# Bess v. Director, TDCJ-CID

> District Court, N.D. Texas · March 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10448565

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- recognizing the continued vitality of the Teague nonretroactivity doctrine under AEDPA

## Opinion text

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DONALD ANDREW BESS §
v. CIVIL ACTION NO, 3:16-CV-1150-S_
LORIE DAVIS, Director TDCJ-CID
MEMORANDUM OPINION AND ORDER
Petitioner Donald Andrew Bess filed this federal habeas corpus action pursuant 28 U.S.C.
§ 2254 challenging his June 2010 Dallas County conviction for capital murder and sentence of
death. For the reasons discussed below, Bess is not entitled to federal habeas corpus relief or a
Certificate of Appealability from this Court.
I. BACKGROUND
A. The Offense
The facts and circumstances of Bess’s capital offense are set forth in significant detail in
the Texas Court of Criminal Appeals’ opinion affirming his conviction and death senfence. Bess
vy. State, No. AP-76,377, 2013 WL 827479, at *1-11 (Tex. Crim. App. Mar. 6, 2013), cert. denied,
571 U.S. 1132 (2014). Bess was serving a term of life imprisonment for an unrelated aggravated
sexual assault when he was convicted in June 2010, based on DNA evidence of the capital murder
of Angela Samota in October 1984. The uncontroverted evidence presented at trial showed that
Samota’s nude body was discovered covered in blood on her bed inside her locked condominium
by law enforcement officers responding to a call from Samota’s boyfriend, who became concerned
after she called him in the early morning hours of October 13, 1984, to say she had allowed a man
into her apartment, suddenly hung up after promising to call him right back, but then failed to do
Samota’s autopsy and subsequent forensic examination revealed that she had been stabbed

} Samota’s boyfriend Benjamin McCall testified without contradiction at the guilt-innocence phase of
Petitioner’s 2010 capital murder trial that (1} he had been dating Samota since January 1984; (2) Samota was very

eighteen times in the chest, and Petitioner’s semen (including a large number of intact sperm) was
found in her vaginal vault.?

active in her sorority, taking a challenging double major, and working part time; (3) Samota invited him to go out with
her and some friends the evening before her murder but he declined because he had a business appointment early the
next morning; (4) the evening before her murder, Samota called him and asked him to get her and her friends into a
private club in which McCall had a membership; (5) he made the call but did not go to the club; (6) around one-thirty
the next morning, Samota knocked on the door of his apartment; (7) when he answered the door, Samota playfully
stated that she had come by to bug him on her way home; (8) they engaged in a very brief conversation and Samota
left; (9) about fifteen minutes later, Samota called him and said “talk to me”; (10) she explained that she had allowed
aman into her condo to use the bathroom and make a call; (11) after asking McCall if he thought there was a payphone
at a convenience store located near her residence, Samota hung up abruptly after promising to call him right back;
(12) when Samota failed to do so, McCall called Samota but could not get an answer; (13) McCall threw on clothes
and drove to Samota’s condo, calling her from a cell phone in his track; (14) he was unable to get an answer;
(15) McCall arrived at her condo around two a.m. but was unable to get a response when he beat on her locked front
door; (16) he checked her back door but found it locked as well; (17) he drove to the convenience store she had
mentioned in their brief telephone call and then returned to her condo; (18) he found her car in the parking lot and
telephoned police (the audio recording of McCall’s call to police at 2:17 a.m, on October 13, 1984 was admitted into
evidence and played for the jury); (19) when police arrived, they waited for one of the officers to obtain a key to
Samota’s condo from a manager: (20) he remained just inside the front door while police searched the condo and
found Samota’s body; and (21) he gave police a full statement and consented to searches of his truck and apartment
as well as giving hair and DNA samples. Statement of Facts from Petitioner’s Trial (henceforth “S.F. Trial”), test.
of Benjamin Waring McCall, vol. 42 at 178-218; vol. 43 at 8-33.
The two Dallas Police Officers dispatched to Samota’s condo testified that (1) they met McCall outside
Samota’s condo at 2:40 a.m. and obtained a key after they were unable to get a response at Samota’s locked door;
(2) when they searched Samota’s condo they found her lifeless body lying on her bed face up with her eyes open,
unclothed and covered in blood; (3) her legs were hanging off the bed; (4) blood residue was observed in the bathroom
adjacent to her bedroom; (5) a single woman’s shoe was found in the living area; and (6) her other shoe and Samota’s
clothing was found on the floor beside her bed. S.F. Trial, test. of Kenneth Budjenska, vol. 43 at 53-103; testimony
of Janice Crowther, vol. 43 at 104-20.
2 The forensic pathologist who performed Samota’s autopsy testified that (1) there was dried blood on
Samota’s chest and neck; (2) blood was smeared on Samota’s face and leg along with some blood spatter on her body,
(3) Samota suffered several deep chest wounds; (4) Samota suffered eighteen stab wounds to the chest and breast area
with a single-edged knife or knife-like object, many of which overlapped; (5) it appeared that a hand or some other
object had covered Samota’s face during the stabbing; (6) eight of the stab wounds entered Samota’s heart and five of
those wounds entered Samota’s heart and left lung; (7) two of Samota’s chest wounds went through the sternum,
requiring considerable force; (8) the deepest stab wound penetrated four to seven inches deep and completely
penetrated the heart; (9) it was not possible to determine the order in which the stab wounds occurred; (10) Samota’s
blood alcohol level was .09 and her vitreous alcohol level was .30; (10) viscous material was collected from both
Samota’s mouth and vagina; (11) swabs were obtained from Samota’s mouth and vagina; (12) in living individuals,
semen breaks down from its own enzymes and vaginal enzymes under an hour; (13) there was nothing about the
appearance of the viscous material (described as a “sticky blob”) obtained from Samota’s vagina suggesting that the
material had begun to liquefy; (14) laboratory examination of the vaginal swab revealed both a high concentration of
phosphates and a large number of intact sperm, which confirmed that Samota had intercourse at or near the time of
her fatal injuries; (15} because Samota’s body was lying down, it did not appear that anything had drained out of her
body post-intercourse; (16) while there were no injuries to Samota’s cervix or external genitalia, the absence of such
injuries is not determinative of whether there was consensual versus non-consensual intercourse; (17) the secretions
in Samota’s mouth were not semen; (18) the physical evidence established Samota was killed very close in time to
her having intercourse; and (19) the manner of Samota’s death was homicide and the cause of her death was multiple
stab wounds to her chest. S.F. Trial, test. of Dr. M.G.F. Gilliland, vol. 43 at 165-239; vol. 44 at 14-31.

B. The Indictment
On January 20, 2010, a Dallas County Grand Jury indicted Petitioner on a single count of
capital murder—intentionally causing Samota’s death by stabbing Samota with a knife, or an
object unknown to the grand jury, in the course of committing and attempting to commit sexual
assault upon Samota,?
C. Guilt-Innocence Phase of Trial
I, Prosecution’s Case
In addition to the testimony summarized above, the prosecution presented testimony during
the guilt-innocence phase of Petitioner’s capital murder trial from a pair of Samota’s acquaintances
detailing Samota’s movements the day before her murder, including her movements in the hours
immediately preceding her death. A Dallas Police Department cold case officer testified that

The forensic serologist who examined materials collected during Samota’s autopsy, including the rape kit,
and other physical evidence testified that (1) there was no trace of blood or hair in McCall’s fingernail scrapings;
(2) Samota’s bed sheets contained blood but no seminal fluid; (3) McCall and another of Samota’s former boyfriends
were excluded as possible sources of the semen found inside Samota’s vagina because of their blood type; (4) two
other male acquaintances of Samota were excluded as possible sources because they were both non-secretors;
(5) Samota’s vaginal swab was loaded with intact sperm, establishing the sample was taken at or near the time of
intercourse because both the high concentration of acid phosphates and large number of intact sperm in the vaginal
swab; (6) seminal fluid and sperm begin to deteriorate within three hours in a living victim; and (7) no DNA analysis
of Samota’s vaginal swab was done in 1986. S.F. Trial, test. of Sarah Williams, vol. 44 at 53-81.
A veteran OBGYN with experience conducting hundreds of sexual assault examinations testified as an expert
that (1) the vast majority of sexual assault victims show no sign of injury or trauma to the external genitalia; (2) she
would not expect to find intact sperm inside a sexual assault victim within four to six hours after an assault; and (3) she
had seen patients within one to two hours after a sexual assault and had never seen a large number of intact sperm or
coagulum (congealed semen) because semen Hquefies very quickly after intercourse in a live woman due to natural
movements, gravity, urination, and bowel movements, which all cause drainage. S.F. Trial, test. of Dr. Claudia
Werner, vol. 44 at 90-116.
3 Petitioner’s indictment appears among the state court records submitted by Respondent at page 00002 of
the first volume of the Clerk’s Record. 1n addition to the capital murder charge, Petitioner’s indictment included an
enhancement paragraph alleging Petitioner had been convicted in Harris County in March 1978 of the offense of
aggravated rape. For unknown reasons, Respondent failed to electronically file the volume of state court records
containing Petitioner’s indictment.
‘ A partner in a Houston law firm, Ana Kadaia, who had been friends with Samota at SMU testified that (1)
on October 12, 1984, she and Samota went to a late lunch with one of their professors, and then went to Samota’s
residence and took a nap; (2) they planned to go out that evening; (3) Samota put on a black silk jumpsuit and black
pumps; (4) Samota’s friend Russell Buchanan joined them at Samota’s condo; (5) she, Samota, and Buchanan went

she interviewed Petitioner in 2008, that Petitioner admitted he was in the Dallas area around the
time of Samota’s murder, and that she obtained a search warrant for a buccal swab from Petitioner.°
The forensic biologist who examined Samota’s vaginal swab and Petitioner’s buccal swab testified
without contradiction that Petitioner’s DNA matched the DNA found in the sperm fraction of
Samota’s vaginal swab.®
2. The Defense’s Evidence
The defense presented testimony from an employee of the Rio Room club and a field agent
for the Dallas County Medical Examiner’s office.’ The defense then called a forensic pathologist

to Buchanan’s place so that he could change before they went out; (6) the three of them went to Bennigan’s restaurant,
Studebaker’s (a nightclub), and then to the Rio Room (another nightclub); (7) Samota drank but not excessively as
she was driving; (8) they left the Rie Room sometime between midnight and twelve-thirty; (9) Samota had to be up
early the next morning to travel to Waco to attend a college football game; (10) Samota dropped off Buchanan at his
residence; (11) Samota then went by her apartment to collect a curling iron and then took Kadala home, dropping her
off between twelve-forty-five and one-thirty in the morning; (12) she learned of Samota’s murder the following day
after she returned to Dallas from the football game in Waco; and (13) Samota spoke often about McCall and her other
male acquaintances but never mentioned knowing Petitioner. S.F. Trial, test. of Ana Elena Kadala, vol. 42 at 69-133.
Russell Buchanan testified that (1) he met Samota in early-October 1984 through his roommate’s girlfriend;
(2) Samota called to invite him to join her and a female friend for drinks; (3) he walked to Samota’s residence but
discovered he was underdressed; (4) they went back to his place so he could change; (5) they then went out to the
Boardwalk Beach club and then to the Rio Room; (6) they stayed at the Ric Room until one or one-thirty and then
went home; (7) they were not drinking heavily because the bar was crowded; (8) he attended a wedding in Dallas the
next morning and then flew home to Houston; (9) he did not learn of Samota’s murder until he returned to Dallas and
police officers arrived at his front door; (10) he furnished blood and saliva samples and cooperated with police for
many months until he retained an attorney; and (11) neither Samota nor her female friend appeared to be intoxicated
when they dropped him off that night. S.F. Trial, test. of Russell Buchanan, vol. 42 at 134-76,
5 An officer with the Dallas Police Department’s cold case unit testified without contradiction that (1} a
former roommate of Samota’s contacted the cold case unit in July 2006 about the case; (2) she contacted the Southwest
Institute of Forensic Sciences (“SWIFS”) and learned a vaginal swab from Samota’s autopsy had been preserved,
(3) she obtained a search warrant for Petitioner’s DNA and, in April 2008, interviewed Petitioner after Mirandizing
Petitioner; (4} she obtained a buccal swab from Petitioner; (5) Petitioner signed a statement in which he admitted to
being in the Dallas area in March 1984; (6) Petitioner’s demeanor during their interview changed dramatically when
she informed him that she was investigating an offense committed on October 13, 1984; and (7) the results of
Petitioner’s DNA test results came back in May 2008. S.F. Trial, test. of Linda Crum, voi. 45 at 21-63.
6 The former SWIFS forensic biologist who examined Petitioner’s buccal swab and Samota’s vaginal swab
testified without contradiction that (1) the DNA profile for the sperm fraction of Samota’s vaginal swab showed a
single male contributed that sample and (2) the DNA profile of the sperm cell fraction of Samota’s vaginal swab
matched the DNA profile of Petitioner. §S.F. Trial, test. of Angela Fitzwater, vol. 45 at 64-84,
7 Anemployee of the Rio Room nightclub testified that (1) he knew Samota through his girlfriend and Samota
did not need McCall’s assistance to enter the club when he was working; (2) Samota came in the night of her murder

who testified that (1) Samota’s blood alcohol level was out of line with her vitreous alcohol level;
(2) ejaculate liquefies in fifteen to thirty minutes; (3) sperm survives in cervical mucous longer
than in vaginal secretions; (4) just because there were viscous secretions in the vagina did not mean
sexual activity occurred in close proximity to death; (5) in living individuals, spermatozoa can
survive twenty-four to seventy-two hours; (6) intact sperm can be found twenty-three to one-
hundred-twenty hours after intercourse in living individuals; (7) the viscous material in Samota’s
vagina was more likely cervical mucous than ejaculate; (8) high levels of acid phosphate are
possible up to four days after intercourse; (9) if sex occurred near the time of Samota’s death, he
would expect to find leakage from the vaginal vault and secretions on the bed sheets; (10) sperm
can remain motile up to sixteen hours in cervical mucous but Samota’s autopsy report makes no
mention of sperm motility; (11) there is only a slim chance of finding motile sperm after twelve
hours after sex; (12) if a hand had been placed over Samota’s mouth, he would expect to find
damage and bruising to the lips; (13) this case is atypical of a sexual assault because there was no
bruising to the inner aspects of the thighs or head; (14) it appeared to him that, based upon his
review of the autopsy report and photographs from autopsy and the crime scene, Samota was
stabbed while sitting in an upright position and fell toward the head board; and (15) the number of
stab wounds suggested to him that this was “overkill,” a result of jealous frenzy.*

without McCall wearing a backless outfit; (3) Samota left after midnight; and (4) Samota did not appear to be under
the influence. S.F. Trial, test. of David Skelton, vol. 45 at 91-104.
A former field agent for the Dallas County medical Examiner’s office testified that (1) he pronounced Samota
dead at the crime scene; (2) Samota’s telephone appeared to have been wiped clean; and (3) a note was found at the
crime scene, stating that Samota had a date with someone other than her boyfriend and her boyfriend was jealous.
S.F, Trial, test. of Michael Darst, vol. 45 at 105-14.
8 SF. Trial, test. of Dr. James Traylor, vol. 46 at 23-61,93-101. On cross-examination, Dr. Traylor admitted
that (1) sperm last longer post-mortem than in a living vaginal vault; (2) he had trouble with the prosecution’s rape
scenario because there was no external trauma to Samota’s genitalia; (3) he could not tell the time of intercourse from
examination of a vaginal smear because there were no studies discussing the quantity of intact sperm over fime; (4)
he did not examine Samota’s vaginal swab; (5) his opinions regarding the location of Samota’s body were based on

3. The Verdict
On June 14, 2010, the jury returned its verdict, finding Petitioner guilty of capital murder,
as charged in the indictment.”
D, Punishment Phase of Triai
The punishment phase of Petitioner’s capital murder trial commenced on June 15, 2010.
i. Prosecution’s Case-in-Chief
At the punishment phase of Petitioner’s capital murder trial, the prosecution presented
testimony from (1) a former Houston police officer regarding Petitioner’s January 1977 aggravated
kidnapping with intent to commit sexual assault (an offense to which Petitioner pleaded guilty and
for which he received a sentence of 25 years); (2) the victim of Petitioner’s unrelated September
1977 Harris County sexual assault (another offense to which Petitioner pleaded guilty and for
which he received a 25-year sentence);'! (3) a retired [DCJ employee regarding an August 20,

the crime scene photographs; (6) this case is atypical of sexual assault because Samota’s legs were together, and there
was no bludgeoning of the head or strangulation or mutilation; (7) only a small percentage of rapes involve genital
injury; (8) he was unaware of Samota’s activities in the hours leading up to her murder; (9) the presence of sperm in
Samota’s vaginal vault does not resolve the issue of consensual versus non-consensual intercourse; (10) he did not
believe sex occurred on the bed because no seminal fluid was recovered from the sheets; and (11) the average length
of time sperm can be detected inside a dead body ranges from twenty-three hours to five days. Ja. at 61-93.
9 Id. at 164-65, The jury’s verdict form from the guilt-innocence phase of Petitioner’s trial appears among
the state court records at page 85 of the first volume in the Clerk’s Record.
10 More specifically, the former Houston police officer testified that (1) he received a call about an aggravated
kidnapping on January 20, 1977; (2) when he interviewed the victim, initially, she was hysterical; (3) eventually, she
identified her assailant as 25-30 years old, 230 pounds, and about six feet tall with a large frame, gold rimmed glasses,
a beard and mustache, and dark brown with gray hair; (4) the victim described the suspect’s vehicle as a 1975 Ford
pickup truck; (5) after Petitioner was arrested in September 1977, the victim identified Petitioner in a lineup; and
(6) Petitioner pleaded guilty and received a sentence of 25 years. S.F. Trial, test. of Ronald Masterson, vol. 47 at 39-
42: vol. 48 at 4-11.
\ Another of Petitioner’s victims testified that (1) in September 1977 she lived in the Montrose section of
Houston an apartment owned by Petitioner’s aunts; (2) late on the evening of September 1, 1977, Petitioner came to
her door and asked for a glass of water; (3) when she turned to get him the water, he stepped inside and locked her
door behind him; (4) after she gave him the water, he grabbed her face with his hand, covering her mouth, and told
her to go the bedroom; (3) he threw her on the floor; (6) she became passive; (7) he then grabbed her and raped her
on the bed; (8) she was in shock afterward but managed to call a friend who took her to the police; (9) on September

1983 incident in which Petitioner (a) directed vulgar language toward a guard; (b) when
confronted, replied that he would talk about guards any way he felt like; (c) pleaded guilty during
an ensuing disciplinary proceeding to using vulgar language; and (d) received a loss of access to
the prison craft shop;'? (4) another retired TDCJ employee about (a) a July 6, 1988 incident in
which Petitioner defiantly refused to obey orders that he stand behind a line and (b) a February 10,
1977 incident in which Petitioner defiantly refused to obey repeated orders to put up gym
equipment and stop washing his tee shirt ina sink; (5) another retired TDCJ employee about an
October 3, 1986 incident in which Petitioner directed profanity toward a guard;'* (6) a pair of
former correctional officers about an incident on December 30, 1996, in which Petitioner refused

a female officer’s order to close a door and responded to that order by stating “Bitch, I don’t have
to do a goddam thing you tell me to do. [’ve got a life sentence, and no one’s gonna tell me what
to do”;!5 (7) a TDCI correctional officer about an incident on November 5, 1997, in which

13, 1977 she identified Petitioner in a police lineup; (10) during the assault, she managed to bite Petitioner’s hand;
(11) in 1978, Petitioner pleaded guilty in her case and received a 25-year sentence; and (12) she was living in another
state and was not contacted when Petitioner was tried on a separate charge in 1986. S.F. Trial, test.of □□□
vol. 48 at 12-38.
2 SF. Trial, test. of Clifton Palmer McClendon, vol. 48 at 39-48.
13 $F. Trial, test. of Norma Bienvenue, vol. 48 at 49-66, 75-77. On cross-examination, Petitioner’s trial
counsel elicited testimony from Bienvenue that (1) both of the disciplinary infractions in question were considered
minor; (2) Petitioner’s punishment in both cases was a loss of commissary privileges; (3) from 1988 to 1997,
Petitioner’s housing status declined and he was moved from the most favorable to the least favorable housing unit in
his prison unit; and (4) no weapon was involved in either of Petitioner’s infractions, Id. at 67-75, 77-78.
4 SF, Trial, test. of Donna Pavelock, vol. 49 at 6-11, 14-15, Pavelock also testified on direct examination
that (1) Petitioner’s demeanor on the date in question was “evil” and (2) Petitioner was never respectful, never asked
for anything but, instead, was always demanding. /d. at 10-11. On cross-examination, Ms. Pavelock admitted that
the only punishment Petitioner received as a result of the incident in question was a loss of 15 days of commissary
privileges. fd at 11-14.
'S $F. Trial, test. Jerry Dominy, vol. 49 at 16-20, 21-22. Dominy also testified on direct that Petitioner’s
verbal tone on the date in question was aggressive and loud; (2) Petitioner’s reputation at the TDCJ’s Elis Unit was
consistent with what he witnessed that day; and (3) Petitioner had more problems with female guards than male guards.
Id. at 18-19, 22. On cross-examination, Petitioner’s trial counsel elicited testimony from Dominy that this was the
only incident Dominy ever witnessed involving Petitioner during the many years he worked at the Ellis Unit. □□□ at

Petitioner joined a large group of inmates who refused to get off a truck and go to work in the
fields despite numerous orders and threats from guards;!® (8) a female TDCJ employee about an
incident January 15, 1999, in which Petitioner was charged with threatening an officer verbally
and received 15 days in solitary, a loss of 6 days of good conduct time, and a loss of 30 days of
commissary privileges;'? (9) a Dallas police officer who interviewed Petitioner in April 2008
about the 1984 capital murder of Angela Samota, who testified Petitioner (a) denied ever being
violent during sex; (b) initially displayed a defiant, arrogant demeanor during the interview; but
(c) changed his demeanor and became “more forward” when she asked about his activities on
October 12-13, 1984;!8 (10) a TDCJ inmate and another witness who each testified about an
incident April 16, 2010, during which Petitioner called the inmate a “f—ing piece of s-—t” and
made a slashing gesture across his own throat when Petitioner saw the inmate in a holding cell at
the Dallas County Jail;!? and (11) a nurse employed at a TDCJ Unit about an incident on

21, 22-23.
S.F. Trial, test. of Charie Driscol Porter, vol. 50 at 7-18, 21-22. Porter also testified on direct that (1)
Petitioner displayed a really bad attitude” and used “real hateful speech toward people,” especially toward female
officers; (2) in 1996 Petitioner was a large, stout, man who wore glasses and was extremely intimidating; (3) she found
the incident in question very scary; and (4) at present well over fifty percent of TDCJ guards are women. Id. at 16-
17, 22. On cross-examination, Petitioner’s trial counsel elicited admissions from Porter that (1) this was the only
report she ever wrote up on Petitioner and (2) Petitioner never attacked her. Jd. at 18-21, 23.
16 SF. Trial, test. of Rupert S. Robert, vol. 49 at 23-37. More specifically, Officer Robert testified on direct
and cross-examination that (1) Petitioner was one of 93 inmates he wrote up who refused to go to work in the fields
after being transported outside on the date in question and (2) after pleading guilty, Petitioner received a day or two
in solitary and thirty days loss of commissary privileges. fd at 27-31, 35.
17 SF, Trial, test. of Angela Jeter, vol. 49 at 38-52. Jeter testified that (1) she served as Petitioner’s counsel
substitute on the major case; (2) Petitioner was charged with cursing a guard and telling the guard that he “should kick
his ass” during a verbal dispute over changing the television channel; and (3) Petitioner was also charged with
approaching the officer aggressively. /d.
8 SF. Trial, test. of Linda Crum, vol. 49 at 52-59.
10 SF. Trial, test. of Henry Aguilar, vol, 49 at 60-66. A TDCI gang intelligence officer also testified that
he had deait with inmate Aguilar and had received reliable information from Aguilar in the past. S.F. Trial, test. of
David Crippin, Volume 49 at 66-69. A Dallas Sheriff's Office Special Response Team member testified that he heard
Petitioner curse another inmate while he was escorting Petitioner past a series of individual holding cells at the Dallas

November 17, 2007, during which (a) Petitioner appeared in the Unit clinic complaining of chest
pains; (b) when Petitioner persisted in yelling and cursing at a TDCI security officer, the nurse
responded that Petitioner would not be yelling if he were in pain; (c) Petitioner then responded
“black mother fer bitch. You don’t have to talk to me like that”; and (d) Petitioner then walked
out of the clinic.”°
2. The Defense’s Case in Mitigation
Petitioner’s defense team first called Petitioner’s younger brother Gary, who testified that
(1) their father was an encyclopedia sales representative who organized sales areas and traveled a
lot; (2) when he was young their family moved around quite frequently; (3) he attended thirteen
different schools growing up; (4) as a result, he and Petitioner both had very few friends but
developed a close brotherly relationship; (5) eventually their family moved into construction and
settled down; (6) their mother was a stay-at-home parent when they were young; (7) their mother
would often blow up over minor infraction and cause Petitioner’s father to punish Petitioner and
Gary unfairly and excessively; (8) when their father did punish them, their mother would then say
didn’t mean they were that bad”; (9) Gary was their mother’s favorite, possibly because of a
congenital defect in his arm; (10) Petitioner was their father’s favorite until their younger sister
was born and she quickly became their father’s favorite; (11) Petitioner stopped playing football
because he did not like people yelling at him; (12) growing up, Petitioner was active in Boy Scouts;

County Jail on April 16, 2010, S.F, Trial, test. of Clifford Johnson, vol. 49 at 70-79. Officer Johnson also testified
that after the incident in question, inmate Aguilar initially refused to be removed from his holding cell and escorted
the same direction Petitioner had gone. Jd, at 75-66.
20 SF, Trial, testimony of Nikki Anderson, Volume 50, at 24-30. On cross-examination, Petitioner’s trial
counsel elicited testimony from the nurse that the female security guard who interposed herself between Petitioner
and the nurse did not mace or have to handcuff Petitioner to prevent Petitioner from behaving violently, Jd, at 31-

(13) Petitioner was also Gary’s defender and protector; (14) once their father stopped traveling,
their father worked days, their mother worked nights, and he and Petitioner looked after their
younger siblings; (15) their mother was an alcoholic whose drinking became worse when she
began working evenings; (16) when their mother drank, she was a lot more self-centered and mean;
(17) mental illness (bi-polar and schizophrenia) is common on their mother’s side of the family;
(18) their mother had, and possibly their younger brother has, some form of mental illness;
(19) when they grew older, their sister took over responsibility for taking care of their younger
brother, a responsibility she continues to exercise now that their parents are gone; (20) Petitioner
has always taken care of himself; (21) Petitioner has experienced a couple heart attacks, suffers
arthritis in his knee from a football injury, and has diabetes and other medical issues;
(22) Petitioner is not a threat to anyone; (23) it was not until he married that Gary learned to model

a good marital relationship, learning by watching his wife’s parents interact; (24) he has been
Petitioner’s only constant relationship throughout life; (25) he believes the jury should allow
Petitioner to die a death by natural causes; and (26) Petitioner has two stents and is able to do little
recreational activity beyond watching television and reading.”'
The defense called a cardiologist who had recently treated Petitioner and who testified that
(1) Petitioner had a stent installed in 2007 and another installed just days before trial began;
(2) Petitioner has mildly depressed heart function; (3) Petitioner has significant coronary disease

21 SF, Trial, test. of Gary Wayne Bess, vol. 50 at 36-57, 71-75. On cross-examination, Gary Bess testified
that (1) he is unaware that Petitioner has any mental problems; (2) Petitioner is not bi-polar and not manic;
(3) Petitioner was not physically abused as a child except for spankings; (4) Petitioner was never sexually abused;
(5) they lived in rent homes growing up but pretty much always had food; (6) Petitioner has a temper but is not violent;
(7) Petitioner received a 25-year sentence for two crimes in 1977 but was out in seven years; (8) Petitioner found a
job after getting out of prison in 1984; (9) he does not believe Petitioner is guilty of the rapes for which Petitioner was
convicted; (10) Petitioner has said he is sorry he is in prison but has not expressed remorse to Gary for his crimes,
(11) he does not discuss Petitioner’s crimes with him; and (12) he does not believe Petitioner is guilty of the capital
murder for which Petitioner was convicted, Jd. at 57-70, 76-77.

10

diffusely scattered throughout his blood vessels; (4) Petitioner has swelling in his legs and
experiences shortness of breath; (5) he diagnosed Petitioner with coronary heart disease and
chronic systolic heart failure; (6) Petitioner is also diabetic and has a blockage of eighty percent in
his carotid artery; and (7) surgery to clean out Petitioner’s carotid artery would be extremely
risky.”
An exonerated former TDCJ inmate who resided with Petitioner in the same cell block for
many years testified that (1) he worked with Petitioner in their prison laundry and resided with
Petitioner for more than ten years; (2) he got to know Petitioner in prison and they became friends,
(3) a lot of inmates had issues with female guards, especially when the female guards began
monitoring inmates in the showers; (4) lots of rough language is used in prison and it is socially
acceptable, including racially charged language; (5) Petitioner got along with a black inmate who
also worked in the laundry; (6) Petitioner is not a gang member; and (7) over the years Petitioner
has become significantly less physically active.”
Petitioner’s mental health expert, clinical psychologist Dr. Mark P. Vigen, then testified
that (1) the TDCJ is a well-run prison system which has controlled and has the ability to continue
to contro! Petitioner so that Petitioner will not be a danger to others within the prison system; (2) he
and former TDCJ official S.C. Woods interviewed six TDCJ officers and reviewed Petitioner’s
TDCI disciplinary records; (3) Petitioner accumulated 29 disciplinary infractions over a 32-year
period; (4) Petitioner was incarcerated in the TDCJ system from May 1978 to March 1984 and

2 Trial, test. of Dr. Sandeep Rom Das, vol. 50 at 85-112.
23 S.F. Trial, test. of Johnny Ear! Lindsay, vol. 50 at 113-36, 149. On cross-examination, Lindsay admitted
that (1) during his years in TDCJ, he never received a disciplinary infraction for being disrespectful to a guard; (2)
Petitioner has an attitude; (3) the guards had a real problem with Petitioner; (4) Petitioner was a loner and a lot of
people did not like him; and (5) Petitioner talked a lot of trash, especially to the guards, /d. at 137-48.

11

then again from September 1986 to May 2008; (4) Petitioner pleaded guilty during those time
frames to multiple charges of speaking defiantly, using vulgar language, and disobeying an order;
(5) Petitioner also pleaded guilty to a wide variety of infractions, including fighting with a dust

pan and broom, being out of place, standing outside a designated area, possession of contraband
(specifically food), lying to an officer, bathing in a sink, oversleeping, verbally threatening an
officer, refusal to go to optometry, whistling and talking in a hallway, stealing hot dogs, and failing
to enter the day room; (6) all of Petitioner’s infractions were minor disciplinary infractions which
led to Petitioner losing commissary privileges or being confined to his cell, but did not result in
Petitioner losing good conduct time credits or suffering a reduction in classification status;
(7) Petitioner had no violent infractions or sexual violations; and (8) elderly inmates tend to have
fewer deviant, compulsive, or hostile infractions than younger inmates.”
When Dr. Vigen attempted to recite some of the things various TDCJ employees had told
him during their interviews, however, the prosecution objected on hearsay grounds and the trial
court excused the jury while counsel argued the issue.” Near the conclusion of that hearing, the
prosecution offered to allow Dr. Vigen to summarize for the jury what he had been told by the
TDCJ employees whom he interviewed but not give verbatim recitations of everything his
interview subjects’ had told him.”* Dr. Vigen then testified as follows in front of the jury:
Q. With the rules in effect from our conversation, did you have a chance to
interview some guards?
A. Some corrections officers, yes.
Q. Excuse me. My apologies. Corrections officers.
A. Yes.

4S F. Trial, test. of Dr. Mark P. Vigen, vol. 51 at 14-53.
5 Td, at 53-64,
26 Id. at 62-64 .

12

Q. Let’s start with number one that you have on your list.
A. Yes.
Q. Who did you interview?
A. Corrections officer Janet Ebner.
Q. And what was her duty in the system?
A. At the time I interviewed her, she was chief of Unit Classification at Ellis one
year and she had about 27 years of experience.
Q. Okay. Did she express - - did she have any problems dealing with Bess?
A. No,
Q. Okay. Who was the next one - - when I say “Bess” I mean Andy Bess.
Donald Bess, the defendant; is that right?
A. Yes, sir.
Q. Okay. Who’s the second person?
A. Sergeant Cynthia Johnson.
Q. And what was her assignment?
A. She’s the laundry manager in charge of all the supervision of the laundry
facilities at Ellis.
Q. Okay. And do you know how long she’d been employed or worked in the
system?
A. She was asergeant. She probably has extensive experience, Let’s see...
I think certainly longer than - - she probably started prior to 1992.
Q. Okay. And she had - - she’s had contact with the Defendant; is that correct?
A. Daily contact since 2001 to the present.
Q. Has she had any problems dealing with Mr. Bess?
A. No.
Q. And, physically, how would you describe her, Is she asmall person? Large
person?
A. She is a small woman, about five-foot four. Average build. Neatly
groomed, Articulate. She has a very good command presence about her.
Q. Is she white or black or Hispanic?
A, She’s a black woman.
Q. Who’s the next person on your list?
A. Sergeant Johnny Mahone. Mahone or Mahoney.
Q. Okay. What are his duties and responsibilities in the system?
A. He’s been involved with laundry management and necessities, which are
managing laundry and facilities like that.
Q. And how long has he been in contact with Donald Bess?
A. He has known him for 21 years.
Q. Has he had any problems dealing with Mr. Bess?
A. No.
Q. Okay. Who will be the next person that you talked to? Or on your list,
rather.
A, Corrections officer David Fransaw.
Q. And what duties does he have?
A. He’s been a corrections officer since 1987 and he had various positions.

13

Q. Okay.
A. He met Mr. Bess in 1993,
Q. Has Mr. - - has David had any problems dealing with Mr. Bess?
A. No.
Q. Okay. Who was the next person on your list?
A. Sergeant Chad Crippin.
Q. Do you know what his assignment is?
A. He is head of the Security Threat Group since 1999 at Elis, and he’s been at
Ellis since 1986, He’s a sergeant.
Q. Has he had any problems dealing with Mr. Bess?
A, No problems with him.
Q. Okay. You personally talked to him, right?
A. Yes.
Q. Okay. Who’s the next one on your list?
A. He is the last one that I interviewed personally. S.O, Woods interviewed one
additional officer, when I was not able to be there.
Q. Okay. And what's the next one on your list?
A, His name is Kelly Bybee.
Q. Okay. And what’s his responsibility?
A. Heis a unit laundry manager.
Q. Okay. Has he indicated how long he’d known Mr, Bess?
A. Yes. Since 1990.
Q. Okay. Did he have any problems dealing with Mr. Bess?
A. No.
Q. Now, there’s two other people that were interviewed; is that correct?
A. Yes.
Q. Harry Sturgess (phonetic) and James Jose?
A. Yes.
Q. And is it fair to say that they had no remembrance of any problems dealing
with Mr. Bess?
A. Yes.
Q. Okay. In other words, the idea being that if they had problems they would
have had significant memory about him.
A. Let me say it clearly. They did not remember Mr. Bess. Even though
Sergeant Sturgess, who’s now retired, did write a disciplinary action on him.
They didn’t remember him and, as a result of not remembering him, they had no
memory of anything negative to say about him.’
Dr. Vigen concluded his direct examination by opining that, based upon Petitioner’s advanced age,
declining health, and confinement history, all of which could be considered mitigating factors, he

27 te,

14

believed Petitioner would not pose a risk of future dangerousness.** Following extensive cross-
examination? Dr. Vigen also opined that nothing in Petitioner’s records suggests he had ever
used a weapon except possibly for one incident in which a dust pan and brush were involved in an
altercation with another inmate, and nothing in Petitioner’s records suggested he had ever been
involved in an escape attempt.*° After the conclusion of Dr. Vigen’s testimony, Petitioner’s
defense team rested.!
3. The Prosecution’s Case in Rebuttal
The prosecution then called Petitioner’s ex-spouse, who testified that (1) she married
Petitioner in 1969, when she was eighteen; (2) Petitioner’s attitude towards her changed shortly
after they married, and he became disrespectful, insulting, demeaning, and prone to violent
outbursts that had nothing to do with his use of alcohol; (3) Petitioner threw her against a wall

78 Td, at 69-71,
2° During cross-examination, Dr. Vigen testified that (1) clinical psychology is a field that looks for the best
in people; (2) there is no DSM-IV diagnosis for “psychopathy”; (3) it is generally believed that psychopaths are very
dangerous and untreatable; (4) about 75% of men in prison between the ages of 18 to 24 are diagnosed as displaying
Antisocial Personality Disorder (“ASPD”); (5) by age 55, however, that 75% figure is reduced by about 75% to a
figure of about 25%; (6) he interviewed corrections officer and reviewed Petitioner’s disciplinary records; (7) the
crime scene photos of Petitioner’s capital offense reflect a very violent offense; (8) he reviewed Petitioner’s 29
disciplinary cases but did not interview any of the officers involved in those incidents; (9) he made the decision not to
pressure any of the officers he interviewed to talk with him; (10) all of Petitioner’s violations were minor in nature;
(11) vulgar language is certainly hostile but still a minor infraction; (12) Petitioner has made threats and defied orders,
common behavior among older inmates, but threats are not acts of violence; (13) the best predictor of what Petitioner
will do in prison is what he has done over the past 22 years; (14) the chances are low that Petitioner will be violent in
prison; (15) Petitioner is a large man who has been more defiant with female guards than with male guards;
(16) Petitioner has been more violent toward women than men; (17) because the Texas prison system is well-run, there
is a low likelihood Petitioner will hurt anyone in prison; (18) Petitioner would potentially be very dangerous in the
free world, (19) alcohol and drugs have been confiscated within the Texas prison system, as have cell phones;
(20) human error occurs within the Texas prison system and Texas prisons are not perfect; (21) escapes have occurred
from Texas prisons; (22) there is violence and the opportunity for violence within Texas prisons; (23) he cannot be
one hundred percent certain what will happen; and (24) prior to that day, he had never seen Petitioner. Jd. at 106,
122-42,
3 Td. at 142-47.
31 Fd at 147.

15

when she was five months pregnant, causing her to suffer a blow to the back of her head which
left her with two black eyes; (4) she went to live with her parents briefly but then returned to
Petitioner; (5) during a subsequent marital counseling session, their pastor told her not to go home
with Petitioner but she did anyway; (6) when their daughter was about five months old, Petitioner
responded to their daughter crying by kicking their daughter’s crib from one side of her bedroom
to the other with their daughter inside the crib; (7) she waited until Petitioner went to work and
then left with their daughter, despite the fact she was then pregnant with their son; (8) she never
returned to Petitioner; (9) when she gave birth to their son, Petitioner offered to take and raise their

son but said he did not want their daughter; (10) thereafter, Petitioner paid a grand total of twenty-
five dollars in child support, and had nothing to do with their children; (11) Petitioner’s mother

was an alcoholic who treated Petitioner’s brother Gary much better than she treated Petitioner;
(12) Petitioner never smoked and they did not have alcohol in their house when they were married;
(13) when she was cight-months pregnant with their daughter, a woman approached her and told
her “I am so sorry. I did not know he was married and I did not know he was having a child”; and
(14) after their divorce, Petitioner gave up his parental rights to their children.
The prosecution then called another of Petitioner’s rape victims, who testified about the
January 1977 night on which Petitioner (1) approached her from behind on the street, put his hand

over her mouth, displayed a knife, and threatened her; (2) took her to a blue truck with a white

camper and forced her into the truck, telling her, “you are the victim of my aggression. You get in
the truck”; (3) announced that he was going to rape her and demanded that she direct him to her
house; (4) located her address in her purse after she attempted to misdirect him; (5) placed her in

32 Trial, test. of Dianne Cotie, vol. 5} at 148-67.

16

fear for her life; (6) told her that if anyone else was at her apartment when they arrived, she and
the other person would be dead; (7) forced her into her apartment at knifepoint and directed her to
disrobe, (8) raped her, (9) took her back to her vehicle, and (10) told her that if she called police,
she would pay for it3? The same witness then described how, despite Petitioner’s threat, she called
the police, and months later went to a police station, where she met two other victims of Petitioner
and immediately identified Petitioner as her assailant.*4
Finally, the prosecution called Samota’s older sister, who testified that (1) Samota was the
youngest child in their family and involved in a very happy relationship with Ben at the time of
her death, (2) she was responsible for packing her sister’s apartment after Samota’s murder and
still has many household items belonging to Samota, (3) based in considerable part upon what
happened to her younger sister, she decided not to have children, and (4) when she heard an arrest
had finally been made in Samota’s murder, she experienced a “Twilight Zone” feeling.*° Both
parties then rested and closed.*°
4, The Defense’s Bill of Exceptions
Outside the jury’s presence, Petitioner’s defense team presented additional testimony from
S.O. Woods and Dr. Vigen. Woods testified that (1) the defense team obtained a court order for
prison personnel records, (2) he and Dr. Vigen got names from Petitioner’s disciplinary records
and went to the TDCI’s Ellis Unit to talk with people named in those records, (3) he was surprised

F, Trial, test.ofE ___, vol. 51 at 168-77.
4 Id at 174-77.
33 $.P, Trial, test. of Gail Samota, vol. 51 at 178-85,
36 Td. at 185-86.

17 □

at how many prison personnel came forward to talk with them when requested, (4) the prison
correctional officers were reluctant to talk with him and Dr. Vigen until they explained they would
not have to testify in court, (5) he doubted many of the officers would have cooperated without
that assurance, (6) prison officials and employees fear appearing in court, and (7) for a criminal
defense counsel to subpoena TDCI personnel would cut the information flow to defense counsel
in all cases.>”
Dr. Vigen then took the stand, and the following took place:
BY MR. FRANKLIN:
Q. I’m going to hand you, Dr. Vigen, what’s been marked as Defendant’s
Exhibits 20 through 25, and ask you if you can identify those exhibits?
A. Yes. These are copies of my notes that I took during interviews with these
corrections officers.
Q. And those are the actual notes that you took, as you were doing the interview;
is that right?
A. Yes, sir. They’re contemporaneous notes.
MR. FRANKLIN: Okay. We will offer these forthe record. Judge, for
purposes of this Bill of Exceptions.
THE COURT: Be admitted.
MR. TATUM: Would you have him just read what the individual officers
- - he would have stated what they said, having been allowed to do that, for each
one.
Q. (BY Mr. Franklin) Will you just go through there and state the name and
briefly what they would have said, had you been able to testify.
A. Yes. Janet Ebner gave her credentials and had 27 years experience. She
said - - she would have said - - she did say that she knows Bess by sight only.
Knows of no problems with him. She reviewed his chart. He had a low number
of disciplinaries. She said two majors. And then she listed: A: Verbal staff
assault. B: Destroyed boots. Then C: Not going to work. And D: Failure to
work.
Q. Okay. Next.
A. Next was Cynthia Johnson. She gave her credentials and said how long she
had known Bess. She said that he followed all of her directions; that she had no
problems with him; that she had never seen him cause any type of problem, and she
labeled him a - - quote - - “normal inmate.”
Q. Okay, Next.

7 $F. Trial, Sub Rosa Examination of §.0. Woods, Volume 51, at 186-96.

18

A. Next one is Sergeant Johnny Mahoney or Mahone. She described her
experience. Known him for 21 years. She saw Bess everyday. Bess was a
clothing handler. She’d been in laundry back in 2001. Bess was there at that
time for two and-a-half years more than she. She knew that he worked in the
shower area. She said he did what he was told to do. There were no problems
from him. He liked to eat cakes and pies. His reputation was, he got along with
inmates and most staff and he was not a troublemaker.
Q. Okay, Next one.
A. Next one was David Fransaw, F-r-a-n-s-a-w (spelling). Fransaw. He gave
his credentials, then he said that he met Bess in 1991 also in the laundry. He had
- - he worked the south end of the main corridor. Had very little contact with Bess.
Saw him in the halls. Saw him in the chow halls. Saw him going to showers.
He said Bess loved to eat.
He, the Officer Fransaw, would go shake down the north end and Bess was
housed in J22 and he saw him, Bess, during those shakedowns. Bess had a good
reputation, and no big problems.
Q. Allright. Next one.
A. The next one was Sergeant Chad Crippin. He gave his credentials. He said
he had known Bess since 1986. He said Bess was a big guy and that Bess had
showed him a Texas Monthly article that had mentioned Crippin as a corrections
officer.
Bess apparently had that copy and brought it up and showed itto him. He
described Bess as friendly. Went to work inthe laundry. No problems with him,
Good-natured. And he said, “I couldn’t say anything bad about him.”
He said that there was a note or a letter in the file, dated 6/15/93 - - an Aryan
Brotherhood letter - - that said he might be a potential member. But that was
apparently written by other people.
Q. Isthat all? I mean, is that all of the corrections officers that you were able to
talk to?
A. Yes. And then Woods - - Mr. Woods interviewed this last one, Kelly Bybee.
Now, I also talked to two others who had retired.
Q. Okay, Did they have anything positive to say about him?
A. They were supervisors in the prisons, like, Harry Sturgess. And they would
have known more about him, they said, had he been a problem. The fact is they
didn’t remember him, which indicated to them that he wasn’t much of a problem.
Harry Sturgess was one of the men who had written one of the
disciplinaries. We showed him the disciplinary report, and he still did not
remember Bess.
Q. Do you believe, had the jury been able to hear these specific renditions of what
you were told by these corrections officers, that it would have helped to make their
determination of future danger?
A. I would say it might have, yes.
Q. Okay. Because we do have positive input from individual corrections
officers about inmate Donald Bess; is that correct?
A. That’s correct.

19 □

Q. Allright. Now, you’ve been doing this for quite sometime. Have you ever
known of an instance where the Defense lawyers were able to actually go in,
interview the corrections officers, get positive feedback from a corrections officer,
have that correction officer say, “You subpoena me, and I'll gladly come to court
and testify for you,” and have that actually happened [sic], if we have a correction
office [sic] with positive things to say show up in a courtroom, in a death penalty,
and say something positive about the inmate?
A. No.
Q. And why is that, in your opinion?
A. Well, I just haven’t - - it’s not an opinion. [just haven’t seen that happen.
Q. How much trouble do you have in interviewing these correction officers?
A. Well, I’ve interviewed corrections officers regarding Mr. Robertson’s trial that
was held here in front of Judge Thompson earlier. And then regarding this inmate.
Many of the officers - - some of the officers in the Robertson trial did not
want to be interviewed. And the warden told us that.
Q. Right.
A. We didn’t feel like we should ask them to do anything against their wishes.
In this trial, these men and women came forward, you know, at the behest
of the warden. And I don’t know if anybody declined to come forward, that may
have been asked.
Q. Allright. Again, you had to make a deal with these correction officers in
order to get information from ‘em; and the deal being that you wouldn’t be calling
‘em in to court to testify.
A. Well, I explained very clearly that it was not our intention - - Mr. Woods or
my intention - - to call them as witnesses and that it would - - you know, that would
be left - - that you, Defense lawyers, left that up to us to tell them that.
But then, at the same time, I couldn’t guarantee that these men and women
wouldn’t be subject fo subpoena. I don’t have that power to say that.
I mean, we were essentially saying to them “we want your observations.
We want you to say whatever you want to say.”
We asked them their observations, and they told us what they were. And
then I said, “May I write these observations?” And they said, “Yes.” And then
I read the observations back to them.
We didn’t in any way want to be coercive to them. We said it was our
intention that they will not be called as witnesses. But we also said we can’t
guarantee that. We don’t have the power of the Court and the lawyers to make
that absolute assurance. So J think it was clear to them that we were there to learn
from them, but that we would not be asking them to come.
Q. Now, we have discussed with wardens - - you and I and other lawyers have
discussed with wardens in the system what is happening in the death penalty trials
across the state. Where they have had inmates who are being tried in death penalty
cases,
We have discussed with them that there are people who come and testify
what a pathetic, ill-run system that they’re operating, have we not?
A. Yes, we have.

20

Q. One of ‘em, A.P. Merlot [sic], we talked about quite a bit with these wardens;
is that right?
A. Yes.
Q. And we tell the wardens what Merlot [sic] says about their prisons.
A. Yes.
Q. But they won’t come in here and defend their particular units, will they?
A. Ihaven’t met a warden or an administrator, a regional director or a head of a
division that really has known much about criticisms of the prisons that are being
made in courts. They’re generally not aware of that.
Q. And, yet, they don’t want to come in here and defend when they know about
it, do they?
A. You know, I don’t know that I can speak for the wardens and say what they’re
willing - - what they will or won’t do. Several of them said they don’t want to
come to court and testify.
Q. Right.
A. I mean, they’ve said that, But I don’t know all they’re thinking about it.
We just don’t want to put a corrections officer in jeopardy and ask him to do
something that may be politically incorrect for him or not in the best interest of his
career opportunities, if he were seen to be offering testimony for a Defense witness
or a Defense lawyer that may have a negative impact on him, in what he does in his
career.
We don’t want to - - we’re just not there to hurt anybody and their careers.
We’re just there to understand the inmate.
Q. And it’s been kind of your impression that if we were to force these people
to really help us, and they were willing - - I mean, we can’t - - it’s difficult to get
somebody who wants to help us; it that true?
Because we’re Defense lawyers and, for some reason, there’s sort of a
systemic - - I don’t want to call it “rule” - - feeling that if they help the Defense,
they’re going to get in trouble.
A. I think that’s true. They have been very willing to help me in my research
efforts and what I’ve been wanting to do in the prison system. But I think you’re
accurate in the implications of your question.
Q. And we are - - we even are afraid to, for example, use 8.0. Woods in certain
aspects of really testifying full board [sic] for the Defense, for fear that he may lose
his access to the system and access to help - - the help that we can get from people
within the system; is that correct’?
A. Yes, sir.78

38 SF. Trial, Sub Rosa Examination of Dr. Mark P. Vigen, vol. 51 at 197-205.

21

5. Closing Jury Arguments
In their closing jury arguments at the punishment phase of Petitioner’s capital murder trial,
the prosecution team emphasized (1) the extreme level of violence and brutality involved in
Petitioner’s capital offense; (2) the level of horror Petitioner inflicted upon his surviving sexual
assault victims; (3) the violence Petitioner inflicted on his own wife and child; (4) Petitioner’s
continued pattern of hostile behavior, as exemplified by his recent encounters with a nurse and
female security guard inside the Ellis Unit infirmary and with Henry Aguilar inside the Dallas
County Jail; (5) Petitioner’s previous success in manipulating the system to gain his release;
(6) Petitioner’s words to a female TDCJ employee that a life sentence meant he did not have to
obey any rules; (7) that Petitioner’s ill-health and weight were matters largely the products of his
life choices; (8) the eerily similar details of each of Petitioner’s sexual assaults; (9) the flippant
manner with which Dr. Vigen dismissed Petitioner’s prison disciplinary cases as “traffic tickets,”
despite the fact they included an assault on another inmate and multiple verbal assaults on prison
guards; (10) the fact defense witness Johnny Lindsay was also a convicted rapist; and (11) the
absence of any evidence showing the existence of compelling mitigating circumstances.”

3° Multiple attorneys argued for both sides at the closing of the punishment phase of trial. Prosecuting ~
attorney Healy’s closing argument at the punishment phase of Petitioner’s capital murder trial (1) reminded the jury
of the promises they all made during voir dire to apply the law and answer the capital sentencing special issues if the
case progressed that far; (2) emphasized the solemn responsibility they would bear on so doing; (3) mentioned the
number of women Petitioner had sexually assaulted, both before and after he went to prison the first time;
(4) repeatedly reminded the jury of the extreme level of violence inflicted upon Petitioner’s capital murder victim,
(5) argued Petitioner’s actions in murdering his victim were deliberate; (6) reminded the jury that Petitioner orgasmed
inside his capital murder victim; (7) reminded the jury of the violence Petitioner inflicted on his ex-wife and daughter;
(8) reminded the jury Petitioner was released from prison after serving only seven years on a pair of 25-year sentences,
and, within just a few months, raped and murdered a new victim before raping yet another woman; (9) threatened both
Henry Aguilar and a TDCJ Nurse only months before his capital murder trial; and (10) reminded the jury that the
Petitioner’s own brother did not believe Petitioner had committed any of his criminal offenses, including the ones for
which Petitioner pleaded guilty. S.F. Trial, vol. 52 at 8-28.
Prosecuting attorney Kirlin argued (1) the facts of Petitioner’s capital offense alone fully justified affirmative
answers to the first two special issues and a negative answer to the final special issue; (2) Petitioner is a master
manipulator who succeeded in gaining his freedom during his first term of incarceration, despite having assaulted
another inmate and having verbally assaulted prison staff on multiple occasions; (3) Petitioner’s pattern of minor
22

The defense (1) emphasized the importance and seriousness of the jury’s duty;
(2) reminded the jury of the things they had discussed with counsel during voir dire, including the
role of individual jurors in standing firm in their views; (3) emphasized the broad range of
mitigating evidence; (4) reminded the jury that individual jurors need not agree on what constitutes
mitigating evidence; (5) argued the jury could dispense mercy; (6) reminded the jury that the death
penalty was reserved for only those whom the state proved beyond a reasonable doubt would be a
continuing threat to society; (7) argued Petitioner’s record of only minor disciplinary infractions
and verbal assaults while in prison for 32 years showed that he was not a future danger;
(8) reminded the jury of Dr. Vigen’s testimony that the Texas prison system was capable of
controlling Petitioner; (9) argued Petitioner had never used a weapon during any of his verbal
prison incidents; (10) reminded the jury that Petitioner was now old and in ill health; and
(11) conceded that this capital murder was deliberate but insisted Petitioner was not a future
danger.”

prison disciplinary infractions were a part of Petitioner’s efforts to obtain release yet again; (4) Petitioner hates women,
(5) Petitioner’s poor health resulted directly from Petitioner own life choices, including his theft of hot dogs and cheese
despite his having diabetes; (6) Dr. Vigen was unfamiliar with Petitioner’s personality and unreasonably dismissive
of all of Petitioner’s disciplinary infractions as minor “traffic tickets”; (7) defense witness Johnny Lindsay was also a
convicted rapist; (8) all of Petitioner’s rapes bore eerily similar details showing Petitioner’s penchant for the
manipulation of others; and (9) Petitioner’s statement to a female TDCI staff person that his life sentence meant he
did not have to obey any rules were a clear indicator of how Petitioner would behave if granted yet another life sentence
and locked in a prison facility guarded by women. fd. at 49-66.
40 Defense attorney John G. Tatum emphasized the seriousness and importance of the jury’s role at the
punishment phase of trial, argued the jury should consider a broad range of evidence to be mitigating, and urged the
jury to dispense mercy. /d. at 27-31.
Petitioner’s lead defense counsel, attorney Richard K, Franklin, argued (1) Petitioner’s record of only verbal,
non-physically violent disciplinary infractions over his 32 years in prison demonstrated Petitioner was not a future
danger; (2) Petitioner’s verbal outbursts were consistent with what Dr. Vigen described older inmates do, i.e., they
mouth off but are not violent; (3) Dr. Vigen had spoken with female prison guards who did not have a problem with
Petitioner; (4) Petitioner’s disciplinary infractions were relatively minor, some so minor they were never written up;
and (5) that while the capital offense was deliberate, the state had failed to prove beyond a reasonable doubt that
Petitioner was a future danger, [d, at 32-49.

23

6. The Verdict
On June 18, 2010, the jury returned its verdict at the punishment phase of Petitioner’s
capital murder trial, (1) finding beyond a reasonable doubt that he caused Samota’s death
deliberately and with reasonable expectation that her death or the death of another would result;
(2) finding beyond a reasonable doubt that there is a probability he would commit criminal acts of
violence that would constitute a continuing threat to society; and (3) finding that, taking into
consideration the circumstances of the offense, the Petitioner’s character and background, and his
personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence
of life imprisonment,*!
E. Direct Appeal
Petitioner appealed. On July 5, 2011, two of Petitioner’s trial counsel, attorneys John
Tatum and Robbie McClung, filed their Brief for Appellant, presenting fifty-two points of error?

41 Iq, at 72-73. Petitioner’s punishment phase jury verdict form appears among the state court records at
pages 91-93 of the first volume of the Clerk’s Record,
2 As points of error on direct appeal, Petitioner argued (1) the trial court erred in overruling Petitioner’s
Batson objection to the prosecution’s peremptory strike of venire member Margaret Austin (point of error No. 1);
(2) the trial court erred in denying Petitioner’s challenges for cause to fourteen named members of the jury venire
(points 2 through 15); (3) the jury as constituted violated Petitioner right to due process (points 16-17); (4) the trial
court erred in admitting over Petitioner’s objection the opinion testimony of medical examiner Dr. Gilliland regarding
her opinion that Samota engaged in intercourse contemporaneously with her death (points 18-19); (5) the trial court
erred in admitting crime scene photographs (points 20-21); (6) because there was no semen found on Samota’s bed
sheets, there was insufficient evidence to establish capital murder (point 22); (7) the trial court erred in failing to
instruct the jury on the lesser-included offense of aggravated sexual assault (point 23), (8) the trial court erred in
overruling Petitioner’s objections to prosecutorial jury argument at the guilt-innocence phase of trial regarding the
location of intercourse (point 24); (9) the trial court erred in denying Petitioner’s motion for mistrial at the guilt-
innocence phase of trial after the trial court sustained Petitioner’s objection to the prosecution’s closing jury argument
(point 25); (10) the trial court erred in overruling Petitioner’s objection to the prosecution’s closing guilt-innocence
phase jury argument regarding lesser-included offenses (point 26); (11) the trial court erred in sustaining the
prosecution’s hearsay objection to the defense’s proffer of Dr. Vigen’s testimony regarding statements made to him
by prison guards (points 27-28); (12) the evidence was insufficient to support the jury’s affirmative answer to the
future dangerousness special issue (point 29); (13) the trial court erred in denying Petitioner’s motion for mistrial after
the trial court sustained a defense objection to a prosecution question to a prosecution witness regarding Petitioner’s
demeanor (and apparent lack of remorse) (point 30); (14) the trial court erred in allowing the prosecution to impeach
defense witness Lindsay with a prior conviction that was more than ten years old (point 31); (15) the trial court erred
in admitting over the defense’s objection a self-authenticating document relating to one of Petitioner’s prior
24

In an unpublished opinion issued March 6, 2013, the Texas Court of Criminal Appeals affirmed
Petitioner’s conviction and sentence. Bess, 2013 WL 827479. The United States Supreme
Court denied Petitioner’s certiorari petition on January 13,2014. Bess, 571 U.S, at 1132.
F. State Habeas Corpus Proceeding
On May 21, 2012, attorney Catherine Clare Bernhard filed Petitioner’s initial application
for state habeas corpus relief, urging fourteen grounds for relief.*? The state trial court held an

convictions (point 32); (16) the trial court erred in admitting over Petitioner’s hearsay objection testimony at the
punishment phase of trial relating to the demeanor one of the Petitioner’s previous victims (points 33 & 37); (17) the
trial court erred in denying Petitioner’s motion for mistrial after the trial court sustained Petitioner’s objection to
prosecutorial argument regarding Petitioner’s threat against prosecution witness Aguilar (point 34); (18) the trial court
erted in overruling Petitioner’s objection and denying Petitioner’s motion for mistrial at the punishment phase of trial
regarding the prosecution’s jury argument alluding to parole (points 35-36); (19) the trial court erred in overruling
Petitioner’s objections to punishment phase prosecutorial jury arguments that addressed facts outside the record
(points 38-39); (20) Petitioner’s due process rights were violated by virtue of the absence of state appellate review of
the evidentiary sufficiency underlying the jury’s answer to the mitigation special issue (points 40-41), (21) the trial
court erred in failing to mandate a life sentence for Petitioner based upon the Supreme Court’s holding in Smith v.
Texas (points 42-43); (22) Petitioner’s equal protection rights were violated by virtue of the prosecutorial discretion
exercised by local prosecutors throughout the State of Texas (point 44); (23) the Texas capital sentencing statute is
unconstitutional because it imbues the jury with too much direction (point 45); (24) the Texas capital sentencing
statute’s mitigation special issue violates the Supreme court’s holding in Penry (point 46); (25) absence of a burden
of proof in the Texas capital sentencing statute’s mitigation special issue violates the Constitution (points 47 & $2);
(26) the Texas capital sentencing statute’s twelve/ten rule violates the Eighth Amendment (point 48); (27) the presence
of vague and undefined terms in the Texas capital sentencing special issues violates the Eighth Amendment (point
49); and (28) the Texas capital sentencing statute violates both federal and state constitutional prohibitions including
the Eighth Amendment and Due Process Clause (points 50-51).
43 As grounds for relief in his state habeas corpus application, Petitioner argued that (1) his Fifth and Eighth
Amendment rights were violated when he was charged with a capital offense committed more than twenty years prior
to his indictment (ground 1); (2) his death sentence violated due process principles and the Supreme Court’s holdings
in Roper v. Simmons because of Petitioner’s advanced age and poor health (ground 3); (3) Petitioner’s constitutional
rights were violated by virtue of the fact his defense team was unable to interview prison officials and employees
(ground 5); (4) his trial counsel rendered ineffective assistance by (a) failing to adequately raise a claim based on
preindictment delay (ground 2); (b) failing to challenge the admission of DNA evidence (ground 4); (c) failing to
investigate exculpatory evidence regarding scorch marks in the bathtub of McCall (ground 6); (d} conceding
Petitioner’s guilt without Petitioner’s consent (ground 7); (e) failing to challenge the absence of a definition of
“nrobability” in the future dangerousness special issue (ground 8); (f) failing to challenge the use of the deliberateness
special issue in the punishment phase jury charge (ground 9); (g) failing to challenge as too narrow the Texas capita]
sentencing statute’s definition of the term “mitigating evidence” (ground 10); (h) failing to object to the trial court’s
“no sympathy” jury instruction (ground 11); (i) failing to argue the Texas capital sentencing statute violates the
Supreme Court’s holdings in Apprendi, Ring, and Blakely and (j) failing to challenge the trial court’s failure to inform
the jury of the consequences of a single holdout juror; and (5) his appellate counsel rendered ineffective assistance by
failing to challenge the absence of a sentencing option of life without parole under the Texas capital sentencing scheme
applicable to Petitioner’s offense. Petitioner’s state habeas corpus application appears among the state court records
submitted by Respondent at pages 2-134 of the second volume of the transcript from Petitioner’s state habeas corpus
25

evidentiary hearing on June 28 and July 1-3, 2013, and heard testimony from multiple witnesses,
including all three attorneys who represented Petitioner at trial. On October 18, 2013, the state
trial judge issued an order containing his findings of fact, conclusions of law, and recommendation
that Petitioner’s state habeas corpus application be denied. 44 The Texas Court of Criminal
Appeals denied state habeas relief based upon the trial court’s findings and conclusions. £x parte
Bess, WR-81,572-01, 2016 WL 1470356 (Tex. Crim. App. Apr. 13, 2016).
G. Proceedings in this Court
On February 12, 2018, Petitioner filed his first amended federal habeas corpus petition,
see ECF No. 23, urging eleven grounds for relief, including multiple claims Petitioner had never
raised in any state court proceeding.” Respondent filed her answer on July 30,2018, See ECF
No. 30. Petitioner filed his reply on October 26, 2018. See ECF No, 34.

proceeding (“State Habeas Transcript, Volume II”).
44 The state trial court’s order issued October 18, 2013, appears among the state court records submitted by
Respondent at pages 40-135 of the first volume of the transcript from Petitioner’s state habeas corpus proceeding
(“State Habeas Transcript, Volume I”).
45 As grounds for relief in his first amended federal habeas corpus petition Petitioner argued that (1) new
questions exist regarding the reliability of the DNA evidence and test results in Petitioner’s case which satisfy the
“actual innocence” standard (ground 4); (2) the trial court erred in excluding hearsay statements from Texas
Department of Criminal Justice (*TDCJ’) employees and officials to the effect that Petitioner was not a future danger
(ground 5); (3) the prosecution’s use of a peremptory challenge against venire member Margaret Austin violated the
Supreme Court’s holding in Batson (ground 7); (4) the trial court erred in admitting unreliable testimony from
prosecution experts that Angela Samota had intercourse shortly before or contemporaneously with her death (ground
8); (5) Petitioner’s due process rights were violated by virtue of the 23-year delay in his indictment (ground 9); (6) the
Eighth Amendment precludes the execution of a person such as Petitioner who is of advanced years and in poor health
(ground 11); and (7) his trial counsel rendered ineffective assistance by (a) failing to adequately investigate Petitioner’s
background and present available evidence showing that (i) Petitioner grew up in a dysfunctional family with a family
history of alcoholism and mental illness, and experienced childhood trauma from abusive parents (ground 1) and (ii)
Petitioner suffers from deteriorating mental health but does not suffer from anti-social personality disorder (“ASPD”)
(ground 2); (b) disparaging Petitioner in closing jury argument at the punishment phase of trial and conceding
Samota’s murder was deliberate (ground 3); (c) failing to challenge the trial court erroneous admission of evidence
limiting the scope of defense expert Dr. Vigen’s punishment phase testimony regarding statements made to him by
TDCI employees (ground 5); (d) conceding without Petitioner’s permission that Petitioner sexually assaulted Samota
(ground 6); and (e) failing to investigate evidence showing Ben McCall committed Samota’s murder (ground 10).

26

On February 2, 2018, Petitioner filed a Motion for Stay. See ECF No. 22. On December
6, 2018 Petitioner filed a motion for discovery. See ECF No. 37. In an Order issued March 19,
2019, this Court denied Petitioner’s motions for discovery and stay. See ECF No.47. On April
10, 2019 Petitioner filed a motion for an evidentiary hearing, See ECF No, 48. Petitioner filed

a motion for reconsideration on April 19,2019, See ECF No, 49. In an Order issued April 23,
2019, this Court denied Petitioner’s motion for reconsideration. See ECF No. 50.
Il. STANDARD OF REVIEW
Because Petitioner filed his federal habeas corpus action after the effective date of the Anti-
Terrorism and Effective Death Penalty Act (C(AEDPA”), this Court’s review of Petitioner’s claims
for federal habeas corpus relief is governed by AEDPA. Penry v. Johnson, 532 U.S. 782, 792
(2001). Under the AEDPA standard of review, this Court cannot grant Petitioner federal habeas
corpus relief in connection with any claim that was adjudicated on the merits in state court
proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States, or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding, See Brown v. Payton, 544 U.S. 133, 141 (2005); see also Williams v. Taylor, 529
U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded that the “contrary to” and “unreasonable application”
clauses of 28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S, 685, 694
(2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law
or (2) the state court decides a case differently than the Supreme Court on a set of materially

27

indistinguishable facts, See Brown, 544 U.S. at 141; see also Mitchell v. Esparza, 540 U.S. 12,
15-16 (2003). A state court’s failure to cite Supreme Court authority does not, per se, establish
that the state court’s decision is “contrary to” clearly established federal law. Indeed, “[t]he state
court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of
the state-court decisions contradicts them,’”” Mitchell, 540 U.S. at 16 (citation omitted).
Under the “unreasonable application” clause, a federal habeas court may grant relief if the
state court identifies the correct governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the petitioner’s case. Brown, 544 U.S. at 141;
Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the “unreasonable
application” inquiry should ask whether the state court’s application of clearly established federal
law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); see also
Wiggins, 539 U.S. at 520-21. An “unreasonable” application is different from a merely .
“incorrect” one. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Wiggins, 539 U.S.
at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) (“[I]t is the habeas applicant’s burden to show
that the state court applied that case to the facts of his case in an objectively unreasonable
manner.”). “Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a
writ of habeas corpus from a federal court ‘must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington vy. Richter, 562 USS.
86, 101(2011)).

Legal principles are “clearly established” for purposes of AEDPA review when, as of the
time of the relevant state-court decision, Supreme Court holdings, as opposed to the dicta, establish

28

those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (“We look for ‘the
governing legal principle or principles set forth by the Supreme Court at the time the state court
renders its decision.’” (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003))).
AEDPA also significantly restricts the scope of federal habeas review of state court fact
findings. 28 U.S.C. § 2254(d)(2) provides that federal habeas relief may not be granted on any
claim that was adjudicated on the merits in the state courts unless the state court’s adjudication of
the claim resulted in a decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. See Wood y. Allen, 558 U.S, 290, 301 (2010)
(citation omitted) (“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”); Williams,
529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” (emphasis in original)). Even if reasonable minds reviewing the
record might disagree about the factual finding in question (or the implicit credibility
determination underlying the factual finding), on habeas review, this does not suffice to supersede
the trial court’s factual determination. See Wood, 558 U.S. at 301; see also Rice v. Collins, 546
U.S. 333, 341-42 (2006).
In addition, section 2254(e)(1) provides a federal habeas petitioner challenging state court
factual findings must establish by clear and convincing evidence that the state court’s findings
were erroneous. Schriro, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to

presume the correctness of state courts’ factual findings unless applicants rebut this presumption
with ‘clear and convincing evidence.’” (quoting 28 U.S.C, § 2254(e)); Rice, 546 U.S. at 338-39
(“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of
rebutting the presumption by ‘clear and convincing evidence.’” (same)). At this juncture, it

29

remains unclear whether section 2254(e)(1) applies in every case presenting a challenge to a state
court’s factual findings under section 2254(d)(2). See Wood, 558 U.S. at 300-01 (choosing not to
resolve the issue of section 2254(e}(1)’s possible application to all challenges to a state court’s
factual findings); Rice, 546 U.S. at 339 (same).
The deference to which state-court factual findings are entitled under AEDPA does not
imply an abandonment or abdication of federal judicial review. See Miller-Ely. Dretke, 545 U.S.
231, 240 (2005) (the standard is “demanding but not insatiable” (quoting Miller-El v. Cockrell,
537 U.S. 322, 340 (2003))).
In this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a
claim for relief pursuant to AEDPA must focus exclusively on the propriety of the ultimate
decision reached by the state court, and may not evaluate the quality, or lack thereof, of the state
court’s written opinion supporting its decision. See Evans v. Davis, 875 F.3d 210, 216-17 (Sth
Cir. 2017), cert. denied, 139 8. Ct. 78 (2018).
Absent a showing that there is an absence of an available state corrective process or that
circumstances exist that render such process ineffective to protect the rights of a petitioner, this
Court is statutorily precluded from granting federal habeas corpus relief on any claim that has not
been fairly presented to the state courts. See Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (the
exhaustion requirement is designed to avoid the unseemly result of a federal court upsetting a state
court conviction without first according the state courts an opportunity to correct a constitutional
violation). Nonetheless, this Court is authorized to deny federal habeas relief on the merits
notwithstanding a petitioner’s failure to exhaust available state court remedies. See Rhines v.
Weber, 544 U.S. 269, 277 (2005) (citing 28 U.S.C, § 2254{b)(2)). When a petitioner claims that
the state court failed to adjudicate a claim on the merits (such as claims (1) the state courts
30

summarily dismissed under the Texas writ-abuse statute or other Texas rules of procedural default

or (2) which the Petitioner failed to fairly present to the state courts), this Court’s review of the
un-adjudicated claim is de novo. See Porter v. McCollum, 558 U.S, 30, 39 (2009) (citation
omitted) (holding de novo review of the allegedly deficient performance of petitioner’s trial
counsel was necessary because the state courts had failed to address this prong of Strickland
analysis); see also Wiggins, 539 U.S. at 534 (same).
Ill. AGE AND HEALTH BARRIERS TO EXECUTION
A. The Claim
In his eleventh claim for federal habeas corpus relief, relying upon the Supreme Court’s
holdings in Atkins v. Virginia, 536 U.S, 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005),
Petitioner argues that the Eighth Amendment precludes his execution because of his advanced age
and poor physical health.”°
B. State Court Disposition
Petitioner presented essentially the same claim as his third claim for state habeas corpus
relief47_ The state habeas trial court concluded that Petitioner procedurally defaulted on this claim
by failing to raise it in a timely manner at trial or on direct appeal and, alternatively, concluded
Petitioner’s constitutional claim lacked any merit."* The Texas Court of Criminal Appeals denied
relief based, in part, upon the trial court’s findings and conclusions. See Ex parte Bess, 2016 WL
1470356, at *1.

46 First Am. Pet. 83-84.
47 Pet’r’s App. for Writ of Habeas Corpus 49-53; State Habeas Tr., vol. II at 64-68.
48 State Habeas Trial Court’s Findings & Conclusions 27-32; State Habeas Tr., vol. | at 70-75.

31

C. Teague Foreclosure
Respondent correctly points out that this claim is precluded by the Supreme Court’s
holding in Teague v. Lane, 489 U.S. 288 (1989), which forecloses adoption of the new principles
of federal constitutional criminal procedure in federal habeas corpus proceedings. Under the
holding in Teague, federal courts are generally barred from applying new constitutional rules of
criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90
(1994). A “new rule” for Teague purposes is one which was not dictated by precedent existing at
the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156
(1997) (explaining that a “new rule” cither “breaks new ground,” “imposes a new obligation on
the States or the Federal Government,” or was not “dictated by precedent existing at the time the
defendant’s conviction became final” (emphasis omitted)). Under this doctrine, unless reasonable
jurists hearing the defendant’s claim at the time his conviction became final would have felt
compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing
so on collateral review. id.
The holding in Teague is applied in three steps: (1) the court must determine when the
petitioner’s conviction became final; (2) the court must survey the legal landscape as it then existed
and determine whether a state court, considering the petitioner’s claim at the time his conviction
became final, would have felt compelled by existing precedent to conclude that the rule he seeks

was required by the Constitution; and (3) if the rule advocated by the petitioner is a new rule, the
court must determine whether the rule falls within one of the two narrow exceptions to the
nonretroactivity principle. Caspari, 510 U.S. at 390 (collecting authorities).
The only two exceptions to the Teague nonretroactivity doctrine are reserved for (1) “new
rules ‘forbidding criminal punishment of certain primary conduct and rules prohibiting a certain

32

category of punishment for a class of defendants because of their status or offense,’” and (2)
“watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the
criminal proceeding,” i.e., a small core of rules requiring observance of those procedures that are
implicit in the concept of ordered liberty. O'Dell, 521 U.S. at 157 (citations omitted).
Petitioner’s proposed new rule barring the imposition of the death penalty for all condemned
murderers who are of advanced age or in ill health satisfies neither of these two exceptions, A
conviction becomes final for Teague purposes when either the United States Supreme Court denies
a certiorari petition on the defendant’s direct appeal or the period for filing a certiorari petition
expires. Caspari, 510 U.S. at 390. Petitioner’s conviction became final for Teague purposes no
later than January 13, 2014, the date the United States Supreme Court denied Petitioner’s
petition for writ of certiorari following the Texas Court of Criminal Appeals’ affirmation of his
conviction and sentence. See Beard v. Banks, 542 U.S. 406, 411-12 (2004) (recognizing that a
state criminal conviction ordinarily becomes final for Teague purposes when the availability of
direct appeal to the state courts has been exhausted and the time for filing a petition for writ of
certiorari has elapsed or a timely filed petition for certiorari has been denied); Caspari, 510 U.S.
at 390 (“A state conviction and sentence become final for purposes of retroactivity analysis when
the availability of direct appeal to the state courts has been exhausted and the time for filing a
petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”)
Teague remains applicable after the passage of AEDPA. See Horn v. Banks, 536 US.
266, 268-72 (2002) (applying Teague in an AEDPA context); Evans v. Davis, 875 F.3d 210, 219
n.7 (Sth Cir, 2017) (recognizing the continued vitality of the Teague nonretroactivity doctrine
under AEDPA). As of the date Petitioner’s conviction and sentence became final for Teague
purposes no federal court had ever held a Texas criminal defendant was entitled to have his capital

33

. setttence vacated on Eighth Amendment grounds because the defendant suffered from il! health or

was of advanced age. Thus, under Teague, Petitioner’s final claim does not warrant federal
habeas corpus relief under even a de novo standard of review.
D, AEDPA Review
As of the date the Texas Court of Criminal Appeals rejected on the merits Petitioner’s
Eighth Amendment challenge to his capital sentence, i.e., April 13, 2016 (the date that the state
appellate court denied Petitioner’s state habeas corpus application), there was no clearly
established federal law set forth in Supreme Court precedent forbidding the execution of a
condemned murderer based upon the convicted defendant’s advanced age, ill health, or any
combination of those factors. See Rockwell v. Davis, 853 F.3d 758, 763 (Sth Cir. 2017) (holding
that the Eighth Amendment does not preclude the execution of the mentally ill and that the state
court properly applied Supreme Court precedent when it refused to extend the Supreme Court’s
Eighth Amendment holding in Atkins v. Virginia beyond the intellectually disabled), cert, denied,
138 S. Ct. 215 (2017); Shore v. Davis, 845 F.3d 627, 634 (5th Cir. 2017) (holding that an Eighth
Amendment claim premised upon the petitioner’s alleged brain injury was not only barred by the
holding in Teague but also at odds with well-settled Fifth Circuit jurisprudence recognizing that
the Eighth Amendment does not preclude the execution of those with brain problems that do not
rise to the level of intellectual disability), cert. denied, 138 S. Ct. 88 (2017); Mays v. Stephens, 757
F.3d 211, 219 (Sth Cir. 2014) (holding that neither the Supreme Court’s holding in Atkins nor its
holding in Roper created a constitutional rule making the execution of mentally ill persons
unconstitutional); /n re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (same). Thus, the state habeas
court’s rejection on the merits of Petitioner’s Eighth Amendment challenge to his death sentence

34

was wholly consistent with clearly established federal law and does not furnish a basis for federal
habeas relief under the AEDPA.
EL Conclusions
Neither Atkins nor Roper was a federal habeas corpus case governed by the narrow standard
of review under the AEDPA. Instead, both were proceedings in which the Supreme Court
reviewed constitutional holdings made by state appellate courts on direct appeal. Neither of those
opinions nor any of the other opinions cited by Petitioner in his pleadings and briefs in this Court
recognized a constitutional prohibition on the execution of condemned prisoners who have reached
advanced age or suffer from ill health at the time of a scheduled execution. In sum, Petitioner’s
eleventh claim for relief seeks to expand the scope of the Supreme Court’s holdings in Atkins and
Roper beyond the contexts of those two cases and into an entirely new realm. This relief
Petitioner seeks is not available on collateral review, such as this federal habeas corpus proceeding.
The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s Eighth
Amendment challenge to his capital sentence was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States, and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Petitioner’s state habeas corpus
proceeding. Whether viewed under the AEDPA or a de novo standard of review, Petitioner’s
eleventh and final claim for federal habeas corpus relief is without arguable merit.

35

IV. PRE-INDICTMENT DELAY
A. The Claim
In his ninth claim for federal habeas relief, Petitioner argues that his due process and Eighth
Amendment rights were violated when the State of Texas prosecuted him for capital murder more
than two decades after Samota’s murder.”
B. State Court Disposition
Petitioner’s trial counsel did not move to quash the indictment against Petitioner based
upon pre-indictment delay. Likewise, Petitioner did not present a point of error on direct appeal
challenging the delay in his indictment. In his first claim in his state habeas corpus application,
Petitioner argued that his trial for capital murder more than twenty years after Samota’s murder
violated the Fifth, Sixth, Eighth, and Fourteenth Amendments. The state trial court concluded
that Petitioner procedurally defaulted on this claim by failing to timely raise it at trial or on direct
appeal and, alternatively, the claim was meritless because Petitioner failed to identify any prejudice
arising from his pre-indictment delay and failed to allege any facts showing prosecutors
intentionally delayed Petitioner’s prosecution to gain a tactical advantage.*! The Texas Court of
Criminal Appeals denied relief based upon the trial court’s findings and conclusions. Ex parte
Bess, 2016 WL 1470356, at *1.

First Am. Pet. 80-82.
50 Pet’r’s App. for Writ of Habeas Corpus 21-46; State Habeas Tr., vol, II at 36-61.
5] State Habeas Trial Court’s Findings & Conclusions 15-27; State Habeas Tr., vol. I at 58-70,

36

C. Clearly Established Federal Law
The Supreme Court has never recognized, explicitly or implicitly, an Eighth Amendment
right to be indicted for a capital offense within any particular time frame following the commission
of a capital offense.
The Supreme Court has addressed the issue of preindictment delay on several occasions.
In United States v. Marion, 404 U.S. 307 (1971), the Supreme Court held (1) the Sixth
Amendment’s Speedy Trial provision affords no protection from pre-indictment delay in a
criminal prosecution,” id. at 313-21, (2) the applicable statute of limitations is the primary
guarantee against bringing overly stale criminal charges,’ id. at 321, but (3) the Due Process
Clause of the Fifth Amendment would require dismissal of an indictment if it were shown that the
pre-indictment delay caused substantial prejudice to the defendant’s rights to a fair trial and that
the delay was an intentional device to gain tactical advantage over the accused, id. at 324.4 In
United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court drew a clear distinction between
pre-indictment delay intended to deprive the defendant of due process and investigative delay
designed to permit law enforcement authorities to gather relevant evidence, thoroughly determine
the potential involvement of others in an offense without tipping off other perpetrators, and make
an informed decision whether to proceed with a particular prosecution: “investigative delay is
fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over

"Sts is either a formal indictment or information or else the actual restraints imposed by arrest and holding
to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth
Amendment.” Marion, 404 U.S. at 321.
3 Id.
54 In Marion, the 38-month delay between the end of the fraudulent scheme charged in the indictment and
the date the defendants were indicted did not extend beyond the applicable statute of limitations and there was no
claim that undue delay violated Due process principles, /d. at 325.

37

the accused.’” Id. at 795 (quoting Marion, 404 U.S. at 324). “[T]o prosecute a defendant
following investigative delay does not deprive him of due process, even if his defense might have
been somewhat prejudiced by the lapse of time.” Lovasco, 431 U.S. at 796.
D, AEDPA Review
As a practical matter, delay in bringing a capital charge makes it more difficult for both
(1) the defense to assemble potentially mitigating evidence about the defendant’s background or
character, and (2) the prosecution to assemble aggravating evidence showing the defendant’s
propensity for committing future acts of violence, history of other criminal misconduct, and lack
ofremorse. In both instances, there is the potential for witnesses’ memories to fade, witnesses to
become unavailable, and relevant documentary evidence to become unavailable or more difficult
to obtain. Thus, pre-indictment delay has the potential to harm both the prosecution and defense
inacapital case. Pre-indictment delay is neither more inherently advantageous nor prejudicial to
either party in a capital prosecution. That is why the mere passage of time is insufficient to
support a due process claim based on pre-indictment delay, even if the time lapse prejudiced the
defense. See United States y. Seale, 600 F.3d 473, 479 (5th Cir, 2010) (‘Although more than
forty years elapsed from the date of the alleged crime to Seale’s indictment, this fact alone does
not establish a due process violation.”).
To support a Fifth Amendment due process challenge, the Fifth Circuit requires a showing
that (1) the prosecution intended to delay obtaining an indictment for the purpose of gaining some
tactical advantage over the accused in the contemplated prosecution or for some other bad faith
purpose and (2) the improper delay caused actual, substantial prejudice to the defense. Woodfox
v. Cain, 609 F.3d 774, 804 (5th Cir, 2010); Seale, 600 F.3d at 479; United States v. Crouch, 84
F.3d 1497, 1512-13 (Sth Cir. 1996) (en banc) (recognizing that “grounding a due process violation

38

on the basis of good faith but inadequate, ineffective, or insufficient governmental personnel or
management leading to preindictment delay runs counter to two basic constitutional principles

[First], historically th{e] guarantee of due process has been applied to deliberate decisions of
government officials to deprive a person of life, liberty, or property[;] and [second], the Due
Process Clause . . . is not implicated by the lack of due care of an official causing unintended injury
....” (emphasis in original) (internal citations and quotation marks omitted)).
The state habeas trial determined there is no statute of limitations for murder in Texas.”
This construction of state law, adopted by the Texas Court of Criminal Appeals when it accepted
the trial court’s recommendation, is binding in this federal habeas corpus proceeding. See
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted) (“We have repeatedly held that a
state court’s interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”); Garza v. Stephens, 738 F.3d 669, 677
(5th Cir. 2013) (holding that a Texas habeas court’s interpretation of evidentiary rules was binding
in a federal habeas case).
The state habeas trial court also found that (1) the prosecution did not intentionally delay
Petitioner’s indictment to gain a tactical advantage;°° (2) the entirety of the 23-year gap between
Samota’s murder and Petitioner’s indictment was the product of investigatory delay;°’ (3) the
prosecution did not develop Petitioner as a suspect in Samota’s murder until 2008 when it
undertook DNA testing of the vaginal swab obtained during Samota’s autopsy and compared the

55 State Habeas Trial Court’s Findings & Conclusions at 16; State Habeas Tr., vol. I at 59.
56 State Habeas Trial Court’s Findings & Conclusions at 25; State Habeas Tr., vol. I at 68.
57 State Habeas Trial Court’s Findings & Conclusions at 25, 45-47, 49-51; State Habeas Tr., vol. I at 68, 88-
90, 92-94.

39

sperm fraction of that sample with Petitioner’s known DNA;°* and (4) Petitioner did not suffer
actual, substantial prejudice as a result of the pre-indictment delay. Petitioner has presented this
Court with no specific factual allegations, much less clear and convincing evidence, showing that

any of the state habeas court’s factual findings on these subjects were incorrect. Under such
circumstances, the state habeas court’s factual findings are presumed correct. See Schriro, 550
U.S. at 473-74 (‘AEDPA also requires federal habeas courts to presume the correctness of state
courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing
evidence.’” (quoting 28 U.S.C. § 2254(e)(1)); Rice, 546 U.S. at 338-39 (same); Miller-El, 545 U.S.
at 240 (same); 28 U.S.C. §2254(e)(1).

58 Td

5° State Habeas Trial Court’s Findings & Conclusions at 18-25; State Habeas Tr., vol. I at 61-68. Having
independently reviewed the entirety of the record from Petitioner’s state habeas corpus proceeding, this Court
concludes the state habeas court’s conclusion and factual findings were fully supported by the record before that court.
Petitioner presented no evidence showing that the 23-year gap in connecting Petitioner to Samota’s murder was the
product of anything more than investigatory delay. The State habeas trial court found.that Petitioner’s DNA was not
loaded into the CODIS database until January 2002 and DNA testing was not begun on the vaginal swab until January
2008. State Habeas Trial Court’s Findings & Conclusions at 25, 45-47, 49-51; State Habeas Tr., vol. I at 68, 88-90,
92-94, Petitioner did not present the state habeas trial court with any evidence contradicting this factual finding.
Petitioner did argue before the state habeas court, and once again argues in this Court, that at least some
potential witnesses became unavailable during the 23-years between his capital offense and the date of his capital
murder trial. The state habeas cout found that Petitioner failed to establish that any of the unavailable witnesses
could have presented the jury with any additional mitigating evidence not otherwise available to Petitioner at the time
of his capital murder trial. See State Habeas Trial Court’s Findings & Conclusions at 24; State Habeas Tr., vol. | at
67:
The Court finds that while some of the unavailable records and individuals may have
provided information about applicant’s background, upbringing, and influences, it would not have
altered or improved his mitigation defense.
The Court finds that, in all likelihood, the individuals and records would have provided
information similar to that successfully obtained elsewhere. And even if they had provided some
novel information, there is no reasonable probability that it would have altered the jury’s answers
to the special issues.
Furthermore, Petitioner gained several advantages during that time period: he aged and suffered from
ailments that may have made him more sympathetic, id., and, one of the Petitioner’s rape victims passed away prior
to the trial and, therefore, did not testify against him.
40

E, Conclusions .
Petitioner’s complaint of preindictment delay does not satisfy either prong of the due
process analysis outlined in the Supreme Court’s Marion-Lovasco line of cases. Petitioner has
identified no clearly established Supreme Court precedent establishing an Eighth or Sixth
Amendment right to expeditious indictment following the commission of a capital offense.
The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s complaint of
pre-indictment delay was neither contrary to, nor involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States, and did not
result in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in Petitioner’s state habeas corpus proceeding. Petitioner’s ninth claim for
federal habeas corpus relief is without arguable merit.
Vv. ADMISSION OF DR, GILLILAND’S TESTIMONY
A, The Claim
In his eighth claim, Petitioner argues that the state trial court erred in admitting the expert
opinion testimony of prosecution witness Dr. Gilliland, who opined that “the intercourse was not
consensual, and contemporaneous with the murder,.”™
B. State Court Disposition
Petitioner argued in his eighteenth and nineteenth points of error on direct appeal that the
state trial court erred in admitting Dr. Gilliland’s opinion testimony because it was unreliable.”
The Texas Court of Criminal Appeals concluded that Petitioner procedurally defaulted on this

6° First Am. Pet, 79-80, Dr. Gillitand’s actual trial testimony is summarized in detail in note 2 above.
6! Br, for Appellant 63-65.

41

complaint by failing to contemporaneously object and, alternatively, concluded that the state trial
court correctly applied Texas evidentiary rules when it admitted Dr. Gilliland’s testimony. Bess,
2013 WL 827479, *25-26.
C. Clearly Established Federal Law
Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory,
or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984),
In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a
federal court does sit as a super-state appellate court. Estelle, 502 U.S. at 67-68; Lewis, 497
USS. at 780; Pulley, 465 U.S. at 41.
When a federal district court reviews a state prisoner’s habeas corpus petition
pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is “in custody
in violation of the Constitution or laws or treaties of the United States.” The court
does not review a judgment, but the lawfulness of the petitioner’s custody
simpliciter.
Coleman v. Thompson, 501 U.S. 722, 730 (1991) (citations omitted).
Insofar as Petitioner argues his state trial court erroneously accepted Dr. Gilliland as an
expert witness and improperly allowed Dr. Gilliland to express an opinion regarding the
contemporaneous nature of Samota’s act of intercourse and murder, Petitioner’s complaints turn
initially on interpretations of state evidentiary rules. The Texas Court of Criminal Appeals’
conclusion in the course of Petitioner’s direct appeal that Dr. Gilliland’s testimony was admissible
under applicable state evidentiary rules is binding upon this Court in this federal habeas corpus
proceeding. See Bradshaw, 546 U.S. at 76 (“We have repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”).
42

A federal court may grant habeas relief based on an erroneous state court evidentiary ruling
only if the ruling violates a specific federal constitutional right or is so egregious it renders the
petitioner’s trial fundamentally unfair. Payne v. Tennessee, 501 U.S, 808, 825 (1991); Darden v.
Wainwright, 477 U.S. 168, 179-83 (1986); Wood v. Quarterman, 503 F.3d 408, 414 (Sth Cir.
2007); Brown v, Dretke, 419 F.3d 365, 376 (5th Cir. 2005), Thus, the question before this Court
is not whether the state trial court properly applied state evidentiary rules, but, rather, whether
Petitioner’s federal constitutional rights were violated by the state trial court’s rulings on
evidentiary matters. See Bigby v. Dretke, 402 F.3d 551, 563 (Sth Cir. 2005) (holding that federal
habeas review of a state court’s evidentiary ruling focuses exclusively on whether the ruling
violated the U.S. Constitution).
D, AEDPA Review
The scope of this Court’s review of Petitioner’s complaints about the admission of
Dr. Gilliland’s testimony is narrow:
Due process is implicated only for rulings “of such a magnitude” or “so
egregious” that they “render the trial fundamentally unfair.” It offers no authority
to federal habeas courts to review the mine run of evidentiary rulings of state trial
courts. Relief will be warranted only when the challenged evidence “played a
crucial, critical, and highly significant role in the trial.”
The due process inquiry must consider the significance of the challenged
evidence “in the context of the entire trial.” We have held that the Due Process
Clause does not afford relief where the challenged evidence was not the principal
focus at trial and the errors were not “‘so pronounced and persistent that it
permeates the entire atmosphere of the trial.” This is a high hurdle, even without
AEDPA’s added level of deference.

_ Gonzales v. Thaler, 643 F.3d 425, 430-31 (Sth Cir. 2011) (footnotes omitted).
The admission of Dr, Gilliland’s testimony did not render Petitioner’s capital murder trial
fundamentally unfair. Dr. Gilliland’s testimony was admissible under state evidentiary rules.
Furthermore, contrary to Petitioner’s assertions in his eighth claim, Dr. Gilliland did not testify

43

that Samota had non-consensual intercourse; rather, Dr. Gilliland testified that (1) the absence of
visible injuries to Samota’s cervix and genitals did not preclude a finding that Samota was the
victim of a non-consensual sexual assault; (2) the nature of Samota’s chest wounds suggested she
struggled while being stabbed; (3) there was no evidence the viscous material observed in
Samota’s vaginal vault had liquified; (4) because of the lack of drainage from Samota’s vaginal
vault, it did not appear she had moved since having intercourse; (5) there were no injuries to
Samota’s cervix or external genitalia; and (6) based upon the condition of Samota’s body and the
contents of Samota’s vaginal vault, she believed Samota had intercourse at or near the time of her
murder.
Another prosecution expert, veteran OBGYN Dr. Claudia Werner, testified at trial without
contradiction that the vast majority of sexual assault victims she had examined showed no signs
of injury or trauma to the external genitals.’ Dr. Werner also (1) opined that she would not expect
to see intact sperm more than four-to-six hours after intercourse; (2) testified that she had never
seen large numbers of intact sperm during a sexual assault examination; and (3) testified she had
never seen congealed semen in her clinical practice, possibly because semen liquifies and clears
the vagina very quickly after intercourse in live women due to gravity, urination, and bowel

62 Trial, test. of Dr. M.G.F. Gilliland, vol. 43 at 179-81, 184-86, 191-96, 204-22; vol, 44 at 34-36, 40-
41, On cross-examination, Dr. Gilliland testified that (1} the lab found phosphates and a very large number of intact
sperm in Samota’s vaginal swab; (2) while it is possible to find isolated intact sperm cells up to seventy-two hours
after intercourse, sperm usually break down within six hours; 3) the high concentration of phosphates in Samota’s
vaginal swab was consistent with recent intercourse, as was the visible blob of material in Samota’s vaginal vault; (4)
semen begins to liquefy within an hour; and (5) it was not possible to determine the order in which Samota suffered
her injuries. S.F. Trial, Test. of Dr. M.G.F. Gilliland, vol. 43 at 233-37; Volume 44, at 18-23.
63 $F. Trial, Test. of Dr. Claudia Werner, vol. 44 at 94-96.

44

movements. Petitioner presented the state trial court, and presents this Court with absolutely no
evidence, showing that he ever had consensual intercourse with Samota,
The jury was free to infer the nonconsensual nature of the sexual assault upon Samota from
the uncontradicted evidence showing (1} Samota called her boyfriend in distress shortly before her
body was discovered to inform him that she had allowed a man into her residence; (2) shortly after
that telephone call ended abruptly, Samota’s lifeless body was found lying nude in her bed inside
her dark, locked residence; (3) Samota had eighteen chest wounds; (4) the crime scene photographs
and blood spatter evidence suggesting that something had been placed at least partially over
Samota’s face while she was being stabbed; (5) the defensive injuries to Samota’s hands; (6) the
large number of intact sperm found in Samota’s vaginal swab at autopsy; and (7) the lewd manner
in which her body had been posed. The jury was free to infer that Samota was sexually assaulted
at or near the time of her murder from the foregoing expert testimony, as well as testimony of
Samota’s friends (Ana Elena Kadala, Russell Buchanan, and Benjamin McCall) establishing
Samota’s movements in the hours immediately before her murder.®
Petitioner’s expert pathologist Dr. James Traylor opined that (1) just because there were
viscous secretions in Samota’s vagina did not mean there was sexual activity in close proximity to
her death; (2) intact sperm can be found up to 120 hours after intercourse; (3) in living individuals,
sperm can survive even longer in cervical mucous; (4) the viscosity of Samota’s vaginal swab was
more likely due to cervical mucous than the presence of ejaculate; (5) if Samota had intercourse at
or neat the time of her death, he would have expected to find leakage from her vagina on her
sheets; (6) he could not determine from the record whether a woods lamp had been used to examine

84 Td. at 97-101,
Kadala was with Samota shortly before the murder.
45

Samota’s perianal region or bed sheets (for vaginal leakage); (7) Samota’s case was atypical of
sexual assault cases because there was no damage to her head or the inside of her thighs; (8) from
the crime scene photographs, he believed Samota was sitting upright when initially attacked and
she collapsed on her side toward her headboard; (9) the number of stab wounds suggested a jealous
frenzy; (10) he had trouble with the prosecution’s rape scenario because of the absence of external
injuries; (11) he could not say to a medical degree of certainty that Samota engaged in sexual
activity in close proximity to her death; and (12) he could not say that sexual activity took place
on Samota’s bed.®® Petitioner did not present the trial court with any evidence showing the sperm
fraction of Samota’s vaginal swab came from anyone other than Petitioner.
Thus, both parties presented the jury with expert opinions regarding the temporal proximity
of sexual activity and Samota’s murder, Petitioner’s jury was free to judge the relative credibility
of the parties’ dueling experts. Petitioner presented the state courts, and presents this Court, with
no evidence showing Dr. Gilliland’s trial testimony was incredible as a matter of law.
In fact, Dr. Werner gave essentially the same opinions as Dr. Gilliland and even more
compelling explanations as to why it was unreasonable to believe that Samota had intercourse a
substantial amount of time before her lifeless, nude body was discovered on her bed in her
residence with Petitioner’s semen (including a large number of intact sperm) inside her vagina.
Petitioner does not challenge the admissibility of Dr. Werner’s testimony as a matter of
constitutional principle. Though Petitioner’s expert Dr. Traylor had a different take on the
forensic evidence than Dr. Gilliland and Dr. Werner, the experts’ disagreement does not render
Dr. Gilliland’s testimony inadmissible under federal constitutional principles. See Wood, 503

66 SF, Trial, Test. of Dr. James Traylor, vol. 46, at 23-101.

46

F.3d at 414 (the erroneous admission of prejudicial evidence will justify habeas relief only if the
admission was a crucial, highly significant, factor in the defendant’s conviction). In light of the
multitude of circumstantial evidence the prosecution presented establishing that Samota was
sexually assaulted in close proximity to her murder,®’ the admission of Dr. Gilliland’s opinion
testimony was not a critical or highly significant factor in bringing about Petitioner’s conviction.
See Green vy, Johnson, 160 F.3d 1029, 1047 (Sth Cir. 1998).
Furthermore, given the entirety of the evidence presented during the guilt-innocence phase
of Petitioner’s capital murder trial, the admission of Dr. Werner’s testimony rendered harmless
any error in the admission of Dr. Gilliland’s testimony regarding the likelihood that Samota was
murdered at or near the time she engaged in sexual activity. See Brecht v. Abrahamson, 507 US.
619, 623-24 (1993) (the test for harmless error in federal court is “whether the error had a
substantial and injurious effect or influence in determining the jury’s verdict”).
E. Conclusion
The Texas Court of Criminal Appeals’ rejection on the merits of Petitioner’s complaint
about the admission of Dr. Gilliland’s testimony was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States, and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in Petitioner’s direct appeal.
Petitioner’s eighth claim for federal habeas corpus relief is without arguable merit,

*? This includes the forensic evidence showing the presence of substantial number of infact sperm in Samota’s
vagina at autopsy, the number of stab wounds inflicted upon Samota, and the fact she was discovered lifeless and nude
in her bed only a short time after she was last seen alive by McCall and then minutes later spoke with him on the
telephone.

4]

VI. EXCLUSION OF DR. VIGEN’S HEARSAY TESTIMONY
A, The Claim
In a portion of his fifth claim, Petitioner argues the state trial court erroneously excluded
the hearsay portion of defense expert Dr. Mark Vigen’s testimony and thereby deprived Petitioner
of critical mitigating evidence in violation of due process principles.°®
B. State Court Disposition
Petitioner presented challenges to the trial court’s rulings on his trial counsels’
unsuccessful attempts to introduce hearsay testimony from defense expert Dr. Vigen as Petitioner’s
twenty-seventh and twenty-eighth points of error on direct appeal.” The Texas Court of Criminal
Appeals rejected these complaints on the merits, concluding (1) the trial court properly excluded
the hearsay portion of Dr. Vigen’s proffered testimony under state evidentiary rules” and (2)
exclusion of the hearsay portion of Dr. Vigen’s proffered testimony did not violate Petitioner’s
constitutional rights to due process, compulsory process, or the opportunity to investigate and
develop potentially mitigating evidence. Bess, 2013 WL 827479, at *33-36.
C. AEDPA Analysis
The same constitutional principles that guided this Court’s review of Petitioner’s
complaints about the admission of Dr. Gilliland’s testimony discussed above, see supra § V,
govern Petitioner’s complaints about the exclusion of the hearsay portion of Dr. Vigen’s proffered

88 First Am. Pet. 71-75. For asummary of Dr. Vigen’ testimony, see supra §§ 1.D.2, 1.D.4.
Br. for Appellant 82-87.
% Bess, 2013 WL 827479, at #34 (“Admission of the complained of statements would have inappropriately
shifted the focus of Vigen’s testimony from his conclusion that Appellant would not be a future danger to the opinion
of correction officers who never appeared as witnesses in either party’s case-in-chief.”).

48

testimony. Having reviewed the entirety of the record from Petitioner’s trial, the Court concludes
the exclusion of Dr. Vigen’s proffered hearsay testimony did not render Petitioner’s trial
fundamentally unfair. The state trial court permitted Dr. Vigen to identify and offer extensive
summaries of comments favor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448565. Public record. Not legal advice.