finally, the Legislature
also added a provision specifically requiring DNA Profiles to be compared to
CODIS during the 2011 session of the 82nd Legislature. 31 These statutory
responses to the denial of prior DNA testing in the Swearingen did not become
effective until September 1, 2011. And the expanded definition of "biological
material" and the new CODIS provision clearly and intentionally provide Mr. Reed
a new case legal basis for his request for DNA testing. Accordingly, before the
September 1, 2011 amendments to Chapter 64, the legal basis for Mr. Reed's DNA
motion was "unavailable." See Tex. Crim. Proc. Code Ann. art. 11.071, § 5(a), (d).
Accordingly, Mr. Reed's motion proceeding was not brought for the purposes of
delay. See Kutzner, 75 S.W.3d at 442.
8. The District Court's "Intent" Inferences Drawn From Mr.
Reed's Post-Conviction Proceedings Are In Error And
Should Be Reversed (¶¶ 23d-g, l-m)
The District Court identified several selected events from Mr. Reed's post-
conviction proceedings, and inferred that such events showed that Mr. Reed's
Chapter 64 Motion was made to unreasonably delay the execution of his sentence.
(C.R. 344-45, ¶¶ 23d-g). The District Court found the fact that Mr. Reed's first
31
During the legislative process, the Innocence Project told both the House and Senate
committees considering the amendments that the definition of "biological material" should
be broadened in light of the opinion in Swearingen. ROA 53-55.
76
request for DNA testing occurred shortly after the Fifth Circuit affirmed the denial
of his federal petition for writ of habeas corpus "diminishes Movant's case that his
present Chapter 64 motion was not filed for purposes of unreasonable delay." (Id. ¶
23d). Second, the court surmised a "purposeful attempt at delay" based on the fact
that Mr. Reed's counsel filed a Chapter 64 motion for another client, Mr.
Swearingen, before filing Mr. Reed's motion. (Id. ¶ 23e). Third, the court found
that prior rulings concerning the timeliness of certain of Mr. Reed's submissions
caused it to believe the Chapter 64 Motion is a "continuation" of "a dilatory and
piecemeal litigation strategy." (Id. ¶ 23f). Fourth, the District Court also found
that Mr. Reed oppositions to scheduling an execution date (all of which occurred
several months after he requested DNA testing) "works against him in proving that
he is not unreasonably attempting to delay is execution." (Id. ¶ 23g). Finally, the
Court observed that Mr. Reed had not yet filed additional motions for relief
pursuant to Articles 11.071 and 11.073, an act of perceived "procrastination" and
"another example of any attempt to unreasonably delay his execution." (Id. ¶ 23l).
As a threshold matter, the Court should review these findings de novo, as
they all are based upon the court's evaluation of selected items from the record of
Mr. Reed's post-conviction litigation, and the record of motions made by Mr.
Reed's counsel on behalf of a different client in an unrelated case. None of the
findings reflect credibility or motivation determinations based upon the testimony
77
of Mr. Reed or any witness that testified at the November 25, 2014 hearing. See
Smith v. State, 165 S.W. 3d 361, 363 (Tex. Crim. App. 2005) (lower court findings
based upon review of record are reviewed de novo).
Each of the foregoing findings suffer from a fundamental failure to
meaningfully connect the historical record of Mr. Reed's post-conviction
proceedings with an intent "to unreasonably delay the execution of sentence or
administration of justice." See Tex. Crim. Proc. Code Ann. art. 64.03(a)(2)(B)
(West Supp. 2014). Although the statute does not require Reed to explain why he
did not file a DNA testing motion sooner than he did, the more cogent inference
from the fact that Reed sought the State's consent to agree to DNA testing days
after the Fifth Circuit denied his petition for writ of habeas corpus and before he
moved for rehearing – more than a year ago – is that Reed and his counsel believed
that such testing could have, and should have, been completed before any
scheduled execution date, especially since the State had yet to move for setting of
an execution date. See Holberg, 425 S.W.3d at 284 & n.12 (State conceded that
the motion was not filed to cause unreasonable delay when DNA testing sought
before execution date scheduled); Skinner v. State, 122 S.W.3d 808, 811 (Tex.
Crim. App. 2003) (overruling district court's findings of unreasonable delay when
DNA testing sought before execution date set).
78
Similarly, Mr. Reed can hardly be blamed for opposing the setting of his
execution date in a capital case, for a crime he did not commit, especially when the
State's request to fix such date was made after Reed sought the State's agreement to
conduct DNA testing. Likewise, neither the timing of the filings of DNA motions
by Reed's counsel on behalf of another client in an unrelated case, nor the complex
post-conviction proceedings in this case, support a finding that Reed's own Chapter
64 Motion was filed for the purpose of unreasonably delaying his (at the time)
unscheduled execution. The State did not move to set Reed's execution date until
April 2014, three months after Reed asked for cooperative DNA testing. C.R. 34-
35. Moreover, the State dithered about for months before eventually rejecting the
majority of Mr. Reed's testing requests. The District Court's finding that Reed's
DNA request was designed to unreasonably delay execution of sentence is flatly
contradicted by the record and should be reversed.
In addition, that Mr. Reed had not yet filed an Article 11.071 or 11.073
motion at the time he sought DNA testing by motion can hardly count against him,
as the court's "finding" states. C.R. 346, ¶ 23l. The finding lacks record support
from the moving papers and hearing, and, in any event, whether or when Mr. Reed
filed an unrelated post-conviction motion based on new evidence (including that
recently provided by the State) is irrelevant to whether the intent of his January
79
2014 DNA request and subsequent motion was to unreasonably delay an execution
date that had yet to be scheduled.32
The statute requires the movant show by a preponderance of the evidence
that his request was not made to "unreasonably delay the execution of sentence."
Tex. Crim. Proc. Code Ann. art. 64.03(a)(2)(B). The facts stated by the District
Court in subparagraphs 23(d-f) of its Findings and Conclusions do not demonstrate
such an intent, and do not constitute a permissible statutory basis for denying Mr.
Reed's Chapter 64 Motion. See Wilson v. State, No. AP-76835, 2012 WL
3206219, at *4 (Tex. Crim. App. Aug. 7, 2012) (per curiam) (not designated for
publication) (statute does not require movant to show why he did not raise a claim
earlier).
9. Mr. Reed Provided Ample And Adequate Notice To The
State of the Items Which He Sought To Test (¶¶ 23h-j).
The District Court's eighth and ninth subsidiary findings of fact state that
Reed failed to enumerate certain specific items for which he sought testing until
the hearing on his DNA Motion. (C.R. 345-346, ¶¶ 23h-i). Thus, the findings
state, Reed unreasonably delayed in bringing his DNA motion because he never
explained or briefed the items to be tested and he has no excuse for not being more
32
Mr. Reed filed the referenced application for a writ of habeas corpus on February 13, 2015.
See App. 5.
80
specific in his briefing. The record demonstrates that these findings should be
reversed for at least three reasons.
First, Mr. Reed's DNA Motion provided precisely the level of specificity
contemplated by Chapter 64. See Tex. Crim. Proc. Code Ann. art. 64.01(b)
("motion may request forensic DNA testing only of evidence… secured in relation
to the offense that is the basis of the challenged conviction and was in the
possession of the state during the trial of the offense" and which meets certain
testing criteria). Reed's opening brief identified in its text at least 10 specific items
or categories of evidence to be tested, including the belt, Stites' clothing, hairs, the
name tag, the white tee shirt, items collected from near the truck, and samples
taken from Stites' body, among other specified items. C.R. 76-77. In addition, the
DNA Motion included as an incorporated exhibit the same list of over 30 specific
items for testing included in Reed's January 2014 pre-filing letter request to the
State. C.R. 115-17. This was direct, specific and unambiguous notice to the State
of the evidence that Reed sought to test. Indeed, the State's response contains a
detailed enumeration of the items the State believed were the subject of Reed's
request, thereby demonstrating that the State received and comprehended Reed's
request. C.R. 172-73.
Moreover, the State, for the first time in its response, provided complete
documentation of the evidence actually available for testing. The inventory of the
81
evidence from the Attorney General's Office – where the beer cans and other
important items from the truck are held – was produced for the first time to Reed in
the State's response on September 9, 2014. C.R. 222-24. The State was not in any
way prejudiced by the level of specificity Reed provided in his initial motion.33
The District Court's findings to the contrary are baseless and should be reversed.
Moreover, the information provided in Reed's DNA Motion was supplemented
through the testimony of Detective Paolucci at the hearing. He discussed more
than two dozen specific items of evidence to be tested. Cf. Dinkins v. State, 84
S.W.3d 639, 642 (Tex. Crim. App. 2002) (convicted person must do more than
merely assert chapter 64's requirements have been met). Indeed, the State
repeatedly objected to Paolucci's enumeration of specific items at the hearing, but
the State was overruled every time. R.R. Vol. 2 at 32. Such overruled objections
provide no support for the District Court's findings, and they should therefore be
reversed.
10. The District Court Erred In Finding That Reed Made
Redundant Testing Requests (¶¶ 23j- m).
The District Court made subsidiary findings to the effect that Mr. Reed
intended to cause delay by including items within his motion that were either in
33
The State's protests to the contrary are belied by the State's opposition to the motion, which
included a lengthy itemization of the items of evidence which the State understood to be at
issue. C.R. 172-73.
82
Reed's possession or that the State had already agreed to test. C.R. 346, ¶¶ 23j-m.
These findings are baseless.
First, paragraph 23j refers to the "State's evidence," a single paper exhibit
introduced by the State at the end of the DNA hearing after all testimony had been
heard, which in turn lists certain extracts located at Technical Associates
Laboratory. R.R. Vol. 4 at 205. There was no testimony provided regarding these
samples at the hearing or in any of the moving papers. The listed extracts are
primarily redundant of those that are being tested under the State's agreement, and
do not include the most probative items that were the subject of the hearing.
Moreover, the State expressly refused to conduct any agreed testing through the
Chapter 64 process, see C.R. 144-48; by doing so, the State deprived Reed of the
Court’s supervision of the process, the ability to seek a hearing on innocence, and
the right to mandatory DNA database comparison. See e.g., Tex. Code Crim. Proc.
Art. 64.035; 64-04. And most importantly, the potential to test the leftover scraps
from the defense’s 1998 DNA testing is no substitute for comprehensive DNA
testing of the relevant evidence discussed in this brief. The court's finding to the
contrary is simply unsupported.
Second, the court found that Reed intended to cause unreasonable delay
because he sought testing under Chapter 64 on items that the State has already
agreed to test. C.R. 366, ¶ 23k. This finding makes little sense; by the November
83
25 hearing, the items that were subject to agreement had already been determined.
To avoid any doubt, at the hearing, Reed's counsel withdrew on the record any
possibly duplicative requests to test items that the State had already agreed to.
R.R. Vol. 3 at 160. There was neither prejudice nor confusion on this point, and
the court's finding reflects a misunderstanding of the record facts, not evidence of
an intent to cause unreasonable delay.
This finding is also error for a second, more troubling reason. Absent
Chapter 64 relief, a convicted person has no independent legal right or ability to
cause DNA test results to be processed through state and federal DNA databases.
Although the State may do so at any time, a convicted person's legal right to access
such databases only arises upon entry of a District Court order directing DNA
testing to occur. Tex. Crim. Proc. Code Ann. art. 64.035 (West Supp. 2014).
Thus, the only mechanism by which a convicted person may seek database
comparison of DNA test results is to include the evidence at issue in a Chapter 64
motion, without regard to whether the evidence to be tested is in the current
possession of the State, the convicted person, or a third-party laboratory. It cannot
have been the intent of the Legislature to provide a convicted person with a right to
seek DNA testing of evidence regardless of its location, and a resulting right to
cause the results to be cross-checked against state and federal offender databases ‒
a right which only exists if testing is ordered ‒ while permitting a court to consider
84
the very making of such a request as a factor that may warrant denial of the
motion. Cf. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (court
should avoid interpretation of statute that "would lead to absurd consequences that
the Legislature could not possibly have intended" (emphasis omitted)). The
District Court's finding that Mr. Reed's DNA testing motion demonstrated an intent
to cause unreasonable delay because it included within its scope evidence or
extracts to which Mr. Reed had access disregards this fundamental point, would
lead to an absurd construction of Chapter 64, and should therefore be reversed.
Third, the court found that Reed "waited more than four months to obtain a
subpoena for a reference sample from himself for purposes of the agreed-to DNA
testing that this Court ordered in July" and thus, this is evidence of his desire to
bring the Chapter 64 motion to unreasonably delay his sentence. C.R. 367, ¶ 23n.
This finding is, again, devoid of support and reflects a misunderstanding. There
was no testimony provided at the hearing on this topic, and the State mentioned it
for the first and only time in closing argument. Regardless, it is apples and oranges
- - the reference sample was for the evidence that the parties had previously agreed
to test, not for the items which Reed sought to test via the motion. Reed denies
that he intended to or did delay in providing a reference sample34 in any event, but
even so, the time it took to do so is entirely separate and distinct from whether
34
Reed notes that the testing facility already had a reference sample from Reed, and that the
issue of a subpoena was based on the State’s request for a new sample. C.R. 219
85
Reed's motion is intended to cause unreasonable delay - - the two are separate
events.
D. Mr. Reed Met His Burden Under Article 64.01 With Respect To Chain
of Custody And Biological Evidence. (Issue 3)
The District Court made no findings with respect to whether Mr. Reed met
his burden under Article 64.01 as to chain of custody and biological evidence. The
District Court's silence on these requisite elements constitutes a presumptive
finding that the elements have been satisfied. See Skinner v. State, 122 S.W.3d
808, 809 n.1 (presumption that elements as to which no findings are made have
been satisfied). To avoid any further delays in proceeding with DNA testing, Reed
respectfully requests that the Court conclude that the failure to make findings in
this case presumptively demonstrates that Reed met his burden or, alternatively,
find that the record demonstrates Reed has established chain of custody and that
the evidence he seeks to test contained biological evidence.
1. Mr. Reed Has Established Chain Of Custody.
At the hearing, Reed established – and the State did not contest – chain of
custody as to the evidence in the possession of two of the three custodians (the
Attorney General's Office and the Department of Public Safety Crime Lab). Mr.
Reed further established that chain of custody was complete as to evidence in the
possession of the Bastrop Country Clerk.
86
There is no real dispute about where the evidence has been – the question at
the heart of any chain of custody inquiry – and the record (including testimony of
the State's own witnesses) demonstrates that the evidence has been in the State's
custody and not compromised so as to preclude meaningful DNA analysis. First,
the State's Sergeant Investigator, Gerald Clough, testified at the hearing that he
could not "identify anything on [the list of items in the State's evidence locker] that
has been substituted, replaced, tampered with, or materially altered." R.R. Vol. 4
at 188:12-189:20. Neither did Mr. Clough have "any reason to suspect that
anything in [the locker] would have been materially altered, tampered with,
substituted, or replaced." See id. Similarly, Ms. Etta Wiley, Criminal Deputy
Clerk for the Bastrop County Clerk's Office, corroborated the sufficiency of the
chain of custody. Ms. Wiley's job involves ensuring that people do not tamper
with, materially alter, substitute, or replace items within her custody. R.R. Vol. 4
at 196:9-197:19. Ms. Wiley testified that the box of relevant evidence has
remained "under lock and key" and that with "some confidence," all of the relevant
evidence has "not been substituted, replaced, tampered with, or materially altered."
See id.at 195:13-196:19 Ms. Wiley, like Mr. Clough, could not supply the Court
with "any reason to suspect that anyone has substituted or replaced, tampered with,
or materially altered" the items in the box within her custody. Id.at 196:16-19.
87
Given Mr. Clough and Ms. Wiley's unrebutted statements, which track the very
language of the relevant part of statute, Mr. Reed has established chain of custody.
This Court has held that nothing more is required to establish chain of
custody: "The chain of custody is conclusively proven if an officer is able to
identify that he or she seized the item of physical evidence, put an identification
mark on it [and] placed it in the property room." Stoker v. State, 788 S.W.2d 1, 10
(Tex. Crim. App. 1989), abrogated on other grounds by Horton v. California, 496
U.S. 128 (1990). Such proof of chain of custody creates a presumption that the
evidence was not tampered with or altered. See id. (noting that chain of custody is
presumptively established absent proof "of tampering or alteration"). The plain
language of article 64.03(a)(1)(A)(ii) in the context of the case law on chain of
custody, clearly indicates that the Legislature did not intend to place any additional
burden on movants for DNA testing than the typical chain of custody showing
required in most criminal cases. In addition, the legislative history indicates the
Legislature intended that the requirements of Chapter 64 "would be minimal so as
not to bar inmates unfairly from receiving tests." Texas Bill Analysis at 6, S.B. 3,
March 21, 2001. Specifically with regard to the chain of custody requirement, the
legislative history states that "[a] defendant's lawyer could establish those facts
easily by requesting copies of reports from law enforcement officials." Id. at 7.
Therefore, a showing of the chain of custody defined under Texas law is sufficient
88
to establish that the evidence "has not been substituted, tampered with, replaced, or
altered in any material respect." Tex. Crim. Proc. Code Ann. art. 64.03(a)(1)(A)(ii)
(West Supp. 2014).
Chain of custody is distinct from whether evidence may or may not be
contaminated, but the District Court's Findings and Conclusions impermissibly
conflate the two concepts. That the treatment of the evidence at trial may have
resulted in the deposit of additional DNA on various items neither defeats Reed's
proof of chain of custody, nor shows that the evidence no longer contains
exculpatory DNA information. See Affidavit of Deanna Lankford C.R. 244.
Possible contamination and issues of care are relevant only to the evidence's
weight, not to the chain of custody. See Stoker, 788 S.W.2d at 10; see also
Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. 1981).
2. Mr. Reed's Unrebutted Expert Established That The
Evidence He Seeks To Test Contains Biological Evidence.
Article 64.01 of the Texas Code of Criminal Procedure permits a convicted
person to seek DNA testing of "evidence containing biological material." Tex.
Crim. Proc. Code Ann. art. 64.01(a-1) (West Supp. 2014). The Legislature has
broadly defined "biological material" to include, in addition to an enumerated list,
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any item that contain "identifiable biological evidence that may be suitable for
forensic DNA testing." Id. art. 64.01(a)(1).35
In support of his DNA Motion, Mr. Reed offered the affidavit of a well-
qualified forensic DNA expert, Deanna Lankford, who opined that, to a
reasonable degree of scientific certainty, the items that Reed seeks to test contain
biological material suitable for DNA testing. See Statement of Facts supra at 24-
25; Affidavit of Deanna D. Lankford, M.T. (ASCP), C.R. 247-48, ¶¶ 15-18; see
also id. ¶ 23 (belt ligature), ¶¶ 24-26 (victim's clothing), ¶ 27 (condom); ¶ 28
(hair); ¶ 29 (name tag); ¶ 30 (fingerprint); ¶¶ 32-33 (samples of biological
material contained on swabs taken from the victim). Ms. Lankford confirmed her
opinion during her testimony at the hearing on Reed's motion on November 24,
2014. See Statement of Facts supra at 27; R.R. Vol. 3 at 114, 142.
Despite its aggressive opposition to the Motion, and access to free experts
from the DPS crime lab, the State declined to offer any rebuttal testimony to
refute Ms. Lankford's credible opinion. Based on Ms. Lankford's unrebutted
testimony and the unrefuted record, Mr. Reed submits that he has satisfied his
35
Whether Chapter 64 requires that a person conclusively prove the existence of biological
evidence, as opposed to showing that its existence is probable or likely, is an unresolved
issue. See Holberg v. State, 425 S.W.3d at 286 n.24 (questioning but not deciding whether
the 2011 amendment to Chapter 64 "operates to lessen the burden on . . . movants to prove
the existence of biological material" as set forth in Swearingen v. State, 303 S.W.3d 728,
732 (Tex. Crim. App. 2010) and Routier v. State, 273 S.W.3d 241, 250 (Tex. Crim. App.
2008)). That issue is presently before the Court in the State's appeal in State v. Swearingen,
No. AP-77020 (submitted by the Clerk on January 21, 2015). Under either standard, the
unrebutted evidence Reed presented at the Hearing satisfied Article 64.01.
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burden under Article 64.01 with respect to chain of custody and biological
evidence without regard to whether the applicable standard is based upon proof or
probability.36
36
The State's position now appears to be that Mr. Reed was required to prove that forensic
DNA analysis will conclusively identify biological material on the items to be tested, rather
than prove (or demonstrate that it is probable or likely) that the items contain "identifiable
biological evidence that may be suitable for DNA testing." This interpretation is
unsupported by the plain language of the statute, and further seeks to impose a standard that
could never be satisfied with respect to microscopic biological material such as a few skin
cells or other trace evidence.
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CONCLUSION AND PRAYER
As the United States Supreme Court observed in District Attorney's Office
for the Third Judicial District v. Osborne, 557 U.S. 52, 55 (2009), "DNA testing
has an unparalleled ability both to exonerate the wrongly convicted and to identify
the guilty." Rarely has a more suitable case for DNA testing been presented. DNA
testing of the belt used to strangle Stacy Stites and other evidence handled by her
killer has the unparalleled ability to conclusively prove Mr. Reed's claim of
innocence and identify her killer. The District Court's Findings and Conclusions
should be reversed, for the reasons noted above, and the evidence that is the
subject of Reed's Chapter 64 motion should be subjected to DNA testing.
Respectfully submitted,
/s/ Bryce Benjet
Bryce Benjet
State Bar No. 24006829
THE INNOCENCE PROJECT
40 Worth St.
New York, NY 10013
(212) 364-5340
(212) 364-5341 (fax)
Andrew F. Macrae
State Bar No. 00784510
LEVATINO/PACE LLP
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
(512) 637-8565
(512) 637-1583 (fax)
ATTORNEYS FOR RODNEY REED
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CERTIFICATE OF SERVICE
I, Bryce Benjet, do hereby certify that a true and correct copy of the
foregoing Brief was served on this 17th day of February, 2015 by first-class U.S.
mail on the following:
Matthew Ottoway
Assistant Attorney General
Bastrop County, Texas
P.O. Box 12548
Capitol Station
Austin, Texas 78711
/s/ Bryce Benjet______________
Bryce Benjet
CERTIFICATE OF COMPLIANCE WITH TEXAS
RULE OF APPELLATE PROCEDURE 9.4(I)(3)
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Bryce Benjet, hereby certify that the foregoing electronically created document has
been reviewed by the word count function of the creating computer program, and
has been found to be in compliance with the requisite word count requirement.
/s/ Bryce Benjet______________
Bryce Benjet
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