dissenting.
This is a writ of habeas corpus filed pursuant to 11.07 V.A.C.C.P. Applicant was tried for and convicted of capital murder. He was sentenced to death. This writ application was filed and set to examine three of applicant’s seven claims: (1) Whether “Petitioner was denied fundamental fairness and due process of law by the fact that critical evidence having the potential to prove that the applicant is innocent was lost and destroyed while in the exclusive possession of the State;” (2) Whether “The pretrial investigative procedures utilized by the State were so impermissibly suggestive of the applicant that it created false testimony calculated to manufacture circumstantial evidence against the applicant in violation of his constitutional rights to due process of law and a fundamentally fair trial;” and (3) Whether “Texas’ death penalty system, as applied, discriminates against black defendants in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.” The majority grants relief on the basis of the second claim, designated as number five in applicant’s original petition, *914without addressing the other two issues. I disagree with the majority’s conclusion concerning the second claim and, therefore, must address the other two issues in order to determine whether I believe applicant is entitled to relief. Believing all of applicant’s claims to be without merit, I would deny relief.
I
In the first claim filed and set for consideration, applicant argues that the destruction or loss of several swabs taken from the vagina of Cheryl Ferguson and two Caucasian hairs taken from near the vagina of the deceased deprived him of a fair trial. In his application, he alleges the following:
1.) THE COTTON SWABS;
Cotton swabs were used to take samples from the victim’s vagina shortly after the rape and murder occured [sic]. Semen and live spermatoza [sic] were present on the cotton swabs. Scientific analysis of the substances on the swabs could have proven the innocence of the Petitioner. The cotton swabs were either intentionally or negligently destroyed by the State while in the exclusive possession of the State. They were destroyed before the Petitioner’s attorney had an opportunity to have them analyzed.
2.) THE PUBIC HAIRS
A reddish brown Caucasian [sic] pubic hair and another brown body hair of probable Caucasian [sic] origin were found near the victim’s vagina. Scientific analysis performed by the Texas Department of Public Safety Crime Laboratory established that these two hairs were neither the Petitioner’s nor the victim’s. Sometime after the conclusion of the Petitioner’s second trial, these hairs were lost by the State while in the exclusive possession of the State.
Because the two Caucasian [sic] hairs found near the victim’s vagina were “lost” by the State, the Petitioner is now deprived of an opportunity to prove his innocence by scientifically comparing the two hairs with the pubic hairs of the Caucasian [sic] murder suspects who have recently surfaced. The loss or destruction of this critical evidence while entrusted to the State of Texas denies the Petitioner his fundamental right to present evidence to prove his innocence.
In response to our order for an evidentia-ry hearing, the hearing judge entered several findings of fact relevant to applicant’s allegations on this point. In regard to the cotton swabs, the hearing judge found that samples of fluids were taken from the vagina of Cheryl Ferguson with cotton swabs; these swabs tested positive for the presence of spermatozoa; no tests were conducted to determine the blood type of the donor of the spermatozoa; no record exist as to when or by whom the samples were destroyed; the swabs were not available shortly after the murder and before applicant’s first trial; such swabs have critical evidentiary value; it is possible to determine blood type and other genetic characteristics of a donor from a sperm sample; such test can be used to exclude some rape suspects; it is, and was in 1980, standard procedure to preserve such samples; and there is no valid scientific justification for the destruction of such samples. In regard to the hair samples, the hearing judge found that four hairs were found near the victim’s vagina, and one hair was a Caucasian pubic hair that did not belong to the victim or her boyfriend.1
In order for the destruction of evidence in the possession of the State to rise to the *915level of a Due Process violation, a defendant must show that the destruction was the product of bad faith on the part of the State. Arizona v. Youngblood, — U.S. -, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). The findings of fact entered by the hearing judge fail to establish that loss of either the swabs or the hair samples was due to bad faith on the part of the State. Within this context, bad faith would require that the State knew that the items destroyed would have been exculpatory.2 Youngblood, — U.S. at -, 109 S.Ct. at 337 n. **; see also California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Because applicant does not allege that the State knew the missing evidence was exculpatory and there is no evidentiary support for such an allegation, this claim for relief is without merit.
II
In the second claim, applicant essentially argues that the prosecution and law enforcement officials instigated an investigation and prosecution founded upon racial bias and prejudice (the so-called “blind focus”) that inexorably led to the wrongful conviction of an innocent applicant, violating his due process rights vouchsafed by the 14th Amendment to the U.S. Constitution. The foundation for this claim, however, the bedrock upon which it rests, is what may be loosely termed as newly discovered or available evidence. The “evi-denee” offered by applicant essentially consists of recantations and recantations of prior recantations of witnesses who testified at applicant’s previous trials. Thus, a threshold question arises concerning the nature of applicant’s claim and the fundamental issue of cognizability — i.e., whether applicant’s “true” claim is cognizable in a post-conviction writ of habeas corpus. For the reasons about to be given, I submit that the claim is not cognizable and should not even be entertained by this Court.
The most succinct statement to be found concerning this area of the law was made by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), viz:
“where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the State trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.”
See also, Anderson v. Maggio, 555 F.2d 447 (5th Cir.1977); Drake v. Wyrick, 640 F.2d 912 (8th Cir.1981); Burks v. Egeler, 512 F.2d 221 (6th Cir.1975), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975); United States ex rel. Whitmore v. Malcolm, 476 F.2d 363 (2nd Cir.1973).
The foregoing cases decided by the Supreme Court and the federal circuit courts *916reflect only federal habeas practice. However, this Court, in a unanimous opinion decided just six years ago, elected to follow the federal courts in this area. See Ex parte Binder, 660 S.W.2d 108 (Tex.Cr.App.1983). In Ex parte Binder, supra, this Court held:
“The basic principle of the state and federal cases heretofore examined, would appear to be that the mere raising of a claim of newly discovered evidence is, standing alone, not a fit subject for the exercise of state or federal habeas corpus powers.
Applicant is obviously free to pursue any remedies the state executive branch has to offer.” [my emphasis] 660 S.W.2d at 106.
Further, this Court, in Ex parte Banspach, 130 Tex.Crim. 3, 91 S.W.2d 365 (1936), over fifty years ago stated:
“It is well settled by the decisions of the Court of Criminal Appeals that the merits of a case involving the guilt or innocence of an accused are not a proper subject of inquiry in a habeas corpus proceeding ... This Court has consistently declined to permit the writ of habeas corpus to usurp the function of an appeal.”
Even assuming, arguendo, that applicant can establish a cognizable “blind focus” claim under Art. 11.07, supra, he must do so by showing that these recantations and recantations of prior recantations of trial witnesses produce a violation of applicant’s rights that rises to a level of deprivation of due process of law. As I will show, the majority opinion attempts to take these recantations and recantations of prior recantations and wrap them in the more attractive cloak of due process of law and thereby grant applicant relief.
The majority opinion relies heavily on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny and a series of Supreme Court cases concerning improperly suggestive lineup procedures. I will begin by discussing these two doctrines and what must be proven in order Uo obtain relief under them; then, I will discuss the facts of this case, both as stated in the majority opinion and as appearing in the record, and show why relief is not proper.
In order to sustain a Brady claim, a defendant must not only show that the suppressed evidence was exculpatory, but that it was material in a constitutional sense. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The Supreme Court has examined the materiality requirement of Brady on several occasions. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court discussed this materiality requirement.
The Court of Appeals appears to have assumed that the prosecutor has a constitutional obligation to disclose any information that might affect the jury’s verdict. That statement of a constitutional standard of materiality approaches the “sporting theory of justice” which the Court expressly rejected in Brady. For a jury’s appraisal of a case “might” be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice.
Whether or not procedural rules authorizing such broad discovery might be desirable, the constitution surely does not demand that much.
Agurs, 427 U.S. at 108-09, 96 S.Ct. at 2400 (footnote omitted). See also Moore v. Illinois, 408 U.S. 786, 795-96, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). The Court further clarified this standard in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
[Undisclosed] evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding *917would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.
* * * * * *
The reviewing court[3] should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.
Bagley, 473 U.S. at 682-83, 105 S.Ct. at 3384 (emphasis added). See also Ex parte Adams, 768 S.W.2d 281, 289-90 (Tex.Cr.App.1989).4
The majority has limited its inquiry into the record to a determination of whether there was some testimony on which the hearing judge could have based his individual findings of fact. While such an approach may be proper in determining whether the findings are “supported by the record,” it wholly fails to make the determination of materiality required of us by the United States Supreme Court.
The Supreme Court has adopted a similar standard of materiality for cases in which improper police procedure has produced an unreliable identification. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the defendant was taken to the hospital room of one of his alleged victims. The victim was asked whether the defendant was the man who had killed her husband and attacked her. She positively identified the defendant, and before the Supreme Court, he challenged the identification as being the product of an unconstitutionally suggestive procedure. The Court stated:
We turn now to the question whether petitioner ... is entitled to relief on his claim that ... the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.... The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it....
Stovall, 388 U.S. at 301-02, 87 S.Ct. at 1972 (emphasis added); cf. Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 1128-29, 22 L.Ed.2d 402 (1969) (repeated lineups in which defendant was the only common suspect held to violate standard set out in Stovall). Thus, the question relevant to suggestive investigative procedures is virtually identical to that of “materiality” in a Brady setting — was the procedure so unfair that it calls into question our confidence in the verdict. Again, because the majority fails to examine the effect of the suggestive procedures, it overlooks a threshold question necessary to grant applicant relief.
In its opinion, the majority focuses on three factual occurrences in granting relief.5 First, they discuss the “walk-through” and the possibility that this pro*918cedure was unnecessarily suggestive and caused several witnesses to improperly alter their testimony. Second, they discuss Ranger Style’s intimidation of Henry Peace. And third, they discgss Cheryl Bradford’s statement to the police that she had seen two white men walking through the gym at the approximate time of the killing. I do not believe that any of these three occurrences rise to the level of constitutional infirmity necessary to warrant relief.
Assuming, arguendo, that the hearing judge’s findings of fact are correct6 and that the majority is correct that the walk-through was conducted in an improperly suggestive manner, the record does not support a conclusion that the effect of the walk-through was constitutionally material. Three of the five janitors on duty the day of the murder went through a joint walk-through of the school with Ranger Styles on August 30, 1980: Gary Acreman, Sam Martinez, and John Sessum.7 Each of these three men gave written statements before and after the walk-through. Comparison of the pre-walk-through statements with the statements given after the walk-through reveals that the changes in the witnesses’ accounts are very minor.
The first thing that one notices when comparing any of the pre and post walk-through statements is that the statements taken after the walk-through are, without exception, longer and more detailed than those taken before the walk-through. This fact does not establish that the walk-through somehow tainted the witnesses’ statements. The first set of statements were written by each witness himself. The second set of statements were the product of an interview with the witness by Ranger Styles. It is reasonable to believe that the prodding of Ranger Styles would increase the detail of each statement without compromising the integrity of any witness’s account of what he observed. In addition, the mere act of tracing one’s steps throughout the day would likely produce greater detail even without pressure to conform one’s account with those of the other witnesses. The additional length of the statements does not establish that the walk-through altered any testimony in an improper manner.
Before the walk-through, John Sessum gave the following written statement:
I come to the school about 8:00 A.M., I rode to work with Gary in his Datsun Pickup, orange and white color. We park in front of the vocational building. We walked over to the main building, the doors were all locked and we waited for Clarence. We waited about 10 or 15 minutes. Sammie [Martinez] came up after we got there and was also waiting. Clarence came down the sidewalk and opened the door. There was another subject Eckie [Henry Peace] a short stocky guy, he also came up about the same time as we did. All five (5) of us then went to the cafeteria and Clarence showed us where to set up the tables and chairs. It took about a hour and a half to set up the chairs. When we finished we walked out in the hall to the front of the building. We waited 10 or 15 min*919utes. There were a couple of people standing in the hall around the end where the gym is. When Clarence came up a girl was coming up behind him. We kidded him about watching out, there is a pretty girl coming up behind him. She had blond shoulder length hair, about 5' tall, she had blue jeans and a pullover sweater on. Clarence told us what we had to do and where to go. The four (4) of us then went to the annex to set up the chairs. Clarence said he had something else to do and stayed behind. We sat at the annex about five (5) minutes, then Eckie went back and got the keys from Clarence. When he got back we set up the tables and chairs. We finished it and it was around 10:30 or 11:00 A.M. Clarence came over and told us it looked good and we could go home. That is when Gary [Acreman] and I left, I do not know when Clarence and the other two left [sic in passim].
Sessum’s statement given after the walk-through stated:
On Saturday, August 23, 1980 I arrived at my job at the Conroe High School somewhere between 7:00-7:30 A.M. I rode in with Gary Acreman. We went to the north side of the building to wait for Clarence Brandley to come unlock the door, because he is the supervisor and is the only one who had a key to the doors. Henry Peace was also there when Gary and I arrived and a few minutes later, Sammy Martinez got there. We waited approximately fifteen (15) minutes for Clarence. When he got there, he unlocked the door on the north side of Conroe High School and we all went in. Clarence took us (me, Gary, and Sammy) to the Cafeteria and told Henry Peace to buff the floor in the Teachers’ Lounge. Clarence then unlocked the door to the lunchroom and told us to put the tables and chairs back in it. Clarence then unlocked the side door of the lunch room that leads into the hallway of the Auditorium area. We finished setting up the tables and chairs around 9:30 A.M., and then came back out through the same door we entered from, and walked down the hallway of the Auditorium area to wait for Clarence to come tell us what to do next. We were waiting just a few feet away from the stairs that lead up to the Choir Room area. There are two restrooms at the top of the stairs — one for ladies and one for men. We stood there for approximately fifteen (15) minutes and saw a white female student with shoulder length blonde hair, wearing blue jeans and a slip-over type shirt, (color unknown) come up the stairs from the gym area. She went on up the other flight of stairs and went into the ladies’ restroom. Just as she went into the restroom, Clarence came up the stairs from the gym area. He was carrying several rools of toilet tissue and he started up the other flight of stairs toward the restrooms and Gary hollered at him and told him there was a girl in the restroom He said, “I’m not going in the restroom, you all go on over to the Vocational Building and start setting it up for a meeting, and I’ll be on over.” Clarence went on up the stairs and turned right into the direction of the stage of the Auditorium. Gary, Sam, and I started walking on toward the Vocational Building and Henry Peace came out of the Teachers’ Lounge with the buffer. He left the buffer there and joined us and we all went to the Vocational Building. We waited in front of the building for approximately forty-five (45) minutes before Clarence came out of the other building. He came out the same door on the north side and walked toward us for a way, then called Henry to come get the key and unlock the door. Henry unlocked the door and we went in. We finished around 11:45 A.M. and Clarence came back over to the Vocational Building and told us that we could go home. Clarence had a white towel around his neck, and I said, “What’s the matter? You’re sweating too much.” Clarence just said, “Ive been working hard. He was acting nervous and trying to hurry us out. Then he asked me for the gray *920canvas work gloves that I had found in the lunch room when we were working down there, and said they were his, so I gave them to him. He asked me if we were through with the dolly, and I told him “yes”, and I went and got it for him. Clarence and Henry then left the Vocational Building and went back toward the other building across the street. On Tuesday, August 26, 1980, Clarence was talking to Gary and me. Gary asked him about the little girl who was killed at Conroe High School on Saturday, and Clarence said, “If they start asking me any questions, I’m gonna get me a lawyer” [sic in passim].
The vast majority of differences between Sessum’s statement given before the walk-through and the one given soon after can be characterized as being the addition of facts neither present in the first statement nor inconsistent with that statement. As discussed above, such changes are not indicative of improper influence. The only differences between the statements which cannot be explained in this manner is the assertion in the second statement that Cheryl Ferguson arrived on the scene before applicant and the placing of him there before her and the amount of time between going to the vocational building and Henry Peace getting the keys from applicant.8 These differences are of minor importance. The walk-through failed to shake Sessum’s testimony that applicant was at the scene of the murder at approximately the time that Ferguson was killed and that applicant was out of the presence of the other janitors for a time sufficient to kill Ferguson and to move her body to where it was found in the auditorium. Thus, the facts essential to the State’s case remained the same. Finally, because Sessum did not testify at applicant’s second trial, the one in which he was convicted and that now serves as the basis for this writ, the walk-through could not have produced false testimony by this witness.9
Gary Acreman’s first statement, taken before the walk-through, states:
We were asked to work Saturday. We showed up at 7:30 AM. We started setting up the cafeteria for Monday morning then went looking for Clarence to see what else he wanted us (John, Sam, Icke, and I) to do. As we were coming back from the gym we turned to look behind us and saw a girl, Blonde girl going into the restroom. Clarence showed up with several rolls of toilet tissue we told him that someone was in the girls restroom. He told us to go over to the vocational bid. so we could set up for a meeting for Monday. All four of us went over to the vocational bid. and didn’t see Clarence for 45 minutes. We had to wait on him for the key to get in. He called Icke back over across the street and gave him the key and I didn’t see Clarence anymore until 11:45 and he told us to go home [sic in passim].
The statement taken after the walk-through states:
On Saturday morning, August 23, 1980, we got to our jobs at the Conroe High School. Clarence Brandley, Samuel Martinez, John Sessum, Henry Peace, and I were working that day. Peace, Martinez, Sessum, and I waited on the bench *921on the north side of the high school for Clarence. Clarence is the supervisor, and is the only one of the crew who has keys to the doors. Clarence got there around 7:40 A.M. and unlocked the door on the north side of the building and took us to the cafeteria. He told Henry Peace to go buff the floor in the Teachers’ Lounge, and told Sammy, John, and I to put all the tables and chairs back in the cafeteria. Then Clarence unlocked the door to the cafeteria from a hallway. Then he went on into the cafeteria and unlocked a side door of the cafeteria that opens into a hallway of the Auditorium area. We finished around 9:30 A.M. or a little later, and John, Sammy, and I left the cafeteria through the same door as we had entered and walked into the hallway area of the Auditorium to wait for Clarence to give us our next assignment. We stood in the hallway just a short distance from the stairs that go into the Choir Room area. We had been there only two to three minutes when a young white female with medium length blonde hair came up the stairs from the gym area and went on up the stairs to the direction of the restrooms at the top of the stairs. She went into the ladies’ room. We saw Clarence coming up the stairs from the gym and he had several rolls of toilet tissue in his hands. He started on up the stairs to the area of the restrooms, and I told him there was a girl in the ladies’ restroom. He said he wasn’t going in there and he then told the rest of us to go on over to the Vocational Building and that he would be over in a little while. Clarence walked on upstairs and turned right and walked toward the door that leads to the stage area of the Auditorium. This was approximately 9:40 A.M. We left and were walking down the hallway and we saw Henry coming out of the Teachers’ Lounge with the buffer. He left the buffer there and went with us. The four of us left the building through the same door on the north side as we had entered earlier. We went to the Vocational Building and waited there in front of the building for Clarence to come unlock the door. Between 10:15-10:20, I went back over to the Teachers’ Lounge and got a coke. I got the coke and went right back out through the same door on the north side of the building and I didn’t see Clarence anywhere in the area around the Teachers’ Lounge. When I got back to the Vocational Building, I saw Clarence coming out of the same door on the north side of the building. He walked toward the Vocational Building for a way, and stopped and called Henry to come get the key. Clarence had a white towel around his neck. I had never noticed a towel around his neck before. After he gave Henry the key, Clarence turned and went back into the building through the north side door. Henry unlocked the door and we went on and finished setting up the chairs for the custodial meeting scheduled for Monday. At about 11:45, Clarence returned to the Vocational Building and told us we could go home. Clarence seemed to be acting different than the last time I had seen him over in the other building. He seemed very nervous and seemed to want us to hurry and go. I did not know what had happened at Con-roe High School until Sunday morning when I read it in the Conroe Courier. On Monday, August 25, 1980, the custodial meeting was set for 8:00 A.M. I arrived a little early, and I saw Clarence and Henry there for the meeting. I asked Clarence if he knew what the girl looked like that was found deat at Conroe High School and he said, “All I know is that she had blonde hair.” He never said anything else about her. I also talked with Henry before the meeting and was telling him what I had read in the newspaper, and Henry said, “I was the one who found her.” He said he found her in the Auditorium, lying behind some plywood. Clarence was standing about five (5') feet from me when I found her. The next time I saw Clarence was Tuesday, August 26, 1980. He told me that he went down to Houston to take a poly*922graph test. He also said that as far as he knew, he passed it. Clarence also said “If the officers question me anymore about it, I’m going to get me a lawyer.” I have noticed that since Saturday, August 23, 1980, Clarence has been acting nervous. I have not worked under him since that day, but I have seen him. Clarence is the night shift supervisor, and is the only one of the crew who has a key to the doors. R.L. Phillips is the day shift supervisor, and is the only one of that crew who has a key to the doors [sic in passim].
Each difference between Acreman’s first and second statements is merely the inclusion of an additional fact not present in the first statement. As explained above, such additions are not indicative of improper influence and do not call the accuracy of Acreman’s testimony into question.10 The record simply does not support an inference that Acreman’s testimony or statements were changed in any way as a result of the walk-through. And, even if one does believe that the walk-through tainted Acre-man’s testimony to some extent, it is absolutely unreasonable to believe that the walk-through “conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification” or testimony. Stovall, 388 U.S. at 301. Such is the high burden set out by the Supreme Court, and applicant does not meet it.
Sam Martinez’s first statement, given before the walk-through, states:
Went to work around 7:35 A.M. in cafeteria to put table and chairs in cafeteria. Finished in cafeteria sometime between hour of 9:00 A.M. and 9:30 A.M., not sure when. Next went to look for Clarence, found him coming up stairs with two rolls of toilet paper or towel paper. Then saw blonde-headed girl go to the girl’s restroom. She had on blue jeans, medium hair. Next we asked Clarence what to do, he told us to go across the street to the Vocational Building. We did, and then we waited about 30 minutes before he came out the mail building and called to the short man to come to get key to the building. Then we set the chairs up there, we finished this, then he came and told us that we were finished, which was about 11:00 A.M. or little after [sic in passim].
In his second statement, Martinez said:
On Saturday, August 23, 1980, I arrived at by job at the Conroe High School around 7:30 A.M. When I got there, Gary, John and Henry were already waiting. We waited for Clarence Brandley because he is the supervisor and is the only one of us who has a key to the door. Clarence got there around 7:30 A.M. He unlocked the door on the north side of Conroe High School and we all went in. Clarence took me, John, and Gary to the cafeteria, and told Henry to go buff the floor in the Teachers’ Lounge. Clarence unlocked the door to the cafeteria and told us to put the tables and chairs back in there. Then he unlocked the side door of the cafeteria that opens into the hallway area of the gym. We set up all the tables and chairs and finished at approximately 9:30 A.M. Then Gary, John, and I came out of the cafeteria through the same door as we had entered, and walked on down the hallway of the Auditorium area to wait for Clarence to give us our next assignment. We waited in the hall just a short way from the stairs that lead up to the choir room. There *923are also two restrooms at the top of the stairs. The ladies’ restroom is the one nearest the stairs, and the other one is for men. We had only been standing there for a few minutes when I saw a girl going up the stairs toward the restrooms. She was a young white female, with shoulder length blonde hair. She was wearing blue jeans and a wide leather belt that looked like a cowboy belt with some type carving, maybe a name on the back. She went on up the stairs and went into the ladies’ restroom. Clarence came up the stairs from the gym and was carrying some toilet tissue. He started on up the stairs toward the restroom and Gary hollered out to him that there was a girl in the restroom. Clarence said he wasn’t going in the restroom and for us to go on over to the Vocational Building and he would be over in a little while. We started walking on over to the Vocational Building and Henry had finished in the Teachers’ Lounge, and he joined up with us. We left the building through the same door on the north side and went across the street to the Vocational Building and waited for Clarence to come unlock the door. We waited for approximately forty to forty-five (40-45) minutes for Clarence to come unlock the door. Sometime after 10:30 A.M., Clarence came out of the building on the north side and walked toward the Vocational Building for a short way, and then called Henry to come get the key. Clarence turned around and went back into the building through the north side. Henry unlocked the door and we set up the vocational building for a custodial meeting on Monday, August 25, 1980. We finished the building around 11:30 A.M. and Clarence came in and checked the building and told us we could to home. We started to leave and Clarence told John that the gloves he had found early that morning were his, and that he wanted them. John gave the gloves to him. They were gray canvas type work gloves. Then Clarence got a dolly from the Vocational Building and he and Henry went back over to the other building across the street and went back inside through the north door and I went home [sic in passim].
The two statements of Sam Martinez are essentially identical to those of Sessum, with the exception that Martinez did not change his estimate of the time they waited at the vocational building for keys. The only difference between the two statements, other than inclusion of additional details, is the order in which applicant and Ferguson arrived at the bathroom. Again, this is a minor difference and does no damage to the essential evidence relied upon by the State. Nothing suggests that the walk-through lead to an “irreparable” influence on Martinez’s testimony, as required by Stovall, 388 U.S. at 301-02, 87 S.Ct. at 1972-73.11
While there are almost insurmountable credibility problems with the testimony of Acreman and Sessum, which in turn might implicate Martinez’s testimony, these credibility problems do not stem from the walk-through. Because of this, applicant should not be granted relief based on the walk-through.
The second factual occurrence that the majority uses to grant relief is Henry Peace’s testimony at the hearing that he was intimidated and physically abused by Ranger Styles. Peace’s first statement to the police, taken before Ranger Styles arrived in Conroe and the walk-through was conducted, is consistent with a statement later given to Ranger Styles and his testimony at both trials and the writ hearing. In fact, Peace testified at the hearing that he is now telling the truth about what he saw at the school on the day of the murder and that he has told that same story in every statement he has given and on every *924occasion he has testified. Thus, if Peace is to be believed, as the hearing judge has decided to do, then Style’s intimidating tactics did not produce any unreliable testimony. Because of Peace’s testimony, this alleged constitutional defect in the investigation is not constitutionally material and entitles applicant to no relief.12
The final incident relied upon by the majority concerns a statement given by Cheryl Bradford that she observed two men in the gym near the time of the murder. As stated above, to grant applicant relief based on this allegation13 would require us to find that Bradford’s statement is exculpatory, to applicant, and is material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97.
First, I begin by noting that Bradford’s statement is not exculpatory. Proof that one or more individuals other than applicant participated in the commission of this offense would not exclude the possibility of applicant’s guilt. Black’s Law Dictionary provides the following definitions:
Exculpatory. Clearing or tending to clear from alleged fault or guilt; excusing.
* * # sfc * *
Exculpatory statement. A statement which tends to justify, excuse or clear the defendant from alleged fault or guilt.
Testimony of the presence of these two men at the gym neither tends to justify applicant’s actions nor is it inconsistent with his guilt. Even if the two men participated in the crime, something to which Bradford does not and cannot testify, all evidence still placed applicant at the scene of the crime; applicant was still the only black male at the school who might have been the donor of the hairs on Cheryl Ferguson’s body; applicant was still separated from the other janitors at the time the *925victim’s body was placed in the auditorium; and, there would still be evidence that applicant knew the location of the victim’s body before it was found by Peace. Bradford’s ominous testimony that the man she saw in the gym might have been Dexter Robinson does not help applicant because the State did not learn of Robinson’s possible involvement until years after applicant was convicted. For these reasons, I do not believe that Bradford’s statement was exculpatory.
In addition, even if exculpatory, Bradford’s testimony was not material. In order to be material, the majority would have to find that there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Instead of undertaking this required analytical step, the majority leaps from a finding that the statement was exculpatory to the conclusion that applicant is entitled to relief. I cannot imagine that the revelation of this minor piece of evidence would have swung this entire prosecution around to an acquittal. I challenge the majority to set out a reasonable scenario in which such a change in result would be more likely than not. Short of such a scenario, the majority should not have granted relief based on this issue.
Ill
In the third claim filed and set, applicant alleges facts to support a claim that “Texas’ death penalty system, as applied, discriminates against black defendants in violation of the Fifth Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.” Although this claim is based on McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), applicant alleges facts in addition to statistical evidence that black defendants are more likely to receive the death penalty. The hearing judge entered the following findings of fact in regard to this claim:
1.The Petitioner, Clarence Brandley, is a black man.
2. The victim, Cheryl Fergeson, was a • 16 year old white girl.
3. Dr. Sheldon Ekland-Olson, testified at the evidentiary hearing as an expert witness. Dr. Ekland-Olson is a faculty member at the University of Texas at Austin. He holds a doctorate degree in Sociology and also attended Yale Law School.
Dr. Ekland-Olson conducted a research project which analyzed the application of the death penalty in Texas during the years 1974-83, the first decade of the “new” Texas death penalty statute. Unlike the death penalty statutes in other states such as Florida and Georgia, the Texas statute is a “structured” or “guided discretion” statute, designed to eliminate the racial disparity in the application of the death penalty which the Supreme Court found offensive and unconstitutional in Furman v. Georgia [408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)].
Using data collected from the several hundred Texas capital convictions which occurred during the first decade of the post-Furman statute, Dr. Ekland-Olson sought to determine whether Texas’ new guided discretion statute was in fact being applied in a non-discriminatory manner.
After accounting for the significant variables, Dr. Ekland-Olson’s analysis of the data revealed the Texas death penalty statute, as applied, has not produced non-discriminatory results. Significant race-linked discrimination exists[,] in that capital cases involving white victims are more likely to precipitate the death penalty than cases involving black victims.
The research regarding rape homicides in Texas, the offense for which Petitioner was convicted, reveals that the most likely person to receive the death penalty in Texas is a black man convicted of the rape homicide of a white woman. Taking into account all of the various offenses eligible for the death penalty in Texas, and all of the many possible of*926fender/victim racial combinations, the probability of being executed in Texas is increased five fold for a black man convicted of the rape homicide of a white woman.
The research of Dr. Ekland-Olson, establishing that the Texas death penalty statute has produced victim-based racial discrimination, is consistent with the other research done in Texas and throughout the country, particularly the sophisticated Baldus study which the Supreme Court accepted as statistically valid in the McCleskey case. [481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) ]
4. The jury in Petitioner’s first trial was all white. The State had used peremptory challenges to strike all qualified blacks.
5. The jury in Petitioner’s second trial was all white. The State had used peremptory challenges to strike all qualified blacks.
6. At the time of Petitioner’s first and second trials, the District Attorneys [sic] Office in Montgomery county utilized several prosecution manuals. The manuals were resource or reference books which instructed the prosecutors on all aspects of how to try a criminal case. The manual recommended that black persons not be allowed to serve on any criminal jury.
7. At the time of Petitioner’s first and second trials, a routine or practice existed in the Montgomery County District Attorney’s office that all black persons were to be stricken from the jury panel when there was a black defendant. Had any Assistant District Attorney allowed a black person to serve as a juror, the District Attorney, James Keeshan, would have required that assistant to explain why he departed form standard practice by allowing a black person to serve on a criminal jury.
8. No lawyer having practiced in Montgomery County can recall a black person ever being permitted to serve on a jury when there was a black defendant, except one instance in 1978 when a black Conroe police officer was allowed to serve on a jury.
9. The jury at Petitioner’s first trial ultimately became deadlocked 11 to 1 for conviction. The lone holdout, William Shreck, failed to vote for conviction because he felt that the State had not proven Petitioner’s guilt beyond a reasonable doubt. During the deliberations, the other jurors repeatedly called William Shreck a “Nigger [sic] lover.” After a mistrial was declared, William Shreck received thousands and thousands of harassing phone calls. During the first month, the harassing calls would arrive every five seconds when the phone was left on the hook. On those occasions when the phone was answered, the caller would exclaim “nigger lover” and then hang up.
In April of 1987, six years after the mistrial was declared, William Shreck applied for the position of purchasing agent for Montgomery County. Of the seventy-odd applicants for the job, William Shreck was selected as one of the several finalists. Mr. Shreck had considerable experience based on the thirty-odd years he was employed as a purchasing agent for an oil company in Houston. As a finalist, the five district judges and the county commissioner of Montgomery County interviewed William Shreck. During the 45 minute interview, approximately 45 minutes was consumed by the judge’s questions regarding why Shreck did not vote for conviction at the first Brandley trial in 1980. Judge Keeshan asked many of the questions. The district judges then told William Shreck that his “not guilty” vote at the first trial demonstrated that he could not get along with people. The judges denied Mr. Shreck the job.
10. Shortly after the victim’s body was found on August 23, 1980, a white Conroe police officer had a conversation with Henry Peace regarding who perpetrated the murder. The officer then turned towards Clarence Brandley and *927announced to Peace that “The nigger was elected.”
11. Prior to Petitioner’s first trial, Petitioner’s attorneys approached the Sheriff of Montgomery County, Gene Reaves, to post Petitioner’s bond. Bond had been set at Thirty Thousand ($30,000.00) Dollars and Petitioner’s attorneys had good and sufficient surety to make the bond. The Sheriff refused to accept the bond, however, stating that “The little Nigger [sic] doesn’t belong on the ground.” District Attorney James Keeshan was present and agreed, echoing the Sheriff’s phrase that the “little Nigger [sic] doesn’t belong on the ground.”
After both Sheriff Reaves and District Attorney Keeshan made their intentions clear that they didn’t want the “little Nigger [sic]” to make bond, Keeshan met with Judge Lee Alworth without any notice to defense counsel. Judge Alworth thereafter signed an ex parte order prepared by Keeshan which raised Petitioner’s bond to Seventy Thousand ($70,-000.00) Dollars.
12. Racial considerations infected the atmosphere within the courtroom during Petitioner’s trial. Many members of the public, both black and white, attended Petitioner’s trial. The Montgomery County Sheriff’s Department treated the black spectators differently, however. When a black person exited the courtroom during trial, one of the numerous sheriff’s deputies on hand would follow the black person from the courtroom and keep the person under observation. An elderly black gentleman, Reverend J.J. Robinson, pastor of the Mt. Hebron Baptist Church in Houston, was even followed by a deputy when he went to the restroom.
Several witnesses testified at the evi-dentiary hearing that a powerful feeling of prejudice and racial tension pervaded the courtroom. Judge Martin’s secretary, Janet Dial, heard an elderly white woman openly repeat to herself in the courtroom, but plainly audible to others, “Kill the nigger, kill the nigger ...” The sheriff’s deputies allowed the woman to remain in the courtroom.
The Reverend Anderson Davis, a highly educated person in his middle 60’s, testified that of the many trials that he has personally witnessed over the years in the State of Texas, Georgia, Virginia and Tennessee, on only one other occasion did he experience a trial where the racial tension in the courtroom compared to that of the Brandley Trial. That trial was in Chattanooga, Tennessee in 1946 when a prosecution witness stated, without reproach from the court, that he knew three things about “niggers”: They all lie, steal and smell.
The tone of the courtroom, as fostered by the District Attorney’s Office, the Judge and the District Clerk’s office, was white against black. One example of this white against black atmosphere is evident in the in-chambers discussion during the penalty phase, where the district attorney complains to the trial judge that a black woman had sat on a white woman’s hand. District Attorney Keesh-an further reveals his personal white versus black posture when he suggests that if any announcements to the audience are necessary, he will make an announcement to the white people and Petitioner’s attorney could make an announcement to the black people. Wholly apart from the judge’s legal rulings, the demeanor and attitude of the judge was hostile to the Petitioner and the black members of the audience. The Reverend J.J. Robinson testified that the judge’s attitude towards Petitioner and the black people in the audience clearly revealed the judge’s partiality in the case. The Reverend did not feel comfortable even being in the courtroom.
13.During petitioner’s second trial, a “team-like” or “company” atmosphere existed at the courthouse between Judge Martin’s staff, the District Attorney’s Office and the District Clerk’s office. The “project” or “goal” of the team was to convict the Petitioner. Employees of *928Judge Martin’s staff and the District Clerk’s Office felt pressure to be team players and were too intimidated to act impartially towards Petitioner or to even voice any suggestion regarding Petitioner’s possible innocence.
The “project-like” atmosphere pervaded the courthouse during Petitioner’s second trial. The atmosphere existed even after the conviction, as evidenced by the agreement, between Judge Martin, the District Attorney and the District Clerk, to keep secret the fact that critical exhibits had become missing. A sordid instance where the “project like” mentality overbore any sense of justice and decency at the courthouse can be seen in the conduct of the District Clerk and the District Attorney when Attorney Don Brown began inquiring about the missing trial exhibits. When Don Brown informed District Clerk Peggy Stevens that he was going to ask District Attorney Keeshan about the missing exhibits, Peggy Stevens rushed to warn Keeshan at his office. Keeshan and Peggy Stevens then hid in the district attorney’s office and laughed when Don Brown arrived and the District Attorney’s secretary got rid of him. The “project-like” atmosphere culminated on November 22, 1985, when Judge John Martin, at the special request of District Clerk Peggy Stevens, set Petitioner’s execution date for January 16, 1986 — the District Clerk’s birthday. (It should be noted that Judge Martin had no authority to even set Petitioner’s execution date, let alone set the execution to coincide with the District Clerk’s birthday celebration. Judge Martin had no authority because he had voluntarily recused himself from further handling of petitioner’s case in March, 1982, after defense counsel had confronted the Judge, on March 5, 1982, with the knowledge that the Judge had conducted ex parte meetings with the District Attorney regarding Petitioner’s case.)
Based on the demeanor of Judge John Martin the two occasions that he testified, and the credibility determinations that the Court made regarding other witnesses at the evidentiary hearing, the Court finds that Judge Martin’s testimony, perhaps tempered by a motive for self-preservation, was simply not credible.
In McCleskey, a man in Georgia who had been sentenced to die challenged that state’s capital sentencing process on the grounds that the killers of whites are more likely to be given a capital sentence than the killers of blacks.
As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application.
McCleskey, 481 U.S. at 292, 107 S.Ct. at 1766 (emphasis added). The United States Supreme Court rejected the defendant’s reliance on solely statistical evidence for this proposition.14 In reaching this result, the Court set out what is necessary to establish a ”McCleskey ” equal protection claim. First, a defendant must establish “the existence of purposeful discrimination.” McCleskey, 481 U.S. at 292, 107 S.Ct. at 1766. Second, a defendant must make a more particularized showing that “the decision makers in his case acted with discriminatory purpose.” Id.
*929Although there are few procedural barriers to proving an equal protection claim, the quantum of evidence necessary to sustain such a claim is high.
Implementation of these [capital punishment] laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused [or tainted by racial considerations].
McCleskey, 481 U.S. at 297, 107 S.Ct. at 1769 (emphasis added). In weighing the sufficiency of applicant’s evidence in support of this claim, I will jointly consider all evidence which serves to support a type of equal protection violation. In other words, I will consider jury selection, official bias, racial tensions within the courtroom and community, etc.15 I will consider the factual findings made by the hearing judge in the order they were entered on Judge Pickett’s order.
The first two factual findings were that applicant was a black man and that the victim, Cheryl Fergeson, was a 16 year old white girl. These two facts, standing alone, do not establish a claim which would entitle applicant to relief.
The third finding of fact concerned a study conducted by Dr. Sheldon Ekland-Olson indicating that a black man who rapes and kills a white woman is five times more likely than any other person who commits an offense that could be charged as capital murder to receive a death sentence. The hearing judge found the statistical evidence to be credible and persuasive.16 The author of the study admitted, however, that this evidence failed to prove whether applicant was the victim of racial discrimination. Despite this limitation, Dr. Ekland-Olson’s study and testimony establish a risk that applicant was the victim of racial discrimination. This statistical risk may be used as some circumstantial evidence to support applicant’s claim. See McCleskey, 481 U.S. at 291 n. 7, 107 S.Ct. at 1766 n. 7.
The fourth through eighth findings of fact establish the racial composition of the juries in applicant’s two trials for this offense; 17 the existence of a trial manual in the Montgomery County District Attorney’s office which instructed prosecutors to exclude all blacks from criminal juries; that, at the time of applicant’s trials, the Montgomery County District Attorney’s office had a policy of excluding blacks from criminal juries and; that violation of this policy would require explanation to the elected District Attorney; and that no lawyer could remember the presence of a black on a criminal jury other than one Conroe police officer in 1978. Applicant argues that, taken together, these facts constitute proof that the juries in his cases were selected in an unconstitutionally discriminatory manner.
First, we begin by noting that the racial composition of the jury at applicant’s first *930trial could never provide a direct basis of relief from his conviction at the second trial. The remedy available when a defendant proves that his jury was selected in a discriminatory manner is a new trial. The remedy for such a constitutional violation is reversal of the conviction, not a judgment of acquittal. E.g., Whitus v. Georgia, 385 U.S. 545, 553, 87 S.Ct. 643, 648, 17 L.Ed.2d 599 (1967). Because applicant’s relief would not have barred reprosecution,18 he was only entitled to a second trial, something he already received by virtue of the first mistrial. Thus even a valid claim concerning the first trial would not entitle applicant to anything he has not already received.
Second, the jury in the second trial was all-white and the State used peremptory challenges to remove blacks from the panel. This factual finding might, if it arose in a direct appeal, make a prima facie ease that discrimination occurred in the jury selection process and entitle applicant to a hearing at which he could question the prosecutor on his use of peremptory challenges. Batson, 476 U.S. at 79, 106 S.Ct. at 1712. However, the Supreme Court has refused to extend the relaxed evidentiary burden of Batson to convictions that were final when Batson was decided. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Thus, in order for the jury selection process to rise to the level of an equal protection violation, applicant must satisfy the greater burden of proof set out in Swain, 380 U.S. at 223-26, 85 S.Ct. at 837-39.
In order to establish an equal protection violation under Swain, a defendant must prove purposeful discrimination in his trial, Id. at 223-24, 85 S.Ct. at 837-38, and establish that the State’s attorney in his trial has been guilty of discrimination in other cases. Id. at 225-26, 85 S.Ct. at 838-39. The reason for this dual burden is the presumption that the United States Supreme Court established that a prosecutor exercised his peremptory challenges in good faith. Swain, 380 U.S. at 222, 85 S.Ct. at 836-37.
Here, applicant has shown that blacks were excluded from his jury and that the State used peremptory challenges against the black veniremen. Such a showing may rebut the presumption of good faith on the part of a prosecutor. Swain, 380 U.S. at 222, 85 S.Ct. at 836-37. Such a showing, however, does not, by itself, establish purposeful discrimination within the first requirement of Swain nor past discrimination on the part of the prosecutor, as required in the second part of Swain. Id.
Applicant introduced evidence concerning a number of other facts related to jury selection which can be used to satisfy Swain’s requirements for additional proof. Applicant introduced evidence, and this evidence was accepted by the hearing judge, that the Montgomery County District Attorney’s office used a manual which advised prosecutors to exclude blacks from criminal juries. Such a fact is probative of discriminatory intent on the part of the district attorney’s office. Batson, 476 U.S. at 105, 106 S.Ct. at 1727-28 (Marshall, J. concurring).
In addition, applicant introduced evidence, once again accepted by the hearing judge, that District Attorney Keeshan had a policy of excluding blacks from juries and that failure to follow this policy would require that an explanation be made to Keeshan.19 This testimony would seem to *931establish that the prosecutor in applicant’s case has used peremptory challenges in the past to exclude blacks, thus satisfying the second requirement of Swain. 380 U.S. at 226, 85 S.Ct. at 839. Finally, applicant introduced testimony that at least one witness remembered only one black, a Conroe police officer, who had ever served on a criminal jury in Montgomery County. This evidence is only circumstantial evidence of applicant’s contention that jury selection in Montgomery County is tainted by racial consideration. Because defense attorney’s can, and do, challenge black veniremen, the absence of blacks on past juries does not establish that the State is solely responsible for this historic phenomenon. Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38.
The evidence adduced by applicant would appear to make out a prima facie case under Swain, and the hearing judge rejected the State’s rebuttal evidence on this issue. Applicant does not, however, claim that he is entitled to relief under this theory. Instead, applicant uses the facts surrounding jury selection in order to support a general claim that racial discrimination influenced the decision makers in his trial. We agree with applicant that these facts support an inference [emphasis mine] of discriminatory intent.
The ninth finding of fact states that the lone juror who voted to acquit applicant in the first trial, William Shreck,20 was the victim of racially motivated harassment after the declaration of a mistrial. The record clearly supports a finding that Shreck received phone calls reflecting racial animus, and from these calls, one could infer that this animus extended to some portion of the local population. This evidence, however, does have its limitations. Shreck knew neither how many people were involved in making the telephone calls nor who the people were. Thus, these incidents serve as only a crude barometer of the public climate. We agree with applicant that these calls serve as some indication that racial hostilities were at work in Conroe, but our inability to judge the extent to which these incidents reflected popular opinion at the time of applicant’s second trial and the speculative inference about what degree of popular opinion might have affected the course of the trial, prevents me from giving this evidence more than token significance.
Shreck’s remaining testimony concerned his failed attempt to secure employment with Montgomery County and Keeshan’s hostile attitude toward him. While the record supports the finding that Keeshan was hostile to Shreck, there is no indication that Keeshan’s feelings were racially motivated. I find it equally plausible that Keeshan resented Shreck for necessitating a second trial. This resentment over lost effort and the expense and trouble of a second trial provide a race neutral explanation of Keeshan’s actions at the job interview. There is no necessity to look beyond the record and into Keeshan’s soul and find that he was motivated by race in this instance.
The tenth finding of fact concerns a police officer’s statement to Henry Peace concerning who perpetrated the murder. The officer said, referring to applicant, that “The nigger was elected.” On its face, this statement reflects racial animus on the part of one of the State’s investigators. An examination of the context of the state*932ment, however, suggests that the statement is less indicative of a racially motivated investigation than would appear at first blush. The testimony concerning this incident reveals:
Q: (By Mr. DeGeurin) Mr. Peace, let me repeat my question as best I can. After you, when you and Clarence Brandley first spoke to any police officer, did any police officer indicate to you who a suspect would be in the case?
A: Yes, sir.
Q: Can you tell the Court what was said to you by the police officer? -
A: Yes, sir. I was on the left hand side and ...
Q: Just take you time, Mr. Peace.
A: I don’t remember which side I was on now. I can tell what you [sic] the police officer did say, though.
Q: What did he say?
A: He told me that I wasn’t strong enough or tall enough and that they had a lot of pressure put on them and Mr. — Well, they called him—
THE WITNESS: Your Honor, can I say when [sic: what] they called him?
THE COURT: Yes, sir.
A: (Continuing) They said that the nigger was tall enough and strong enough and he was elected.
⅝ Sfc Jj< ⅝ ⅜! ⅝
Q: The answer was?
A: I said that they did say that the nigger would be the one that was. elected or is elected or something like that.
Q: Did he also say to Mr. Brandley in your presence, You're a colored guy, Conroe doesn’t like colored people, so nigger, you’re elected?
A: I don’t remember that.
Although the police officer’s statement that “the nigger is elected” shows the grossest of racial insensitivity, the context of the statement indicates that applicant was “elected” because of his physical ability to commit the crime, not his race. Although Peace’s testimony raises a very strong inference that the police officer in question was a racist, it also illustrates that his focus on applicant as a suspect was grounded in legitimate and race-neutral reasons. This incident fails to establish that any decision maker was swayed in the exercise of his discretion by racial considerations. Thus, this factor does not contribute to applicant’s claim under McCleskey.
In further support of his McCleskey claim, applicant complains that his initial bond was set at $30,000. Applicant attempted to post bond but the Sheriff of Montgomery County refused to accept the bond. An ex parte order was issued by Judge Alworth, raising the required bond to $70,000. In particular, applicant complains that the testimony at the evidentiary hearing revealed that the Sheriff of Montgomery County, Gene Reaves, and James Keeshan, opposed applicant’s posting of bond because of his race. When applicant attempted to post bond, Sheriff Reaves stated that “the little Nigger [sic] doesn’t belong on the ground.” District Attorney Keeshan acknowledged that he was present when the sheriff used this phrase, but he denied using this phrase himself. Keeshan subsequently met with Judge Al-worth without notice to defense counsel. The ex parte order raising the required bond amount was issued after this meeting. Judge Pickett found in favor of the applicant on these disputed facts.
Applicant was subsequently convicted after the allegedly wrongful denial of bond. Because of applicant’s subsequent conviction, this issue is moot and provides no independent avenue for relief to applicant. Wheeler v. State, 496 S.W.2d 85 (Tex.Cr.App.1973); Waddle v. State, 482 S.W.2d 647 (Tex.Cr.App.1972).
The twelfth finding of fact sets out some evidence that the courtroom atmosphere at applicant’s first trial was charged with racial tension. However, this evidence does not show that any decision maker was affected by this tension. An example of the *933shortcomings of this evidence is the testimony of Janet Dial.
Her testimony provided the basis for the finding that a woman was saying “kill the nigger, kill the nigger....” While Dial testified that a woman in the back of the courtroom said this, she could not say whether any member of the jury could hear the statement. Similarly, Rev. Robinson’s testimony concerning deputies following black spectators from the courtroom fails to establish that the jury was aware of this practice or that it affected any of the participants in any way. I am unable to assign a definite degree of weight to this evidence because of the grossly speculative nature of the inferences required.
The thirteenth finding of fact concerns the “team-like” attitude between the prosecutor’s office and court personnel. I feel that this evidence should be treated identically to that concerning Keeshan’s conduct at Shreck’s job interview. While the testimony suggests improper conduct on the part of court staff, it fails to establish that any of this behavior was motivated by racial considerations. Absent a showing that links their actions to race, this evidence should not be considered in regard to a claim under McCleskey.
I would reject the hearing judge’s finding that:
the color of Clarence Brandley’s skin was a substantial factor which pervaded all aspects of the State’s capital prosecution against him, and was an impermissible factor which significantly influence the investigation, trial and post trial proceedings of Petitioner’s case.
The record in this cause simply does not establish “exceptionally clear proof” of applicant’s claim as required by McCleskey. Applicant should be denied relief under this claim.
For all of these reasons, I dissent.
McCORMICK, P.J., and W.C. DAVIS, J., join in this opinion.. The hearing judge also made findings concerning the State’s failure to take blood and hair samples from other possible suspects and the presence of type A blood on the victim’s clothing. These findings do not bear on applicant’s allegation as plead in his application for writ of habeas corpus. Such allegations, if they had been raised in this point, would not merit granting applicant relief.
If the court meant by this statement that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here [sexual assault] is no different than a prosecution for drunk driving that rests on police observa*915tion alone; the defendant is free to argue to the finder of fact that a breathalizer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.
Arizona v. Youngblood, — U.S. -, 109 S.Ct. 333, 338, 102 L.Ed.2d 281 (1988) (emphasis added); see also discussion of applicant’s fifth allegation, post.
. In his concurring opinion in Arizona v. Youngblood, Justice Stevens explains why limiting the Court’s holding to "bad faith” cases is ample protection for future defendants.
[A]t the time the police failed to refrigerate the victim’s clothing, and thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime. Indeed, at that time it was more likely that the evidence would have been useful to the police — who were still conducting an investigation — and to the prosecutor — who would later bear the burden of establishing guilt beyond a reasonable doubt — than to the defendant. In cases such as this, even without a prophylactic sanction such as dismissal of the indictment, the State has a strong incentive to preserve the evidence.
Arizona v. Youngblood, — U.S. at -, 109 S.Ct. at 338 (Stevens, J. concurring).
3. The majority argues that we should defer to the hearing judge’s findings if they are supported by the record. However, the majority’s authority for this proposition is limited to -factual findings. I am aware of no authority that would require us to defer to legal conclusions made by a lower court, and the Supreme Court seems to regard the question of materiality as either a legal issue or one of mixed law and fact. Because they have set out this duty for the reviewing court, materiality is an issue for us to decide de novo.
. In Adams, this Court noted that the Supreme Court has applied a different standard to the state’s “knowing” use of perjured testimony— whether the testimony might have affected the verdict. 768 S.W.2d at 290. Applicant does not argue that he is entitled to relief based on the State’s knowing use of perjured testimony. To this extent, this less-restrictive standard for constitutional error is inapplicable to this case.
.The majority also expends a significant amount of effort discussing various investigative leads not pursued during the investigation of this crime. The majority characterizes its use of these factors to bolster its position that the *918investigation was conducted with a blind focus. I disagree with this position.
Clearly, there is no constitutional necessity to exhaust possible leads or to conduct specific scientific tests. Youngblood, - U.S. at -, 109 S.Ct. at 338.
By discussing these points the majority does not clarify this case by providing circumstantial evidence of a generally slipshod investigation. Instead, it changes the opinion’s focus from whether the pretrial investigative procedures were constitutional, to whether they were, in some subjective sense, "good.” Our duty is neither to castigate nor praise the State's investigation in this case. Our job is limited to looking for constitutional error. This discussion of “lost leads" is simply a red herring.
. The hearing judge did not make a specific finding concerning the materiality of any alleged constitutional errors.
. The other two janitors were Henry Peace and applicant. Peace did not participate in the walk-through because of the distance that he lived from the school and because all written statements placed him apart from Acreman, Martinez, and Sessum at the relevant times.
. One possible explanation for Sessum’s account changing the amount of time that they waited at the vocational building for the keys from five to forty-five minutes is testimony that Sessum was napping during this period.
. Sessum is not without credibility problems. Since testifying in the first trial, he has recanted his previous version of the facts. He now maintains that Acreman and another man, presumably Robinson, abducted the girl and forced her into the bathroom. He attributes his change in testimony to an attack of conscience, and the threats that caused him to testify in this previous manner are no longer as important as being at peace with himself. Regardless of what the truth is, nothing suggests that the walk-through produced these conflicting versions.
Sessum also testified at the writ hearing that he felt intimidated by Ranger Styles to conform his statement to those of the other janitors. Even if this is true, Sessum's failure to testify at the trial underlying this writ precludes applicant from obtaining relief based on Sessum’s participation in the walk-through.
. Like Sessum, Acreman has subsequently changed his story about what occurred on the day of the murder. On March 17 and 20, 1987, Acreman said that he saw Dexter Robinson at the school that day and that Robinson grabbed Ferguson and took her into the bathroom. Since that time, Acreman has again changed his version of events and claims that things happened in the manner that he had previously testified. Nothing in the record suggests that the walk-through is the source of these conflicting statements. When Acreman first recanted, he attributed the difference to a change of heart brought about by his conscience. When he recanted this recantation, he attributed the different story to intimidation on the part of applicant’s investigators. While the accuracy of Acreman’s testimony is in serious doubt, the doubts do not arise as a result of the walk-through.
. As noted by the majority, Martinez has since changed certain details in his testimony. Nothing in the record suggests that these changes were related to any corrupting influence of the walk-through.
. As a collateral matter, not raised in applicant’s writ, the majority suggests that the State knowingly used perjured testimony when Peace testified at trial, and they note that the hearing judge found that Peace perjured himself at trial. In order to reverse a conviction because of the use of perjured testimony, the defendant must establish that the perjured testimony was “known to be such by representatives of the State.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. Assuming, arguendo, that this issue is properly before this Court, applicant fails to prove a knowing use of perjured testimony.
At the hearing, Peace admitted to having lied twice under oath. At the first trial, he lied about an incident, not connected with the murder, in which he showed a fellow janitor a handgun while at school. He said that he had displayed a picture of a gun rather than an actual gun. At the second trial, the State made it known to the jury that Peace had shown a real gun, and the jury heard such testimony directly from Peace. There is nothing to suggest that the State knowingly used this perjured testimony. To the contrary, when the State learned of the inaccuracy they corrected the erroneous testimony in a forthright and candid manner. The Supreme Court has implicitly stated that such a procedure would not violate the constitution. See Napue, 360 U.S. at 269, 79 S.Ct. at 1177.
The second incident of perjury has much more serious implications. At trial, Peace was asked standard questions about the voluntariness of his testimony and the absence of any coercion. Peace said he had not been threatened in any way. Prior to trial, however, Peace had complained to the District Attorney’s office about Styles physically abusing and threatening him. Thus, when Peace answered these questions, he lied. I do not feel that this incident constitutes the knowing used of perjured testimony. The District Attorney’s position has consistently been that Peace's accusations are false. Ranger Styles denies that he threatened Peace, and there is simply no other evidence pointing in either direction. While the record supports the hearing judge’s finding that Styles assaulted Peace, it also supports the opposite finding. To this extent, the State has a legitimate argument that they did not knowingly use perjured testimony. Our acceptance of the hearing judge's factual findings does not make those findings true in some objective sense, nor does it mean that all parties, at all times, believed or had knowledge of the facts as determined in Judge Pickett's order. There is no factual basis for the majority’s assertion that the State knew this testimony to be false, and the trial judge made no such finding.
. Applicant does not allege in his writ that failure to disclose Bradford's statement constituted a Brady violation. Instead, he argues that the failure to investigate the statement is evidence of the blind focus of the State's investigation. As discussed above, failure to explore possible leads is not a constitutional violation. Youngblood, — U.S. at -, 109 S.Ct. at 338; see also note 3, ante.
. Applicant’s equal protection claim is as broad in scope as that rejected in McCleskey. We wish to note, however, that his argument and supporting evidence goes much farther than that of the defendant in McCleskey. Applicant not only provided a study which supported the findings of the Baldus study, relied upon in McCleskey, but he introduced other types of evidence suggesting the presence of racial discrimination in his particular case.
.The evidence in support of any given type of equal protection violation need not be sufficient to constitute an independent constitutional violation. For example, the facts in the record may or may not be sufficient to entitle applicant to relief under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Regardless of the sufficiency of the facts to support a claim under Swain, those facts are relevant to applicant’s contention that race was a factor in the entire proceeding against him. The totality of factors present in the trial underlying the instant cause are relevant to applicant's claim irrespective of the sufficiency of any individual factor. See Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986); Washington v. Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
. Unlike the showing of a prima facie case of discrimination in a Batson setting, introduction, and even acceptance, of such statistical evidence requires no rebuttal on the part of the State absent additional and stronger evidence of discrimination. McCleskey, 481 U.S. at 296 n. 17, 107 S.Ct. at 1768-69 n. 17.
. Applicant’s first trial for the offense underlying this writ application ended in a mistrial because the jury was deadlocked on the issue of guilt/innocence. Applicant was convicted of capital murder and sentenced to death as the result of his second trial. Applicant is challenging the conviction arising from his second trial in the instant cause. The juries in both trials were all-white.
. Cf. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
. The hearing judge’s finding that there was a policy in the Montgomery County District Attorney's office is somewhat misleading. Frank Robbin, the witness upon whom the hearing judge based this finding, testified that it was his opinion that failure to challenge all blacks would require an explanation to Keeshan.
Q: [By Mr. DeGeurin] Now, if you were, while you were working for Judge Keeshan, then District Attorney Keeshan, if you were to allow a Black to remain on the jury where you had a Black defendant, what would you expect Mr. Keeshan to do?
A: Certainly, that would have been highly unusual. I don’t recall it ever being done but I’m certain that Jim [Keeshan] would have asked why, what was your reasoning. What *931was the reason for leaving this particular juror as opposed to using a peremptory challenge.
Q: Do I understand then that as Assistant District Attorney, you would have to explain why you would have to explain why you would do such a stunt as to leave a Black man on the jury where you had a Black defendant?
A: He’d want to know why, he'd want some explanation. I’m not saying that there may have been an explanation that satisfied him, but that was highly unusual and he would have wanted to know why.
Thus, this testimony supports an inference of a de facto policy to discriminate against black veniremen and defendants; however, the existence of a de jure policy is not supported by the record.
. The statement of facts spells this former juror’s name "Sreck,” and the findings of fact designate him as "Shreck.” I am unable to determine which is the correct spelling.