WR-62,099-05
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/22/2015 7:18:35 AM
Accepted 4/22/2015 8:33:18 AM
ABEL ACOSTA
IN THE 156TH JUDICIAL DISTRICT COURT OF CLERK
BEE COUNTY, TEXAS
RECEIVED
COURT OF CRIMINAL APPEALS
and 4/22/2015
ABEL ACOSTA, CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
IN AUSTIN, TEXAS
Ex parte Robert Lynn Pruett,
Cause No. WR-62,099-05
Applicant
APPLICANT’S REPLY TO STATE’S RESPONSE
I. The 2009 NAS Report does not “specifically exclude[] talking about
physical evidence matching through fiber analysis, such as done in this
case.” State’s Response at 7-8.
The statement on page 162 of the 2009 NAS Report cited by the State in its
response in no way indicates that the testimony offered by the State at Pruett’s trial
at issue in this proceeding was excluded from the report. There was no need for
the authors of the report to discuss fiber analysis matching specifically, on that
page, because that type of analysis is “analogous to the matching of shoe and tire
prints” which is discussed on a previous page. Nat’l Research Council Comm. on
Identifying Needs of Forensic Sci. Cmty., Strengthening Forensic Science in the
United States: A Path Forward 162 (Nat’l Academies Press 2009) [hereinafter
2009 NAS Report]. Specifically, the discussion of this type of evidence begins on
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page 145 of the report. Included in the list of impression evidence (of which
shoeprint and tire tracks are examples) are bite marks and markings on bullets.
2009 NAS Report at 145.
The problems noted in the summary quoted in Pruett’s application are found
to be present in this type of evidence – i.e., there is a lack of established protocols.
2009 NAS Report at 149 (“[T]here is no consensus regarding the number of
individual characteristics needed to make a positive identification, and the
committee is not aware of any data about the variability of class or individual
characteristics or about the validity or reliability of the method. Without such
population studies, it is impossible to assess the number of characteristics that must
match in order to have any particular degree of confidence about the source of the
impression.”).
II. This Court has not considered an application from Pruett since his
initial application – which was filed five years before the factual basis
for Pruett’s instant claim came into existence.
Pruett’s initial habeas application was filed on February 10, 2004 – five
years before the NAS Report. That application was the last habeas application
filed by Pruett that this Court considered.
In enacting both article 11.071 and article 11.073, the Legislature
differentiated between applications that are merely filed and those that are
considered. Pruett filed a subsequent habeas application in July 2014. However,
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for that application to have been considered, the Court would have had to have
found it satisfied Article 11.071, section 5. Tex. Code Crim. Proc. art. 11.071, § 5.
The Court, on December 10, 2014, held that the application filed in July did not
satisfy section 5, and according to the Court, it did not consider the application.
Order, Ex parte Pruett, No. WR-62.099-02 (Tex. Crim. App. Dec. 10, 2014).
Because the factual basis for the claim did not exist when the last application
of Pruett’s considered by the Court was filed (i.e., his initial application filed in
2004), there is no bar to the Court’s considering the merits of the claim raised in
Pruett’s application.
Respectfully submitted,
/s/ David R. Dow
____________________________
David R. Dow
Texas Bar No. 06064900
University of Houston Law Center
100 Law Center
Houston, TX 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131
Email ddow@central.uh.edu
Counsel for Robert Pruett
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CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of April 2015, I served a true and
correct copy of this Application upon Melinda Fletcher, counsel for the State, via
an email to mfletcher@sputexas.org.
/s/ David R. Dow
_____________________________
David R. Dow
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Pruett, Robert Lynn
Combined Opinion