Reed, Rodney

AP-77,054
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 17, 2015 Transmitted 3/16/2015 9:11:51 PM
Accepted 3/17/2015 7:24:23 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

REPLY 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: benjet@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
 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
 TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES...................................................................................... v
I. INTRODUCTION ........................................................................................... 1
II. ARGUMENT ................................................................................................... 2

A. The State’s “Specificity” Argument Is Contradicted By The
Record.................................................................................................... 2

1. The Evidence............................................................................... 2

2. The State’s “Specificity” Argument Is Unsupported.................. 3
B. The District Court Wrongly Concluded That Reed Failed To
Prove That Exculpatory Test Results Likely Would Have
Resulted In Acquittal. ............................................................................ 6
1. The State Applies An Incorrect Standard To Evaluate
The Weight Of Exculpatory Results. .......................................... 6
2. The State Mischaracterizes Reed’s Arguments That The
District Court Incorrectly Found That He Did Not Show
He Would Not Have Been Convicted With Exculpatory
Test Results. .............................................................................. 11

3. The State Does Not Justify The Failure To Apply The
Proper Exculpatory Result Presumption. .................................. 15

C. The Court Should Overrule The District Court’s Adoption Of
The State’s Unreasonable Delay Findings. ......................................... 18
1. The Court Should Reject The State’s Efforts To Change
The Standard Of Review. .......................................................... 18

2. Reed Proved That His Motion Was Not Made For The
Purpose Of Unreasonably Delaying His Execution.................. 19

D. Reed Satisfied The Elements Of Chain Of Custody And
Biological Evidence. ........................................................................... 21

iii
 1. The State Conflates Chain Of Custody With Evidence
Contamination. .......................................................................... 22

2. Reed Established Through Unrebutted Expert Testimony
That The Evidence He Seeks To Test Contains
Biological Evidence. ................................................................. 27
CONCLUSION AND PRAYER ............................................................................. 29

iv
 INDEX OF AUTHORITIES
Cases Page

Boeck v. State,
No. 04-04-00024-CR, 2004 WL 2997788 (Tex. App.—San Antonio,
Dec. 29, 2004)................................................................................................ 26
Brady v. Maryland, 373 U.S. 83 (1963) ............................................................. 7, 10

Brooks v. Northglen Association,
141 S.W.3d 158 (Tex. 2004) ........................................................................... 4

Brown v. State,
No. AP-75469, 2006 WL 2069445 (Tex. Crim. App. 2006) ........................ 20

Commonwealth v. Conway,
14 A.3d 101 (Pa. 2011) .................................................................................... 9

Dinkins v. State,
84 S.W.3d 639 (Tex. Crim. App. 2002) ...................................................... 5, 6
District Attorney’s Office for Third Judicial District v. Osborne,
557 U.S. 52 (2009)........................................................................................... 8

Ex parte Miles,
359 S.W.3d 647 (Tex. Crim. App. 2012) ..............................7, 8, 9, 10, 11, 17
Ex parte Reed,
271 S.W.3d 698 (Tex. Crim. App. 2008) ...................................................... 10
In re Gutierrez,
337 S.W.3d 883 (Tex. Crim. App. 2011) ...................................................... 13
Holberg v. State,
425 S.W.3d 282 (Tex. Crim. App. 2014) ............................................7, 12, 13

House v. Bell,
547 U.S. 518 (2006)......................................................................................... 8

In re K.J.T.M.,
No. 06-09-00104-CV, 2010 WL 1664027 (Tex. App.—Texarkana
Apr. 27, 2010, no pet.) ................................................................................... 21

v
Kutzner v. State,
75 S.W.3d 427 (Tex. Crim. App. 2002) ............................................13, 14, 20

Medellin v. State,
617 S.W.2d 229 (Tex. Crim. App. [Panel Op.] 1981)................................... 26

Pate v. State,
No. 10-09-00360-CR, 2011 WL 652920 (Tex. App.—Waco Feb. 23,
2011, pet. ref’d) ............................................................................................. 26
Pena v. State,
353 S.W.3d 797 (Tex. Crim. App. 2011) ........................................................ 7

Powers v. State,
343 S.W.3d 36 (Tenn. 2011) ........................................................................... 9
Riggins v. State,
No. 11-03-00307-CR, 2004 WL 743742 (Tex. App.—Eastland, April
8, 2004) .......................................................................................................... 26
Routier v. State,
273 S.W.3d 241 (Tex. Crim. App. 2008) ................................7, 11, 14, 15, 17
Skinner v. State,
122 S.W.3d 808 (Tex. Crim. App. 2003) .................................................19 21
State v. Butler,
21 A.3d 583 (Conn. App. Ct. 2011) ................................................................ 9
State v. DeMarco,
904 A.2d 797 (N.J. Super. Ct. App. Div. 2006) .............................................. 9

State v. Noling,
992 N.E.2d 1095 (Ohio 2013) ......................................................................... 9

State v. Patrick,
86 S.W.3d 592 (Tex. Crim. App. 2002) ..................................................19, 20

State v. Swearingen,
424 S.W.3d 32 (Tex. Crim. App. 2014) ............................................10, 14, 29
Stoker v. State,
788 S.W.2d 1 (Tex. Crim. App. 1989) .......................................................... 26

vi
Thacker v. State,
177 S.W.3d 926 (Tex. Crim. App. 2005) ...................................................... 20

Wilson v. State,
No. AP-76835, 2012 WL 3206219 (Tex. Crim. App. Aug. 7, 2012) .....19, 20

STATUTES
Miss. Code Ann. § 99-39-11(10) (West Supp. 2014) .............................................. 10

N.Y. Crim. Proc. Law § 440.30(1-a)(c) ................................................................... 10
Tex. Code Crim. Proc. Ann. art. 64.01 ........................................................12, 13, 21

Tex. Code Crim. Proc. Ann. Art. 64.03(a)........................................................passim

OTHER AUTHORITIES
Act of June 17, 2011, 82d Leg., R.S., H.B. 1573, §§ 5-6, arts. 64.01, 64.035,
2011 Tex. Sess. Law Serv. 278 (West) ........................................................... 7

Exonerated: Cases by the numbers, CNN,
http://www.cnn.com/2013/12/04/justice/prisoner-exonerations-facts-
innocence-project/ (last visited March 13, 2015) ........................................... 8

House Criminal Jurisprudence Committee, Bill Analysis, Tex. S.B. 3 at 6,
77th Leg., R.S. (2001) ................................................................................... 25

vii
 I.

INTRODUCTION
Almost two weeks into this appeal, and shortly after Reed filed his habeas

application raising new evidence of innocence, the State moved to expedite the

appeal to preserve Reed’s March 5th execution. In its opposition brief, the State

renewed its request. Later that day, the Court entered its stay order to permit

consideration of Reed’s innocence claims.

DNA testing has exonerated more than 325 wrongfully convicted persons.

If Reed’s prosecution occurred today, his motion would be unnecessary because

the murder weapon and other items he seeks to test would be subject to mandatory

testing. The State’s zeal to execute Reed to moot DNA testing, and avoid

consideration of compelling new evidence of Reed’s innocence, speaks volumes.

* * *

Reed’s appeal presents two primary questions: (i) whether the District Court

misapplied the “exculpatory results” test in Article 64.03(a)(2)(A); and (ii) whether

the District Court wrongly concluded that Reed filed his motion to unreasonably

delay his execution under Article 64.03(a)(2)(B). As the record flatly contradicts

the District Court’s Findings and Conclusions and conclusively establishes Reed’s

right to DNA testing, the District Court’s ruling should be reversed. Testing

should be ordered, and Reed renews his offer to pay for it.
 II.

ARGUMENT
A. The State’s “Specificity” Argument Is Contradicted By The Record.
The State spends a considerable time complaining that Reed’s motion lacks

specificity. State Br. 19-20.1 These complaints are contrived; indeed, the State’s

brief demonstrates a detailed understanding of Reed’s request, an understanding

that is supported by the record of the full-day hearing at which each item was

painstakingly discussed by Reed’s two experts.2

1. The Evidence.
Reed’s testing request focused on items handled by Stites’ murderer, and

they therefore contain DNA that can exonerate Reed:

 Pieces of the belt used to strangle Stites.3

 The name tag in the crook of Stites’ knee.4

 Other items of Stites’ clothing and apparel, including her pants, shoes,
socks, underwear, bra, work shirt, tee shirt and earring.5

1
Reed opening brief and the State’s opposition brief are cited as “Reed Br.” and “State Br.”
respectively.
2
The State’s opposition to Reed’s motion likewise reflected an extensive understanding of the
scope of evidence Reed sought to test. See C.R. 161-229.
3
Reed identified both pieces of the belt in his motion (at 3, 22-25), the exhibit thereto (at 1, 3-
5), in Appendix A to such exhibit (at 1-2), and at the Hearing (2 R.R. 24, 39, 43).
4
Reed identified the name tag in his motion (at 4, 20, 22-24, 26), the exhibit thereto (at 2, 5),
in Appendix A to such exhibit (at 3), and at the Hearing (2 R.R. 44:12-16).
5
Reed requested testing of all “[r]elevant areas of Ms. Stites’ clothing” in his motion, which
he identified as “the shirt, pants, bra, panties” and other “areas of Stites’ clothing that were
grabbed by the perpetrator.” (Motion at 3, 20). He further identified such clothing and
2
Reed also seeks to test:

 Biological samples, tape lifts and hairs recovered from Stites’ body (see
Motion at 3).

 Fingerprints recovered by investigators (id. at 4).

 A condom and certain other evidence items found in or near Fennell’s
truck, including an ink pen and check carbons that both contain
fingerprints, a lighter, pack of Big Red gum, a box cutter, the planner
(and the unidentified hair found in it), a knife in a scabbard, rope, a
plastic bag, and a napkin, receipts and other various paper items. See
Motion at 4 and Appendix at 1-2 (C.R. 77, 115-16); 2 R.R. 44-45
(planner) and 50 (hair).

 Beer cans collected near Stites’ body, including swabs and extracts of the
same. 2 R.R. 46-47, 55.

Thus, the State’s attempts to portray Reed’s request as a moving target is a

calculated strategy to “muddy the waters” by injecting confusion where there is

none.

2. The State’s “Specificity” Argument Is Unsupported.
The State’s argument that the Court should affirm the District Court’s denial

of Reed’s Chapter 64 motion in its entirety because the State is purportedly

confused about the precise location of testing Reed seeks to conduct on some items

should be rejected for at least four reasons.

apparel items in the Appendix to his motion, including the pants, bra, underwear, and shirt
pieces (at 3), the earring, and white tee shirt (at 2). At the Hearing, Reed’s experts identified
the clothing items to be tested as including the pants (2 R.R. 29-30), belt (id. at 39, 43),
underwear (id. at 33), socks (id. at 34-35), shoes (id. at 35-37 (left shoe) and 39-40 (right
shoe)), bra (id. at 37), tee shirt (id. at 38), earring (id. at 40), and HEB work shirt (id. at 41).

3
 First, the State’s alleged confusion is irrelevant—the District Court never

ruled that Reed’s motion lacked specificity. Indeed, at the Hearing, the Court

overruled the State’s specificity objections (2 R.R. 31-32) and repeatedly overruled

the State’s objections to the testimony of Reed’s experts on the grounds that their

testimony concerned items not specified in the motion (2 R.R. 36; 3 R.R. 110,

112).

By complaining about findings that were not made below, the State is

effectively asking this Court to make supplemental findings on appeal. However,

as the State never filed a cross appeal, the issue of “specificity” is not properly

before the Court. See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171 (Tex.

2004) (“[A] party who seeks to alter the trial court’s judgment or other appealable

order must file a notice of appeal.” (alteration in original) (quoting Tex. R. App. P.

25.1(c)).

Second, there are no grounds to supplement the State-drafted Findings and

Conclusions with additional “lack of specificity” findings. The State concedes that

Reed listed the items he sought to test with his letter requesting testing and in his

motion. See State Br. 20. The State’s response identified each item it believed

Reed wanted to test (C.R. 172-73) and explained why the State opposed testing it.

Further, two experts identified what items Reed sought to test, the reasons why he

4
sought to test each and where DNA evidence was located on each item. Reed Br.

27-35.6

Third, the State is effectively challenging putative omissions from a

document it drafted, which the District Court adopted verbatim (including

typographical errors) and ex parte. If the State genuinely believed that the District

Court intended to deny Reed’s motion for lack of specificity (and the District

Court’s comments at the Hearing suggest the opposite), surely the State would

have proposed specificity findings.

Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002), does not hold

that a court should deny testing if there is confusion over what is to be tested.

State Br. 25-26. The Court noted possible confusion that might arise from

inconsistencies in descriptions of the evidence identified in the motion and an

expert affidavit, but such inconsistencies were not the basis of the ruling. Rather,

the Court affirmed denial of the motion based upon the movant’s failure to adduce

facts establishing biological material, not because of the noted inconsistencies.

6
Indeed, at the Hearing, the District Court more than once expressed frustration at the
painstakingly detailed testimony that Reed presented with respect to each item he sought to
test. 2 R.R. 36-37 (District Court: “Is there any way we can package all these as opposed to
going through them all individually?”); 3 R.R. 111 (District Court: “Let me ask you this
question. If you look at every one of those exhibits up there, is there anything that you
wouldn’t test? . . . Speed it up. You’re going to go through — . . . every one at a time. If
you can do that altogether, we can get this done.”).

5
Dinkins, 84 S.W.3d at 642-43. Here, the District Court made no findings of

confusion regarding the evidence that Reed wanted to test.

Fourth, the State’s claimed confusion applies only to a select few items that

were primarily in the possession of the Attorney General’s Office. The vast

majority of the items to be tested were discussed in Reed’s informal request, his

motion, and at the Hearing.

B. The District Court Wrongly Concluded That Reed Failed To Prove
That Exculpatory Test Results Likely Would Have Resulted In
Acquittal.
Reed demonstrated that the District Court committed multiple material

errors, including failing to apply the proper exculpatory results presumption. The

State largely sidesteps Reed’s arguments and, instead, distorts the record and offers

contrived arguments of forfeiture. These unsupported and inapplicable arguments

ignore that the State’s case against Reed has been gutted by the unanimous

agreement of Reed’s experts and the State’s experts at trial. The State’s reach for a

more narrow standard and its refusal to address the substance of the evidence

highlight the weakness of its position.

1. The State Applies An Incorrect Standard To Evaluate The
Weight Of Exculpatory Results.
The State’s argument that exculpatory DNA results would not prove

innocence offers a strained and impermissibly narrow statutory construction.

Article 64.03(a)(2)(A) states that a defendant must prove by a preponderance of the

6
evidence that he “would not have been convicted if exculpatory results had been

obtained through DNA testing.” The Legislature did not define the term

“exculpatory results,” and the State seizes upon the Swearingen case to claim the

term should mean only that the defendant has been excluded as the donor of the

biological material. State Br. 32. This construction is inconsistent with this

Court’s jurisprudence, which permits consideration of the presence of third-party

DNA. See Routier v. State, 273 S.W.3d 241, 259 (Tex. Crim. App. 2008).

(a) “Exculpatory Results” cannot be limited to results that
only exclude the defendant.
The Court has rejected the notion that “exculpatory results” are limited to

the DNA exclusion of the defendant. Since Routier, Chapter 64 was amended to

expand access to DNA testing by expanding the definition of “biological material”

and by requiring that DNA profiles be compared to DNA databases. See Act of

June 17, 2011, 82d Leg., R.S., H.B. 1573, §§ 5-6, arts. 64.01, 64.035, 2011 Tex.

Sess. Law Serv. 278 (West) (2011 amendment); Holberg v. State, 425 S.W.3d 282,

286 n.24 (Tex. Crim. App. 2014).

The term "exculpatory" is well-defined in the context of Brady v. Maryland,

373 U.S. 83 (1963), and is generally understood as anything favorable to the

defendant:

7
 Exculpatory evidence is that which may justify, excuse, or clear the
defendant from alleged guilt, and impeachment evidence is that which
disputes, disparages, denies, or contradicts other evidence.

Pena v. State, 353 S.W.3d 797, 811-12 (Tex. Crim. App. 2011). A third-person

suspect is a classic example of exculpatory evidence. See Ex parte Miles, 359

S.W.3d 647, 666 (Tex. Crim. App. 2012). In Miles, this Court explained that police

reports identifying known suspects by name were “exculpatory” under Brady

because their disclosure “could have led to further investigation of other suspects

and theories.” Id. at 666-67.

The State disregards this well-established precedent and urges a different

standard for DNA testing—one of the few objective, scientific tools that can

determine guilt or innocence. The State and District Court applied a definition of

“exculpatory” that includes only slightly favorable DNA results (an exclusion), but

which would prohibit consideration of the unique ability of DNA testing to identify

others present at the crime scene. See Dist. Attorney’s Office for Third Judicial

Dist. 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.”). Indeed, an

alternative suspect is identified in nearly 50% of all DNA exonerations.7 And

where hypothetical “exculpatory results” must prove probable innocence, limiting

7
See Exonerated: Cases by the numbers, CNN,
http://www.cnn.com/2013/12/04/justice/prisoner-exonerations-facts-innocence-project/ (last
visited Mar. 13, 2015).

8
the result to an exclusion would eliminate a key class of evidence that the U.S.

Supreme Court has recognized as vital to such a showing. See House v. Bell, 547

U.S. 518, 548 (2006) (noting that evidence undermining State’s case against House

would not have been enough to prove innocence without other evidence pointing to

a different suspect); see also Ex parte Miles, 359 S.W.3d at 666-67 (exculpatory

evidence includes identity of alternative suspect and requires consideration of what

investigation would reveal).

(b) Numerous jurisdictions consider all realistically
possible exculpatory DNA results.
Other jurisdictions do not place a hard and fast rule limiting how favorable

the exculpatory results can be when determining access to post-conviction DNA

testing. Tennessee courts have construed a very similar statute to allow for

consideration of all “realistically possible” exculpatory results:

“[T]he trial court should postulate whatever realistically possible test results
would be most favorable to [the] defendant in determining whether he has
established” the statutory reasonable probability requirement.

Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011) (second alteration in original)

(quoting State v. Peterson, 836 A.2d 821, 827 (N.J. Super. Ct. App. Div. 2003)

(adopting New Jersey standard)). And just as this Court has done in the Brady

context, other jurisdictions consider both the DNA profile obtained and the

realistic possibilities that flow from the detection of a DNA profile, including the

identification of a specific individual or DNA database match. See, e.g., Powers,

9
343 S.W.3d at 58; State v. Noling, 992 N.E.2d 1095, 1105 (Ohio 2013); State v.

Butler, 21 A.3d 583, 588 (Conn. App. Ct. 2011); Commonwealth v. Conway, 14

A.3d 101, 114 (Pa. 2011); State v. DeMarco, 904 A.2d 797 (N.J. Super. Ct. App.

Div. 2006); see also Miss. Code Ann. § 99-39-11(10) (West Supp. 2014); N.Y.

Crim. Proc. Law § 440.30(1-a)(c) (McKinney Supp. 2015) (same).8

Although this Court declined to consider a match to a DNA database as

“required” in Swearingen, the Court’s opinion did not conclusively prohibit

consideration of the possibility. In that case, the Court clearly believed that there

was no realistic possibility of a DNA match given the “mountain of inculpatory

evidence” against Swearingen. State v. Swearingen, 424 S.W.3d 32, 38 (Tex.

Crim. App. 2014). Here, the Court has already recognized a “healthy suspicion”

that Fennell was involved in Stites’ death and thus, the possibility that Reed is

innocent. See Ex parte Reed, 271 S.W.3d 698, 747 (Tex. Crim. App. 2008).

As numerous jurisdictions recognize, the scope of the “exculpatory results”

considered in granting testing must reflect the technology available. All

realistically possible DNA results should be considered, including:

 finding no DNA;

 detecting an unknown DNA profile on single or multiple samples; and

8
Reed has found no decision that supports the State’s position that a DNA database match
should be prohibited despite a statutory scheme that presumes favorable results and requires
courts to submit results for a CODIS search.

10
  identifying the source of foreign DNA profiles detected on single or
multiple samples.

As this Court recognized in the Brady context in Ex parte Miles, all realistic

consequences flowing from the discovery of a DNA profile (such as a database hit

to a known offender) should be considered. See Miles, 359 S.W.3d at 667.

Adopting the contrary definition suggested by the State would place blinders on

trial judges by preventing consideration of the true benefits of DNA testing and

greatly increase the risk of wrongful imprisonment and execution.

2. The State Mischaracterizes Reed’s Arguments That The District
Court Incorrectly Found That He Did Not Show He Would Not
Have Been Convicted With Exculpatory Test Results.9
Reed demonstrated that the Findings and Conclusions regarding whether

DNA test results would have changed the outcome at trial were not supported by

the record. In particular, Reed showed that the District Court’s conclusion

regarding the apparent “strength” of the State’s case against him, and the

supporting facts on which such conclusion was premised, were contradicted by the

record facts and based on discredited and recanted science. Reed Br. 46-52.

The State’s brief is largely non-responsive. The State does not attempt to

bolster the “strength” of its case, nor does it challenge Reed’s point-by-point
9
The State’s suggestion that Reed improperly submitted “two appendix volumes” of “post-
trial evidence” is unsupported and distorts the record. State Br. 27. Reed’s Appendix
consists of pages from his trial and subsequent proceedings cited in his brief, including
Reed’s new state habeas action. The contents of the Appendix are all public filings,
included in the appendix for the convenience of the Court as permitted, and are matters of
which this Court may duly take judicial notice. See Routier, 273 S.W.3d at 244 n.2.

11
dismantling of that conclusion or the subsidiary findings on which it rested.

Instead, the State offers a red-herring-argument—that Reed’s “first and primary

contention is that the trial court should have considered post-trial evidence in

making its Article 64.03(a)(2)(A) finding.” State Br. 27. The State’s claim that

the “trial court properly eschewed Appellant’s request to consider post-trial

evidence and such evidence is not properly before this Court” implies that the

District Court considered, and rejected, Reed’s post-conviction expert affidavits.

State Br. 29 (emphasis added). That is wrong—no such discussion occurred at the

Hearing, nor do the State-drafted Findings and Conclusions contain any such

findings.

The State’s reliance on dicta in Holberg is misplaced. In Holberg, the Court

was not asked to decide whether post-conviction expert analyses of crime scene

evidence could be considered in the context of evaluating a movant’s case under

Article 64.03(a)(2)(A). To the contrary, Holberg involved whether subsequent

expert analyses could be considered in a different context—in evaluating whether

biological material was present under Article 64.01. The Court considered the

expert reports in that context, but declined to decide whether they were sufficient

to meet Article 64.01’s requirements because the movant failed to establish a

likelihood that exculpatory results would have changed the verdict at trial. 425

S.W.3d at 286.

12
 Additionally, Holberg is distinguishable because the State presented

overwhelming evidence that Holberg had committed the murder. The issue was

whether DNA testing might demonstrate that someone else robbed the victim,

undermining the statutory basis for her capital sentence. Here, the State presented

no evidence that placed Reed at the abandoned truck or where Stites’ body was

found.

Numerous decisions demonstrate that post-conviction expert analysis is

properly considered in a Chapter 64 motion. For example, Article 64.01 places no

restrictions on the movant’s evidence demonstrating that identity was an issue at

trial, as this Court expressly acknowledged in In re Gutierrez, 337 S.W.3d 883,

893 (Tex. Crim. App. 2011). Section 64.03(a)(2)(A) likewise contains no express

limitation on a movant’s ability to introduce evidence demonstrating how

exculpatory DNA results will be persuasive to the jury. Had the Legislature

intended such a limitation, it would have said so.

There appears in this Court’s opinions to be justified reluctance to permit

sweeping consideration of post-conviction evidence not directly relevant to the

elements of a DNA motion. See Holberg, 425 S.W.3d 282; Kutzner v. State, 75

S.W.3d 427 (Tex. Crim. App. 2002). However, even in these cases, the Court

considered expert and other evidence developed post-conviction. See Holberg,

13
425 S.W.3d at 285-86.10 In Kutzner, the court considered a report describing the

police investigation of an item that may have been stolen from the deceased.

Indeed, Kutzner “assum[ed in the alternative] that Article 64.03(a)(2)(A) does

permit a consideration of this ‘new’ post-trial information.” Kutzner, 75 S.W.3d at

439 (assuming in alternative that new post-conviction evidence properly

considered); see also Swearingen, 424 S.W.3d at 37-38 (considering post-

conviction affidavit from DNA expert on issue of whether biological material

exists on subject evidence); Routier, 273 S.W.3d at 250-51 (considering post-

conviction affidavit from DNA expert on ability of current DNA testing techniques

to provide more sensitive test results on previously tested evidence). Instead of the

absolute prohibition asserted by the State, this Court’s jurisprudence reflects a

balanced approach in which post-conviction evidence relevant to Chapter 64

elements can be considered, including evidence that contradicts the “strength” of

the State’s case at trial, as considered under Article 64.03(a)(2)(A). See also

Routier, 273 S.W.3d at 244 n.2 (allowing court to take judicial notice of record in

related proceedings).

10
In Holberg, the Court declined to resolve the issue of whether the movant’s declarations
were adequate to satisfy the proof of biological material requirement because the movant
failed to meet her burden to show that it was likely that exculpatory DNA test results would
have resulted in a not guilty verdict. 425 S.W.3d at 286.

14
 3. The State Does Not Justify The Failure To Apply The Proper
Exculpatory Result Presumption.
The District Court misapplied the statute by, among other things, failing to

consider the effect of test results showing the absence of Reed’s DNA and the

presence of third-party DNA on the belt and other evidence handled by the killer,

as permitted by Routier and Fain where evidence of guilt is less than

overwhelming. Reed Br. 52-59. The State ignores this case law and argues, based

on its improper construction of the “exculpatory results” element, that the only

permissible exculpatory results are those which would exclude the movant from

that item of evidence. State Br. 32-34. This argument is misplaced; the District

Court adopted only cursory of findings on this issue in Paragraph 24c, which states

as follows:

Further, the court finds that none of the evidence Movant seeks to test
was so integral to the State’s case that the jury would have acquitted
despite knowing the movant’s DNA was not on the item. Many of the
items were in a truck shared with the victim’s fiancé and evidence at
trial demonstrated that other people had ridden in the truck. Thus, the
jury would not be surprised to know that foreign DNA was found on
the items originating from the truck. Further, many of the items of
evidence of been handled by ungloved individuals, which further
undermines the value of such “exculpatory” results before a jury.
Ultimately, at best, exculpatory results from the items Movant seeks
test would muddy the waters, not prove by a preponderance that he
would have been acquitted.

These findings failed to consider the focus of Reed’s proof at the Hearing—that

DNA from the person who committed the crime would be left on areas of evidence

15
that were handled in the course of the commission of the crime. As discussed

generally by John Paolucci, an experienced crime scene investigator whose job it

was to select items from the crime scenes for DNA testing:

So what I’m -- what I’m looking for is areas that were touched by the
perpetrator. So now, if a perp—a perpetrator is dragging a victim so
that the dependent portion of the victim is the back, that would mean
that they’re holding them likely by the feet or some area below the
back and that would mean that they’re pulling on an area depositing
skin cells on possibly the cuffs of the pants, the socks, the sneaker.
And I also noticed in the trunk there was an untied shoe. Now, if a
perpetrator is to untie that shoe, they’re going to be handling that --
that evidence and depositing skin cells on it. Maybe pulling the shoe
off of the foot.
....

Also, the belt. Because the belt had similar -- had a similar pattern to
markings on the victim’s throat. So that would mean that there was
some sort of pressure applied to the belt which would mean a
significant deposit of epithelial cells on that belt by the perpetrator.

2 R.R. 24. The majority of the Hearing involved a detailed item-by-item

description of each piece of evidence, with testimony from both Paolucci and DNA

scientist Deanna Lankford regarding how that evidence would be tested, and the

relevance of the realistically possible results of finding the same type of evidence

(redundant DNA profiles across the crime scene) that this Court found persuasive

in Routier. Reed Br. 27-35.

The identification of a specific person’s DNA profile could be dispositive.

For example, the State contended that Fennell was ruled out as a suspect because

he could not have committed the murder and returned home within the State’s
16
timeframe. DNA test results that identify a known associate of Fennell’s on items

handled in the dragging of the body would contradict the State’s only reason for

dropping Fennell as a suspect and would provide a coherent explanation for how

Fennell committed the murder. See 2 R.R. 26 (explaining that DNA testing

important to confirm or contradict account of alternative suspect).

The State’s primary defense of the District Court’s findings relies on its

flawed and improperly narrow definition of “exculpatory results.” Hoping to make

lemonade out of lemons, the State contends that the jury already knew that there

was no physical evidence linking Reed to the crime scenes, and, therefore, a DNA

exclusion would not prove innocence. State Br. 36-42. This response highlights

the fundamental weakness of the State’s case at trial—that the physical evidence

was equally consistent with a consensual encounter Reed. Moreover, it ignores the

full potential of DNA testing on evidence that is actually linked to the murder

itself. As in Routier, finding the same DNA profile on multiple items that were

known to have been handled in the course of the murder will create direct evidence

that the source of that DNA is the murderer and not Reed. And if that person is

actually identified to be Fennell or one of his associates, additional investigation

may further prove Reed’s innocence. See Miles, 359 S.W.3d at 667 (exculpatory

evidence includes consideration of results of reasonable investigation stemming

from disclosure).

17
C. The Court Should Overrule The District Court’s Adoption Of The
State’s Unreasonable Delay Findings.

1. The Court Should Reject The State’s Efforts To Change The
Standard Of Review.
Neither the facts nor the law supports a finding that Reed intended to cause

unreasonable delay by seeking DNA testing under the applicable de novo standard

of review. See Reed Br. 62, 65-86. Thus, contrary to controlling authority, the

State asks the Court to give “almost total deference” to the findings adopted by the

District Court because the “delay” element involves a credibility issue. State

Br. 44-45. The State’s reasoning is flawed. Reed supported his motion with an

affidavit as required by Article 64.01(2)(a-1). C.R. 317-318. The State claims,

without record citation, that it “challenged Appellant’s credibility” at the Hearing

by contesting certain unspecified statements contained in Reed’s affidavit. State

Br. 44. The State then argues that, because it allegedly challenged Reed’s

credibility, the almost-total-deference standard of review applies to the entirety of

the District Court’s conclusion of unreasonable delay. Id. This is not the law;

moreover, the State’s argument is factually baseless. Although the State

introduced exhibits at the Hearing (evidence photographs and post-conviction

opinions), none “challenged [Reed’s] credibility.” Indeed, even at closing

argument, the State never argued that Reed’s credibility was at issue; instead, it

claimed that Reed’s counsel could have requested DNA testing sooner. 2 R.R.

18
219-222. And, as the cases cited by the State make clear, this Court has applied de

novo review to similar application-of-law-to-fact issues. See State v. Skinner, 122

S.W.3d 808, 812 (Tex. Crim. App. 2003).

2. Reed Proved That His Motion Was Not Made For The Purpose
Of Unreasonably Delaying His Execution.
Chapter 64 does not require a movant to demonstrate that he could not have

sought DNA testing earlier than he did; rather, he must show only that his request

was not made to unreasonably delay his execution. See Art. 64.03(a)(2)(B);

Wilson v. State, No. AP-76835, 2012 WL 3206219, at *4 (Tex. Crim. App. Aug. 7,

2012) (not designated for publication) (“Although a defendant seeking DNA

testing no longer need show why he did not raise a claim earlier, he still must show

that his claim has not been made to unreasonably delay the execution of his

sentence.”). In Skinner, this Court overruled a district court’s finding of

unreasonable delay when a movant filed a Chapter 64 motion prior to a set

execution date and during a pending habeas appeal without regard to whether the

movant could have requested testing sooner. 122 S.W.3d at 811.11

11
Judge Hervey’s concurrence in State v. Patrick does not, as the State argues, suggest a
contrary view. 86 S.W.3d 592, 594 (Tex. Crim. App. 2002). Patrick had nothing to do with
unreasonable delay. In that case, the trial court ruled that the defendant failed to satisfy the
elements of Chapter 64, but it nonetheless entered an order permitting DNA testing at the
defendant’s expense. The State appealed, but the appeal was dismissed for lack of
jurisdiction. 86 S.W. 3d at 594 (“The State’s appeal is dismissed.”). The State also sought a
writ of mandamus on the grounds that the trial court lacked jurisdiction to order DNA
testing if the defendant failed to demonstrate satisfaction of the statutory elements, which
this Court granted. Judge Hervey’s concurrence addressed an issue raised in the dissenting
19
 The handful of cases in which this Court has upheld a finding of

unreasonable delay are instructive. Each involved extreme delay and a last-minute

motion filed in the face of an imminent execution, and bear no resemblance to

Reed’s case. See Wilson, 2012 WL 3206219, at *4 (second Chapter 64 motion

filed less than a week before scheduled execution; defendant also failed to show

DNA evidence would be exculpatory); Brown v. State, No. AP-75469, 2006 WL

2069445, at *1 (Tex. Crim. App. 2006) (per curiam) (not designated for

publication) (motion filed 20 days before scheduled execution); Thacker v. State,

177 S.W.3d 926, 927 (Tex. Crim. App. 2005) (motion filed 27 days before

scheduled execution); Kutzner, 75 S.W.3d at 441-42 (request made nine days

before scheduled execution; finding overwhelming evidence of guilt).

Reed’s request for DNA testing was not an eleventh-hour effort to stave off

an imminent execution, and this Court’s recent stay eliminates the risk that DNA

testing will now actually delay an execution. The undisputed facts show that

Reed’s DNA request was a continuation of his seventeen-year quest to prove his

innocence. Reed sought DNA testing at trial and in early post-conviction efforts

opinion and it simply noted that last-minute requests for DNA testing without regard to the
timing of the request and proximity to execution are not consistent with the statute’s
unreasonable delay element. Id. at 598. Judge Hervey’s concurrence did not purport to
address any issues presented in the State’s appeal or mandamus motion, to decide whether
any particular conduct of the movant in that case demonstrated an intent to cause
unreasonable delay, or to establish standards for evaluating whether a movant has satisfied
the statutory preponderance burden imposed by Article 64.03(a)(2)(A).

20
and renewed his request by seeking the State’s agreement to conduct DNA testing

months before the State even sought an execution date (and more than a year

before his last scheduled execution date). The State’s chosen execution date was

scheduled at a time sufficiently far out (six months) to permit the DNA testing to

which the State agreed, and the State’s own conduct caused delays in these

proceedings. These compelling facts demonstrate that Reed did not seek DNA

testing to unreasonably delay his execution and that the District Court’s Findings

and Conclusions to the contrary should be reversed.12

D. Reed Satisfied The Elements Of Chain Of Custody And Biological
Evidence.
The District Court made no findings or conclusions as to whether the items

Reed seeks to test were subject to a sufficient chain of custody (Art.

64.03(a)(1)(A)(2)), or whether they contained biological evidence that may be

suitable for testing (Art. 64.01(a)(1)). The District Court’s silence on these

elements demonstrates that Reed met his burden on both. Reed Br. 86, citing

Skinner, 122 S.W.3d at 809 n.1. Such findings are particularly justified by the

extensive unrebutted expert testimony on both elements and because the State

concedes the issue by failing to respond. See In re K.J.T.M., No. 06-09-00 104-

CV, 2010 WL 1664027, at *2 n.4. (Tex. App. – Texarkana, Apr. 27, 2010, no. pet.)

12
Reed has found no case, nor does the State cite one, in which this Court has found
unreasonable delay when a movant both satisfied the “exculpatory results” element of
Chapter 64 and filed his motion before an execution date was actually scheduled.

21
 1. The State Conflates Chain Of Custody With Evidence
Contamination.
The State does not dispute chain of custody as to the evidence held by the

Attorney General’s Office and the DPS Crime Lab. State Br. 55-56. It challenges

chain of custody only with respect to evidence held by the Bastrop County Clerk

("BDC").

(a) The State misrepresents witness testimony.
Reed established chain of custody for the evidence items held by the BDC

through the testimony of the State’s witness, Etta Wiley, the BDC Criminal Deputy

Clerk. Reed Br. 86-87. Wiley testified that these items are “under lock and key”

and that she has confidence that they have “not been substituted, replaced,

tampered with, or materially altered.” 4 R.R. 195:13-196:19. The State ignores

these facts and instead responds with misdirection. It portrays the testimony of

post-conviction investigator Gerald Clough as having established that the manner

of “storage of these items [at the clerk’s office] allowed for contamination, were

materially altered, and were tampered with.” State Br. 56 (emphasis added). If the

State intends the foregoing language to convey that Clough stated the BDC

evidence was materially altered and tampered with, it is a serious matter, because

Clough did not make such statements.

Clough identified the evidence held by the BDC. 4 R.R. 179-82. The

District Court sustained Reed’s objections to Clough’s testimony when the State

22
attempted to adduce opinion testimony whether he believed the manner of storage

was “proper” for the “purposes of obtaining probative DNA results[.]” See 4 R.R.

184:5-20, 185:15-20.

The State’s claim that the items “were materially altered, and were tampered

with” is based upon Clough’s answers to two hypothetical questions that were not

addressed to the evidence held by the BDC.

Q. With respect to preservation of evidence that has been collected, if
you had collected evidence and sealed it and put it in custody and
somebody came in and opened that seal and touched it and then
passed it around to other individuals, would you consider that
evidence contaminated?

Mr. MacRae [Reed’s counsel]: Your Honor, calls for speculation.

The Court: That’s overruled.

A. I would.

Q. (By Mr. Ottoway) Would you consider that evidence to be materially
altered?

***

A. I would.

4 R.R. 185:11-186:4 (emphasis added). These were answers to hypothetical

questions.

On cross, Clough admitted that he was unaware of any substitution,

replacement, tampering, or material alteration for any of the items at the BDC:

23
 Q. Can you identify anything on here that has been substituted, replaced,
tampered with, or materially altered?

***

A. There is nothing that I know of.

Q. Do you have any reason to suspect that anything in here would have
been materially altered, tampered with, substituted or replaced?

A. Not that I have any specific knowledge of.

4 R.R. 189:4-19. Clough thus confirmed Wiley’s testimony that the BDC did not

permit or know of any alteration, tampering, substitution or replacement of the

evidence it holds.

Paolucci clarified that probative DNA testing can occur despite handling by

ungloved jurors by comparing the DNA from such items to DNA from untouched

evidence. 4 R.R. 76:17-21 (“Because if we start to put a puzzle together and we

have a DNA profile from something in the box that matches something outside of

the box such as those beer cans at the scene, now we’re putting together a very

solid case.”).

Finally, as to Wiley’s testimony, the State mentions her statement about

certain paper evidence “touching each other,” but omits any reference to her

testimony that were not materially altered. 4 R.R. 196:16-197:19. The State never

once addresses the fact that its witnesses established that the BDC evidence was

24
always “under lock and key” and not in fact “substituted or replaced, tampered

with, or materially altered.”

(b) The State’s arguments regarding chain of custody law
lack merit.
Article 64.03(a)(1)(A)(ii) only requires that there be no material alterations

to evidence. Reed’s experts testified that evidence handled by ungloved jurors can

provide probative DNA testing results because any resulting “alterations” do not

prevent deposited DNA from being identified and compared with DNA left on

"unaltered" items. See 2 R.R. 77:11-21-78:11-16 and 4 R.R. 76:17-21 (Paolucci);

3 R.R. 97:22-99:13 (Lankford). Thus, alterations resulting from such handling

cannot be “material” for the purposes of Chapter 64.

The plain language of Article 64.03(a)(1)(A)(ii), in the context of the case

law on chain of custody, shows the Legislature did not intend to place greater

burdens on movants for DNA testing than is typical in criminal cases. Legislative

history demonstrates the Legislature intended Chapter 64 requirements to “be

minimal so as not to bar inmates unfairly from receiving tests…. A defendant’s

lawyer could establish those facts easily by requesting copies of reports from law

enforcement officials.” House Criminal Jurisprudence Committee, Bill Analysis,

Tex. S.B. 3 at 6-7, 77th Leg., R.S. (2001).

The State’s contamination arguments go “only to the weight of the

evidence.” Boeck v. State, No. 04-04-00024-CR, 2004 WL 2997788, at *2 (Tex.
25
App.—San Antonio, Dec. 29, 2004) (mem. op.) (where “there is no dispute that the

samples still exist, are in a condition that makes DNA testing possible, and have

been maintained post-trial under a sufficient chain of custody,” court rejected

State’s argument that mere allegation of substitution of sample defeated chain of

custody); see also Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989);

Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981). The

possible deposit of additional DNA at trial on various items neither defeats Reed’s

proof of chain of custody nor shows that the evidence no longer contains

exculpatory DNA information. C.R. 244. Finally, the State's cases are

distinguishable; one involved items sold after a burglary which later came into

State custody. See Pate v. State, No. 10-09-00360-CR, 2011 WL 652920, at *1

(Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for

publication). Unlike Pate, the BDC evidence came straight from the crime scene

and has remained there without a break in the chain of custody. See 4 R.R. 195:13-

196:19. The State also cites Riggins v. State for a purported temperature control

requirement, but that case involved feces. See Riggins v. State, No. 11-03-00307-

CR, 2004 WL 743742, at *1 (Tex. App.—Eastland, Apr. l 8, 2004) (not designated

for publication). The Legislature has not imposed any such requirements. See

Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii) (West Supp. 2014). Reed’s experts

testified that the BDC’s storage methods did not preclude probative DNA testing.

26
Thus, the BDC evidence has not been “substituted, tampered with, replaced, or

altered in any material respect.”

2. Reed Established Through Unrebutted Expert Testimony That
The Evidence He Seeks To Test Contains Biological Evidence.
Reed’s experts explained why each item contained biological evidence and

how it could exculpate Reed. Reed Br. 26-35. Lankford, a forensic DNA expert,

opined that, to a reasonable degree of scientific certainty, each item Reed seeks to

test contains biological material suitable for DNA testing. See Reed Br. 24-25, 90;

see also 3 R.R. 114, 135, 142. Paolucci, an expert in crime scene investigation,

explained how the items would have been handled during the commission of the

crime and that DNA evidence obtained from those items could reveal the killer’s

identity. Reed Br. 27-35; 2 R.R. 17-18. The State offered no rebuttal witnesses.

Again, the District Court made no findings on this issue, implicitly finding that it

was satisfied.

Displeased with the findings that it drafted, the State disagrees in part. The

State does not dispute that “per se” biological material items, such as hair and

fingerprints, contain biological material. State Br. 61.13 The State argues that for

13
Fingerprints were found on the victim’s name tag. See Motion, Appendix, at 3; see also 44
Trial R.R. 41:22-25. Fingerprints were also found on the pen and check carbons. See
Motion, App. at 1. In addition, three hairs were recovered from the victim, id. at 2, and
another hair was gathered from the brown planner in the truck. 2 R.R. 44-45 (planner) and
50 (hair). A fingerprint was recovered from the inside passenger window of the truck.
Motion, Appendix, at 1. DNA (in the form of saliva) was detected on the beer cans, and
extracts were taken therefrom. 2 R.R. 46-47, 55. Using the State’s proposed construct, each
27
“non-per se” items, Reed’s experts failed to prove biological material exists, even

though their testimony established biological material to a reasonable degree of

scientific certainty. State Br. 58-59. These critical items include the belt used to

strangle Stites and others handled by the perpetrator. State Br. 59 n.30.

The State argues that nothing short of results from the very DNA testing the

State refused could provide proof sufficient to satisfy Chapter 64.01. State Br. 59

(arguing that Reed did not prove biological evidence exists because the only way

to know for certain is to test it); see also id. at 60-61(arguing pinpoint locations of

biological evidence required). Applying this test, Reed could never prove that the

murder weapon contains DNA because the State never tested it for DNA. That is

not what the legislature intended when it enacted Chapter 64 or when it amended

the statute to expand the definition of material that may be tested in order to permit

a convicted person to obtain evidence to demonstrate his or her innocence.

Reed explained that the degree of proof of biological material required to

satisfy Chapter 64.01 is an open issue presently before the Court. State v.

Swearingen, No. AP-77020 (submitted Jan. 21, 2015). The State ignores this and

relies solely on its proposed conclusive proof standard. The State does not dispute

that if this Court decides the standard is anything less, Reed has met his burden.

Reed submits that under either test, his unrebutted expert evidence establishes that

of these items, along with the cavity swabs and tape lifts taken from the victim, constitute
per se biological material.

28
each item he seeks to test contains biological material suitable for DNA testing to

the degree required by Article 64.01.

CONCLUSION AND PRAYER
Rarely has a more suitable case for DNA testing been presented. The

District Court’s Findings and Conclusions should be reversed.

Respectfully submitted,

/s/ Bryce Benjet
Bryce Benjet
State Bar No. 24006829
THE INNOCENCE PROJECT
40 Worth Street
New York, New York 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

29
 CERTIFICATE OF SERVICE
I, Bryce Benjet, do hereby certify that a true and correct copy of the
foregoing Brief was served on this 16th day of March, 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

759415.15-WILSR01A - MSW