Napper, Ex Parte Lawrence James

IN THE COURT OF CRIMINAL APPEALS

OF

TEXAS

NO.

AP-76,284 & AP-76,285

EX

PARTE LAWRENCE JAMES NAPPER, Applicant

ON

APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

Keller,

P.J. , delivered the opinion of the

Court in which Meyers, Womack, Keasler, and

Holcomb, JJ., joined. Cochran,

J., joined except section II B 2.

Price, Johnson, and hervey, JJ., concurred.

Applicant

was convicted of aggravated sexual assault and aggravated kidnapping. Some of the evidence supporting the

convictions involved DNA testing conducted by the Houston Police Department

(HPD) Crime Lab. After widespread

problems were discovered with the HPD Crime Lab, the present case was subjected

to further investigation, including additional DNA testing. Applicant has filed an application for a writ

of habeas corpus based upon this further investigation. He alleges, among other things, that agents

of the State consumed the entire DNA sample in bad faith, that a state witness

perjured himself or gave false testimony, and that defense counsel was

ineffective for failing to discover the problems with the lab = s testing and its analysis of test results. We conclude that, despite problems with the

lab, applicant = s claims are without merit.

I.

BACKGROUND

A.

Before Trial

1.

The Kidnapping

On February

11, 2001, six-year-old A E.T. @ was kidnapped.

One of E.T. = s friends was ten-year-old Remington Allen. While E.T. = s

mother worked that day, Remington = s grandmother cared for E.T., his nine-year-old

brother A Junior, @ and his ten-year-old sister Denetta. Remington, Junior, and their friend Carlos

went to a nearby park. Denetta and E.T.

walked with them, but crossed the street to go to a store. Denetta went inside the store. E.T. may have accompanied her, but at some

point he was outside again. While

Remington, Junior, and Carlos played at the park, they saw a man drive up in a

car and tell E.T. to A come here. @ Remington

told E.T. not to get in the car.

The trial

testimony of the children diverged somewhat at this point. Remington testified that the man got out of

the car and acted like he was picking something up. Remington also testified that he saw the man

hand E.T. some money when E.T. got into the car. However, on cross-examination, Remington

agreed that he never saw the man. Junior

testified that he saw the man inside the car and that the man had a mustache

and was wearing sweats. On

cross-examination, Junior agreed that he did not remember much about the car or

the man inside the car because he did not see the man. Junior further testified that he did not

know if the man ever got out of the car.

E.T. testified that the man tried to get him to take money and then got

out and put him in the car.

Remington,

Junior, and E.T. all testified that the car sped away quickly once E.T. was in

it. Junior and Remington chased the

car. Remington picked up his scooter and

threw it at the car, but the car did not stop.

The children remained at the park for A a

little bit @ to see if the man would bring E.T. back. The children then went to A Momma Ruth = s @ place, which was close by, but no adults were home,

so they went back up the street to Remington = s

grandmother = s house. At

first, Remington = s grandmother did not believe the children = s story about E.T. being kidnapped, but once she

became convinced, she called the police.

At trial,

Remington described the car as a A burgundy-like @ Oldsmobile with a white top. When asked whether the wheels were shiny, he

responded negatively. Junior testified

that the car was dark green with a blue top, and scratches at the top. Both Remington and Junior testified that they

had picked out a car in a videotape lineup, but they were not asked which car

they picked.

Houston

Police Officer D.D. Thompson was dispatched to the scene at 3:12 p.m. and

arrived at 3:19 p.m. According to

Officer Thompson, the children described the kidnapper = s vehicle as an Oldsmobile C some said a Monte Carlo. He explained that the A children couldn = t pinpoint exactly what make and model it was. @ The

descriptions and the colors given by the children were not consistent. The car was variously described to him as a

two-door or a four-door, as dark blue or dark green, with a rusty top or a

black top or a vinyl top, and with chrome wheels. Officer Thompson dispatched a description

that included model years from 1980 to 1990.

Sergeant

Larry Hoffmaster testified that Junior described the car as a mid-sized gray

car with chrome rims and with damage to the front around the headlights. Sergeant Hoffmaster further testified that

the children were taken to a police sketch artist to make a composite drawing

of the suspect. The general broadcast

for the suspect indicated a A skinny black male, @ but

Sergeant Hoffmaster acknowledged that applicant was not skinny. When asked if he developed any suspects whose

vehicles were black or dark in color, Sergeant Hoffmaster said no.

2.

Aftermath

E.T. was

returned to the neighborhood the next day.

He was crying, and his face was bruised and swollen. E.T., who is African-American, described his

kidnapper as having skin color that was a little darker than his own. [1] E.T. described the man as having no facial

hair, wearing eyeglasses, wearing a black hat, and wearing a purple jacket with

green (or a purple and green jacket) and matching purple pants. E.T. described the car as a dark navy blue in

color, like his tennis shoes, with a brown interior, and with a black console

between the front two seats.

E.T.

related that the man offered him money, and when E.T. got closer, the man

pulled him into the car. The kidnapper

took E.T. to a house that had a brown couch in the front room and a television

next to the bed in the bedroom. He tied

E.T. = s arms and legs to the corners of the bed. E.T. also said that the man rubbed A orange grease @ on his body.

The man told E.T. that A if I tell anybody he = s

going to kill me. @ When asked

if he had been touched inappropriately, E.T. A clammed

up @ and started A tearing up. @ When asked

by another officer what happened after he was tied to the bed, E.T. became

extremely upset, crying and breaking down into hysterics.

E.T. was

taken to the hospital the day he was returned. Pursuant to instructions from

Chemist Reidun Hilleman at the HPD Crime Lab, Officer Lorenzo Verbitskey

swabbed E.T. = s face.

Verbitskey let the resulting two swabs air dry in his office. He then delivered the swabs to Hilleman. Hilleman also received anal and oral swabs

and clothing. Hilleman gave the swabs to

Mary Childs-Henry, a forensic biologist at the HPD Crime Lab who analyzed body

fluids and conducted serology testing.

Childs-Henry extracted two tubes of DNA from each of the face swabs

(four tubes in all). For each swab, one

of the tubes contained a sperm fraction and the other tube contained an

epithelial fraction of the genetic material.

She then discarded the original swabs.

E.T.

subsequently made an outcry to his aunt, Tangela Harding: E.T. described his

kidnapper as wearing a baseball hat, wearing eyeglasses, and having a short

haircut. The house had two rooms, and

they went up some stairs to get into the house.

The man said he was going to pull out his thing (Tangela understood E.T.

to be referring to his penis) and wanted E.T. to put it in his mouth. When E.T. said no, the man started slapping

him. So E.T. complied, his mouth started

hurting, and the man A wet his face. @ This outcry

was relayed to the police on February 14 th . That same day, E.T. was taken to have two

composite sketches done of his kidnapper C one with eyeglasses and one without.

Joseph Chu,

a chemist at the HPD Crime Lab, received the four tubes of DNA that had been

derived from the face swabs. Chu = s typing of the DNA was completed on February 20 th . Chu effectively consumed the entire sample in

all four tubes during testing. [2] He determined that the sample was a mixed

sample and that DNA patterns within the sample showed that a portion of the

sample was consistent with E.T. = s DNA. He did

not at that time have any information regarding the identity of any other

contributor.

On February

23 rd , E.T. told Officer Shawn Valenta that the kidnapper referred to

his house as A his friend = s house. @ E.T.

described the house as wood frame, with about four concrete steps, and a number

A 2 @ on the front of the building. Applicant was not in custody at the time E.T.

communicated this information.

Later that

day, police received a Crime Stoppers tip implicating applicant. Sergeant Hoffmaster obtained a photograph of

applicant and compared it to the composite; he could not eliminate applicant as

a suspect based upon a comparison of the two.

Sergeant Hoffmaster discovered that applicant had an outstanding parole

warrant and went to applicant = s house at 8602 Alsuma. [3] The house matched the description given by

E.T.: a white wood frame home with a concrete sidewalk leading to two concrete

steps in the front and the number 2 in the address. The address was on the mailbox and above the

door to the house. The car parked in

front of the house was a 1982 Buick Regal, with white vinyl over dark

gray. The interior of the car was brown

with gray. There was no grille in the

front and there was damage around the headlights.

Applicant

was arrested on the parole warrant at 10:00 p.m. that day. On February 24 th , the police

obtained a search warrant for applicant = s house, car, and body. Police discovered that

applicant = s house had two rooms that were in use: a living

room and a bedroom. [4] The living room contained only one piece of

furniture: a brown sofa. In the bedroom

was a four-poster bed with a headboard and a footboard, a television on a stand

beside the bed, and a nightstand beside the bed. On the nightstand was a bottle

of orange cocoa butter lotion. A Houston

Oilers cannister and purple pants were also found in the house. A dark baseball cap and a multicolored

windbreaker with dark sleeves and a purple inlay was recovered from the

vehicle.

The next

day, Sergeant Hoffmaster recorded a videotaped lineup that included

applicant. He also recorded a video

lineup that included applicant = s car and four other cars. Before the video lineup of applicant was

shown, witnesses were told to view the entire videotape and see if they

recognized anyone, A and if they didn = t

recognize anyone they should tell us that, that it was okay to do that. @ In addition,

they were told to view the entire tape before saying anything or making any

decisions. When the suspect-lineup video

panned on applicant (in the number three position), a big smile came upon E.T. = s face, but E.T. continued to watch the rest of

video. As soon as he was asked if he

recognized anyone, E.T. immediately pointed to applicant and said, A That = s the man that took me to his friend = s house. @ E.T.

indicated that he was positive in his identification. E.T. also identified applicant = s car in the vehicle lineup.

On February

28 th , Chu received applicant = s reference sample for DNA testing. It was found to be consistent with the

remaining portion of the DNA from the face swabs.

On March 15 th ,

E.T. told Officer Valenta that applicant had placed his private part in his

mouth and peed in his mouth. When asked

what he meant by private part, E.T. pointed to his penis.

3.

HPD = s DNA Test Results

The

following table summarizes the results obtained from Chu = s testing of the face-swab DNA contained in the four

tubes and from the victim = s and applicant = s reference samples: [5]

Sample

D3

VWA

FGA

AMEL

D8

D21

D18

D5

D13

D7

Napper

16

17

18.2, 21

XY

14, 15

29, 32.2

16, 20

10, 13

11, 12

8, 10

Swab

#1

EF

15, 16

17, 19

19, 22

XY

14

28, 31.2

12, 18

12, 13

10

11, 14

8, 10

Swab #1

SF

15, 16

17, 19

18.2, 21

19, 22

XY

14, 15

18, 32.2

29

16, 20

12, 13

10

11, 14

12

8, 10

Swab #2

EF

15, 16

17, 19

--

XY

14

28, 31.2

--

12, 13

11, 14

--

Swab #2

SF

15, 16

17, 19

18.2, 21

19, 22

XY

14, 15

28, 31.2

29, 32.2

12, 18

16, 20

12, 13

10

11, 14

12

8, 10

Victim

15, 16

17, 19

19, 22

XY

14

28, 31.2

12, 18

12, 13

11, 14

8, 10

With

respect to the results for the four swab samples displayed in the table, the

alleles unique to applicant (possessed by applicant but not by the victim) are

displayed in bold. [6] As can be seen from the table, the epithelial

samples did not yield particularly useful results. One of the epithelial samples yielded results

at all ten of the loci covered by the test, matched the victim = s DNA profile at all ten loci, and matched ten

alleles from applicant that were distributed across seven loci. [7] But only one of the alleles matching

applicant was foreign to the victim. [8] The other epithelial sample yielded results

at only seven of the ten loci, matched the victim = s

profile at those seven loci, and matched seven alleles from applicant that were

distributed across six loci. [9] But none of the alleles in the second

epithelial sample that matched applicant were foreign to the victim. [10]

The sperm

samples yielded far better results. Both

samples yielded results at all ten loci.

The first sample matched the victim = s DNA profile at nine of the ten loci, matched all

of applicant = s alleles except one, and matched eight alleles from

applicant (distributed across six loci) that were foreign to the victim. [11] The second sample matched the victim = s applicant = s profiles in their entirety and matched nine

alleles from applicant (distributed across six loci) that were foreign to the

victim. [12] With respect to all of the samples, all of

the alleles foreign to the victim were alleles that matched applicant = s profile. [13]

4.

Trial Preparation

On April

23, 2001, defense counsel Steven Greenlee filed a motion to preserve/motion for

independent analysis of semen and fibers C which included a request to hire a defense DNA

expert at county expense to conduct the independent analysis and to testify at

trial. That motion was granted. The

prosecutors, Di Glaeser and Denise Nassar, had an open file policy and were

prepared to fully cooperate with the defense regarding matters of

discovery. Glaeser called the HPD Crime

Lab to arrange for the delivery of DNA material for independent testing by the

defense. Chu told her that there was no

DNA material left because it had all been used up in the HPD Crime Lab = s analysis.

Glaeser conveyed this information to Greenlee. After discovering that there was no DNA

material left to test, Greenlee decided not to hire a DNA expert.

At a

pretrial hearing, applicant complained that his attorney had not done any

investigation. He claimed that Greenlee

had not disclosed to him copies of files, DNA, police reports, warrants, or

anything else. Applicant complained that

Greenlee A has no experience or knowledge about DNA to question

any DNA expert officially. @ Applicant made numerous other complaints about his

attorney that we need not detail here.

The trial judge explained that applicant was free to hire his own

attorney if he could do so, but he was not free to choose his court-appointed

counsel.

B.

Trial

1.

State = s Case

The

evidence outlined in part A, subparts 1 and 2, of this opinion was presented at

trial. In addition, testifying by

closed-circuit television, E.T. related the events of his kidnapping. He testified that his kidnapper wore a purple

jacket, purple sweat pants, eyeglasses, and a blue hat. E.T. described the car that he was pulled

into as being light brown inside. E.T.

said that he was taken to a white, wood house with the numbers 2, 1, and 6 on

it. He further testified that he went up

concrete stairs to get into the house.

Inside the house was a brown couch and a black television. E.T. said that the kidnapper tied him to the

bed, with his A feet back @ and his A hands in the front. @ When asked, A Did he

tie you to parts of the bed with clothes? @ E.T. answered, A Yes. @ E.T.

testified that the television was on the side by the bed. With the help of anatomically correct dolls,

E.T. testified that the kidnapper put his A private @ in E.T. = s mouth. The

kidnapper subsequently gave E.T. a bath, but did not wash his face. The next day, the man took E.T. back to the

store where he had been abducted, and E.T. then went to Remington = s grandmother = s house.

E.T.

testified that he had previously pointed out the man who kidnapped him on a

video lineup. When shown photographs of

applicant = s purple jacket and pants, E.T. testified that they

looked like the ones his kidnapper had worn.

E.T. also testified that applicant = s house and concrete steps, depicted in photographs,

looked like the place the kidnapper had taken him to, and E.T. pointed to

circles on the sidewalk that he remembered seeing. E.T. also testified that a brown couch and a

Houston Oilers cannister that were depicted in photographs were items he had

seen in the kidnapper = s house.

However, when the camera panned around the courtroom and E.T. was asked

to identify his assailant, he did not do so.

The State

questioned Childs-Henry and Chu regarding their roles in subjecting the

face-swab samples to DNA analysis. The

focus of the State = s questioning was on the semen fraction of the DNA

samples.

Childs-Henry

testified regarding her role in extracting DNA material from the face swabs for

analysis. Although the quantity of the

sample was small, she determined that enough DNA was present for analysis. On cross-examination, defense counsel

questioned Childs-Henry concerning the DNA extraction protocol. Childs-Henry could not say how many steps

were in the extraction protocol that she followed.

When asked

whether an entire DNA sample could be consumed by testing, she responded that

such a thing could happen A if you are a sloppy chemist @ or A if there = s not enough sample. @ When asked whether the sample was large

enough not to have been completely consumed by testing, Childs-Henry responded

affirmatively, and she responded that the sample in this case was not entirely

consumed. A So

there = s a DNA sample left? @

defense counsel asked. A Yes, there is, @ she responded.

A And this was after Mr. Chu had done his analysis? @ defense counsel queried further. A Yes, @ Childs-Henry replied.

Chu

testified regarding his role in analyzing the DNA sample after it had been

extracted. Chu explained that he had a

Master = s degree in Chemistry, that he completed in-house

training as well as outside agency training on DNA analysis, and that he had to

pass a proficiency test twice each year on federal guidelines. Chu had been working eight years in the DNA

section of the HPD Crime Lab.

Chu

testified that he conducted the STR method of DNA analysis. He determined that the DNA was a mixture of

two individuals. One half was consistent

with E.T. = s DNA, he explained, while the other half was

consistent with applicant = s. A Statistically, @ the DNA results from the face swab material A matched @ applicant.

The odds of a random match with an individual other than applicant was

about the human population of the planet.

Chu later testified that he could be about 99.999 percent sure that swab

sample was applicant = s DNA, or about a one-in-1.3 trillion possibility of

a random match with another individual.

Chu also testified that he conducted a cross analysis of the DNA from

both swabs to make sure that they were consistent with each other.

On

cross-examination, Greenlee questioned Chu regarding whether any DNA material

was left for independent analysis. Chu

said that no evidence was left for re-analysis. A Very

unfortunately, this case it = s very small amounts, @ he

said, A I have to consume. @ Chu also testified that there were ways to

determine whether the sample was contaminated.

There were strict guidelines in the laboratory to monitor contamination;

controls in the DNA test itself would indicate whether contamination was

present. So, if a mistake were made, Chu

testified, it would show up. [14] A In this case we don = t have

any contamination in the laboratory to cause misleading results, @ he explained.

Greenlee = s cross-examination of Chu covered approximately six

pages of the trial record.

2.

Defense = s Case

Reverend

James Ginns testified that applicant was his nephew and that he, applicant, and

applicant = s brother had keys to applicant = s residence, but applicant was the only person who

lived there on February 11 th .

Although this evidence suggested that two other persons had access to

applicant = s home, no attempt was made to implicate either of

these two individuals in the crime.

David

Savage, applicant = s cousin, testified that applicant came to Savage = s grandmother = s house on February 11 th to have Savage

work on the stereo in applicant = s car.

Applicant arrived at the house between 10:30 and 11:00 a.m. Savage = s grandmother lived on Newbury Street, which was in

a part of town that was close to the Southmore location from which E.T. was

abducted. Savage testified that

applicant left between 2:30 and 3:00 p.m.

But Parole Officer Joel Butler later testified that Savage told him that

applicant left at about 1:30 p.m. Savage

testified that he remembered that day because he saw applicant on television

the day after E.T. was taken. A

prosecutor would later argue to the jury that, because applicant was not a

suspect until February 23 rd , Savage must have recognized applicant

on February 12 th from the composite drawing. [15]

Darlene

Savage, David Savage = s mother, said applicant left around 3:00 or 3:30

p.m., but she later said she thought he left before she did, and she left

between 2:30 and 3:30 p.m. On

cross-examination, she said that applicant left after 2:00 p.m. and then said

she did not really remember. Applicant = s brother, Ronnie, testified that applicant came by

his house between 3:30 and 4:00 p.m.

Ronnie further testified that applicant was alone, and did not stay

long, because he had to go back home.

Ronnie stated that he went over to applicant = s house about five or ten minutes later and stayed

thirty to forty-five minutes. Ronnie did

not see a child in the house or in applicant = s

car. Ronnie returned to applicant = s house at around 6:00 p.m., stayed for about ten

minutes, and still did not see a child in applicant = s house or car, despite the fact that he walked

through the entire house. On cross-examination, Ronnie said that his

second visit lasted thirty to forty minutes.

But Ronnie told Officer Valenta, in a

February 27 th conversation, that he went to applicant = s house at 5:00 p.m. on February 11 th , as

was his usual routine, and that he went there only once. Ronnie told Parole Officer Paul Ford that,

when he left applicant = s house, applicant was asleep. Ronnie testified that he saw his brother = s car when he left for work, between 5:00 and 6:00

a.m. on February 12 th , but he had told Officer Valenta that he had

seen the car at around 6:30 or 6:35 a.m.

Against his

professional judgment, Greenlee called applicant = s

parole officers, Butler and Ford, to the witness stand because applicant

insisted that he do so. Greenlee

discussed his reservations with the trial court, but applicant insisted that

calling these witnesses was essential to establishing an alibi by showing that

he was on electronic monitoring.

Applicant also expressed the opinion that he would have to A come behind @ these witnesses and testify, even though he knew

that doing so would enable the jury to learn his prior criminal record. Applicant reiterated his prior frustrations

with his attorney, referred to what he considered to be an earlier request to

represent himself, and indicated that he personally needed to question some of

the witnesses A because all the facts of this case is not being

brought out by my attorney, and he will not do it himself. @

The parole

officers testified that applicant was on parole for rape and aggravated

rape. Applicant was on the highest level

of supervision B the Super Intensive Supervision Program

(SISP). This program included electronic

monitoring. For a while, applicant was

on GPS monitoring. At that time, only

twenty-five people in the entire state were on that kind monitoring. Applicant was taken off GPS monitoring on

December 12, 2000, and placed a more traditional form of electronic monitoring,

which recorded only whether applicant was at home. Applicant was required to report to his

parole officer once a week, every Wednesday.

Under SISP,

restrictions were placed on where applicant could go and when he could be

there, and curfews were imposed. Where

applicant could go and when he could be there depended upon the weekly schedule

made out by his parole officer. On

February 11 th , applicant was allowed to leave the house at 10:00

a.m. to go to church until noon, and then he was allowed to go to his friend

Ben = s until 5:30 p.m.

Newbury Street was not a place that he was allowed to go that day.

On

February 18, 2001, a parole warrant issued against applicant for a curfew

violation. Applicant told his parole

officer that he was delayed in getting home that day because of a flat tire,

and he showed a tire in his car with a screwdriver sticking out of it as

proof. The warrant was in the TCIC

system, but applicant = s parole officers chose to investigate the warrant,

and a decision was later made to withdraw it, but applicant was arrested on the

warrant before it was withdrawn.

Finally,

applicant testified. Applicant denied

having anything to do with E.T. = s abduction and sexual assault. Applicant confirmed that he was on parole for

aggravated rape. Applicant said that he

received permission from his parole officer to go to Newbury Street, but the

parole officer just would not admit it.

Defense counsel asked, A You heard Mr. Butler testify; is that correct? @ Applicant

responded, A I heard him lie, yes. @ When asked by defense counsel when he

informed Butler that he would be visiting the Newbury residence on February 11 th ,

applicant first responded that would have told him on the 21 st , when

he visited the parole office. When

Greenlee explained that the time frame had to be before Sunday, February 11 th ,

applicant responded that he gave notice the Friday before, February 9 th . Applicant further testified that he had no

regularly scheduled reporting day C he just had to report every week. When confronted with the fact that Ford and

Butler said it was every Wednesday, applicant retracted his earlier statement

and confirmed that he was required to report every Wednesday. Then applicant claimed that he told Butler

about going to the Newbury address on February 7 th . When asked what his schedule was like on that

Sunday, applicant replied, A Oh, it = s different times, different Sundays that I am doing

different things on different days. What

particular Sunday are you asking me about? @

Greenlee

further asked, A You heard [Butler] testify that your initial

movement on Sunday was restricted to going to church, did you hear that? @ Applicant

responded, A Yeah, I heard him say it, but he = s lying. He = s lying. He

knew I was going over there. @ Defense

counsel later asked, A It = s your testimony you had authority or permission to

go to Newbury? @ Applicant

replied, A That = s true. @ Applicant also testified that there

was no damage to his car, and that the police department tore it up because

they were the only ones that had access to the car. He testified that he left

the Newbury address at around 2:30 to 2:35.

He said that he did not go straight home because he stopped to get some

gas, and then ran by Ronnie = s house.

When asked

whether he was familiar with the Southmore and Live Oak, Southmore-288 area,

applicant responded that he was, because he had been there in November or

December looking for his A brother = s sister @ [16] who was on drugs.

Applicant agreed that it was a restricted area and that he was in

violation of his parole. But then

applicant claimed that it was not a parole violation to drive through the area

so long as he was on his way to go somewhere he was allowed to go. Applicant stated that he went to the area

many times looking for his brother = s sister.

On cross-examination,

applicant conceded that he was in the area in October, November, and

December. When confronted with GPS

records, applicant said that he did not know but may have been in the Southmore

area on multiple occasions at times referred to in the records, with the last

time being on December 10 th .

He said that he was taken off GPS two days later. The prosecutor then asked, A I = m sure your parole officer will come in and tell us

that you had permission to cruise whatever area you wanted, is that correct? @ Applicant responded, A He

probably won = t. He won = t tell you nothing else that was the truth. @

Applicant

said that he told his parole officer that every Sunday from the middle of

December through his arrest he was going to his friend Ben = s on Sunday after church to work on his car. Later, the prosecutor asked, A Would you agree with me, Mr. Napper, that there were

many occasions when you would deviate from your weekly schedule and do whatever

you felt like doing? @ Applicant replied, A Well,

what = s your definition of deviate, going another

direction, or is that what you = re saying? @ Upon further

questioning, applicant agreed that he could go only to church or to Ben = s on Sunday unless he told his parole officer ahead

of time or there was an emergency.

Applicant

admitted to normally wearing a black baseball cap. When asked if he was taken from his residence

on February 23 rd , applicant responded, A I was kidnapped.

They didn = t have a warrant. @ With respect to whether there was body lotion

in his bedroom, applicant said that his brother had a lot of stuff there and

applicant A might have run in his room, grabbed it, put it in

there. @ When asked

who purchased the lotion, applicant said his brother = s sister purchased it.

Applicant

admitted that he had a prior aggravated rape conviction dated August 25, 1981,

but he claimed that he did not do it, that his attorney sold him out just like

in the present case. Applicant also

admitted that he pled no contest to rape on September 4, 1981, but he claimed

that he did not commit that crime either.

When asked about a rape conviction on September 13, 1979, applicant

claimed that he knew about only two rapes.

When asked, A You remember being placed on probation one time

before for rape? @ applicant responded, A I was

told that was dismissed or dropped. @ Applicant

admitted being convicted of indecent exposure on September 21, 1993. He claimed that he was sitting inside his car

peeing in a can, and he said he did not think he was guilty of that offense

either.

Applicant

acknowledged that, according to his electronic monitor, he arrived home at 3:07

p.m. on February 11, 2001. Applicant

protested that this effectively gave him an alibi because the victim was picked

up at 3:10 p.m. Applicant continued, A Parole officers know that. They won = t tell you all of that. They told the news media that. I don = t know why they won = t tell

the jury. That = s my reason for testifying. @

Applicant

also testified that the children did not describe his car: A It = s not light green or red. My car is dark. It = s gray. It = s not even black. @ After admitting that several of E.T. = s descriptions matched applicant = s house, applicant said, A You didn = t even put that in the indictment, that it was at my

house. [E.T.] was taken to an apartment before he come to my house. Y = all ain = t telling the jury that. @ [17] Applicant

denied telling Butler that Ronnie spent the night at his house on February 11 th .

3.

State = s Rebuttal

On

rebuttal, Sergeant Hoffmaster testified that applicant looked different at

trial than he did when Hoffmaster first encountered him. Butler testified that applicant told him on

February 27 th that Ronnie Napper came over to applicant = s house at 4:30 p.m. on February 11 th and

stayed all night. Butler also testified

that applicant never told him that he was not going to church that day or that

he wanted to go to the Savage residence.

Butler further testified that applicant did not have permission to be at

the Newbury address, and he testified that David Savage told him that applicant

left Savage = s grandmother = s house at 1:30 p.m.

Butler also testified that applicant had been instructed to take the

most direct route to his destination and was not authorized to travel around

the Live Oak and Calumet area for 30 minutes.

Finally,

Butler testified that applicant told him that he did not do it. Butler replied that if applicant did not do

it, then DNA ought to show that he did not do it. Applicant responded, A Well if it does, they are just setting me up. @

4.

Verdict and Judgment

The jury

found applicant guilty of aggravated sexual assault and aggravated

kidnapping. At punishment, applicant

testified and continued to maintain his innocence. After defense counsel completed his

questioning of applicant, applicant stated, A You

sold me out Greenlee. @ Greenlee

then rested the defense, and applicant stated, A I didn = t do it. I

swear I didn = t do this. @ While the

jury was in recess, applicant stated, A They framed me in this case. I will fight it the rest of my life. They framed me. @ When the jury was brought in, applicant

further stated, A Y = all going to pay me.

Fed investigation, as soon as I get a chance y = all going to pay me.

As soon as I can there = s going to be a fed investigation. @ Finding that

applicant had committed two prior sex-related felonies, the jury sentenced

applicant to an automatic life sentence. [18] When asked whether he had anything to say

before the trial judge pronounced sentence, applicant replied, A When they frame your family, remember me. That = s all I have to say. @

C.

After Trial

1.

Motion for New Trial

Applicant

gave notice of appeal, and the trial court appointed Bob Wicoff as appellate

counsel. Wicoff filed a motion for new

trial on applicant = s behalf, claiming that applicant was denied his

right to represent himself at trial and that he received ineffective assistance

of counsel. In connection with the motion, applicant submitted an

unsworn declaration in compliance with the Texas Civil Practices and Remedies

Code. [19] Among other things, applicant pointed out

that, although Greenlee elicited testimony from applicant = s parole officers that applicant was on electronic

monitoring on February 11, 2001, Greenlee failed to elicit any testimony from

them that the electronic monitoring confirmed applicant = s presence at home at 3:07 p.m. Applicant stated that this was the reason

that he had wanted to call these witnesses and that the failure to elicit this

information forced him to take the stand to testify about the matter. Wicoff also submitted an affidavit from

Butler, who expressed surprise at the fact that Greenlee failed to elicit this

information from him C leading Butler to wonder why defense counsel chose

to call him as a witness.

Wicoff also

filed a motion to hire a DNA expert at county expense, which was granted. Wicoff later submitted an affidavit from Dr.

Elizabeth Johnson, a forensic DNA expert who had developed some widely utilized

DNA analysis techniques.

Dr. Johnson

concluded that the testimony of Childs-Henry and Chu reflected A a lack of understanding @ on their part A as to some of the fundamental aspects of body fluid

identification, DNA extraction and typing as well as interpretation of results. @ Dr. Johnson

further stated that she had reviewed numerous HPD Crime Lab cases in which

these individuals performed analyses and she had detected serious errors in

most of these cases, including the A unnecessary consumption of the evidence due to poor

extraction protocols and techniques . . . and erroneous interpretation of data. @ She also

stated that re-testing was a critical part of the evaluation of a criminal case

involving DNA evidence and a necessary part of preparing an adequate

defense. A Because

DNA evidence can have a tremendous impact on the outcome of a criminal case, @ she explained, A it is

generally accepted in the relevant scientific community that re-testing needs

to be performed whenever the evidence permits this. @ Dr. Johnson

cited a National Research Council (NRC) recommendation that A whenever feasible, investigative agencies and

testing laboratories should provide for repeat testing. @

Dr. Johnson

further observed that, in this case, A as in many other cases I have reviewed involving the

Houston PD lab, the lab apparently consumed all of the critical evidence . . .

without notifying the prosecution of their intent to do so. @ She

explained that A [m]any laboratories @ with

which she was familiar would A not consume limited samples without notification so

that defense counsel can have the opportunity to have the testing observed if

duplicate testing is not possible. @

Although

re-testing was not possible, Dr. Johnson stated that a qualified expert should

have reviewed the bench notes from the HPD Crime Lab to determine whether A an error in the analysis was documented or if the

data obtained were interpreted and testified to correctly. @ Dr. Johnson

identified numerous questions that defense counsel should have asked

Childs-Henry and Chu, including A what were the relative proportions of major and

minor DNA contributors and the corresponding peak heights @ and whether there could be an A alternative interpretation of the mixed DNA profiles

other than the approach utilized by Mr. Chu in which he determines the DNA

profiles in the evidence based on his knowledge of the victim = s and defendant = s reference DNA profiles @ and A whether it was appropriate of Mr. Chu to isolate the

defendant = s profile out of a mixture and report the frequency

of the defendant = s DNA profile rather than calculating the combined

frequency of all possible donors to the mixed DNA profile obtained from the

evidence. @ Based upon a

study conducted in Connecticut, Dr. Johnson further explained that mixed

samples were especially difficult to interpret and that A often an analyst will > see = a particular individual = s profile in a mixture by comparing it to a

defendant = s or victim = s profile and perform a biased analysis. This type of biased analysis does not

consider that the evidence profile in a mixed sample could be the result of the

profiles of individuals other than the defendant and the victim. @ Dr. Johnson

stated that this information was a subject that should have been brought out in

cross-examination. Dr. Johnson also

criticized defense counsel for failing to cross-examine the witnesses regarding

the NRC recommendation or the practice of many laboratories to provide for

repeat testing.

Dr. Johnson

concluded that the expert testimony from Childs-Henry and Chu was A some of the most poorly presented and cross-examined

testimony that I have ever reviewed. @ She found

that Greenlee = s A lack of knowledge . . . in the area of serology and

DNA typing is apparent through his extremely cursory and superficial cross

examination. @

The State

submitted an affidavit from Greenlee.

After Greenlee became aware that there was no DNA left to test, and

after consulting with other attorneys, he decided A that the only purpose that an expert would serve

would be to review the procedures and methodologies used in the analysis by the

State = s experts. @ Greenlee

believed that he A could effectively argue the unfairness of no sample

being available to the defense to analyze @ without the help of an expert. He further believed that, A if there were some issues with regard to methodologies

and procedures, @ he A could get more mileage out of this on

cross-examination. @ He also

feared A the distinct possibility that our expert would

confirm the propriety of the State = s methodologies and procedures during the laboratory

testing, thereby reinforcing the validity of the DNA results. @ Greenlee

believed that he had effectively cross-examined the witnesses involved in the

DNA collection and testing.

With

respect to the testimony of the parole officers, Greenlee said that applicant

believed that they would testify that there was not a valid parole warrant in

effect at the time of his arrest.

Greenlee had counseled against calling the parole officers, but

applicant had insisted that they be called.

Greenlee further stated that he did not spend much time on applicant = s time of arrival at home on February 11 th

because A it would not eliminate [applicant] as being capable

of committing the offenses alleged. @ This was so

because applicant was A in an area not too far from the kidnapping @ that day and because intervening circumstances that

took place prior to the police being called would have given applicant A more than enough time to travel from the kidnapping

scene to his residence. @ Defense

counsel believed that the weakest areas of the State = s case were the DNA testing procedures and the

victim = s inability to identify applicant in the

courtroom. Greenlee believed that, if

jury were inclined to find guilt despite those weaknesses in the State = s case, then they were not going to find the time of

applicant = s arrival at home to be significant.

Greenlee

also stated that applicant was very demanding and uncooperative, and he

repeatedly failed to take Greenlee = s advice.

Finally, Greenlee pointed out that he used an investigator, filed many

motions on applicant = s behalf, reviewed reports, and spoke to witnesses.

2.

Appeal

The trial

court denied the motion for new trial, and applicant appealed. The sole issues on appeal were claims of

ineffective assistance of counsel.

Applicant claimed that Greenlee was ineffective because: (1) he did not

elicit testimony from applicant = s parole officers regarding the fact that the electronic

monitoring system had indicated that applicant had returned home at 3:07 p.m.,

(2) he elicited damaging testimony from his parole officers regarding his prior

convictions and details of his previous level of surveillance while on parole,

and (3) trial counsel = s performance was deficient with respect to the DNA

evidence.

The court

of appeals affirmed. [20] With respect to the electronic monitoring

allegation, the court responded that applicant was not prejudiced because the

State elicited the 3:07 p.m.-arrival information during its cross-examination

of applicant. [21] The court of appeals also found that

applicant = s 3:07 p.m. arrival time did not necessarily exclude

him from being the kidnapper. [22] Regarding the allegation about the testimony

of the parole officers, the court of appeals found that applicant had insisted

on calling these witnesses after being warned of the potential dangers and that

defense counsel was not unreasonable in addressing, on direct examination,

unfavorable facts that A most likely would have been addressed by the

prosecutors on cross-examination. @ [23] Finally,

with respect to the allegations regarding DNA evidence, the court of appeals

concluded that Dr. Johnson = s affidavit did A not

allege any actual errors in Childs-Henry = s or Chu = s work which trial counsel failed to discover or

develop. @ [24] The

appellate court also pointed to defense counsel = s

cross-examination of police officers regarding how the facial swabs were

handled prior to the HPD Crime Lab = s receipt of the evidence and to defense counsel = s emphasis on the fact that no sample remained for

applicant to test independently. [25]

A petition

for discretionary review was subsequently filed and refused.

3.

Additional Testing

In November

of 2002, adverse publicity began to arise about the condition and practices of

the HPD Crime Lab. [26] Within a month, the acting Chief of Police

commissioned an outside review of the lab = s DNA/Serology section. [27] Based upon a preliminary oral report of the

auditors, HPD suspended the performance of all DNA analysis at the Crime Lab. [28] In 2003, HPD and the Harris County District

Attorney = s Office began identifying cases in which some form

of DNA analysis had been performed by the lab. [29] A This process evolved into a long‑term re‑testing

project coordinated among HPD, the District Attorney = s Office, and outside DNA laboratories. @ [30]

One of the

cases identified in this process was applicant = s. The seemingly empty tubes that had contained

DNA from the face swabs were forwarded by the HPD Crime Lab to ReliaGene

Technologies. The lab also forwarded

what purported to be reference samples from E.T. and applicant. ReliaGene used a buffer solution to

re-suspend any DNA residue that might be left in the tubes, and it tested the

DNA at fourteen genetic loci, including the original ten loci tested by

Chu. Of the four tubes of DNA from the

face swabs, only one tube C containing the epithelial fraction from one of the

face swabs C produced any results.

In May of

2004, ReliaGene reported that the major component of the DNA was not consistent

with E.T. or applicant, while the minor component contained two weak alleles

that were consistent with applicant.

These two weak alleles were found in the additional loci not tested by

Chu. After these results, it was

determined that the tube purporting to contain E.T. = s reference sample was not the correct tube. On June 30, 2004, after a new reference

sample was procured from E.T. and analyzed, ReliaGene concluded that the major

component of the face-swab DNA was indeed consistent with E.T. = s DNA. The

conclusion with respect to the two weak alleles matching applicant was

unchanged. No other DNA alleles foreign

to E.T. were detected in the sample.

In an

affidavit later obtained in habeas corpus proceedings, Gina Pineda, Assistant

Director at ReliaGene, explained that she did not believe that the DNA extracts

received by ReliaGene were quantitatively the same as those tested by the HPD

Crime Lab. Consequently, she would

expect ReliaGene to detect fewer alleles in its analysis, but for the results

to remain consistent with what the HPD Crime Lab had found. Her examination of the data indicated that,

indeed, the results obtained by the two testing laboratories were A not discrepant. @ She also

expected that, if a third round of testing were performed, there would be a

further progressive loss of alleles.

Some of the victim = s alleles might also become lost and A some allele drop-in may also be observed. @

In an

August 2004 newspaper article, assistant district attorney Marie Munier was

quoted as saying about the ReliaGene results, A You

can = t even do a statistical analysis (on the probability

that the DNA was Napper = s). I don = t know what it would be, but it wouldn = t be very much. @ [31]

In 2005,

during the instant habeas proceedings, the parties agreed to more testing, by

Orchid Cellmark. They acknowledged in

writing that the testing was expected to consume all of the evidence and agreed

to waive the opportunity to have a representative observe or participate in the

testing.

In June of

2005, Orchid Cellmark reported that it was able to obtain results for the

face-swab tubes containing the epithelial fractions of DNA but was unable to

obtain results for the tubes containing the sperm fractions. The samples were analyzed at sixteen

different loci, including the ten loci tested by Chu and the four additional

loci tested by ReliaGene. The samples

for both epithelial-fraction tubes were mixtures.

For one of

the epithelial samples, Orchid Cellmark determined that the major profile

matched the victim, and the suspect could not be excluded as a possible donor

of the minor alleles in the mixture.

Four alleles foreign to the victim were found (across four different

loci), all of which matched applicant = s DNA profile.

One of these alleles was found at a locus that had been tested by both

HPD and ReliaGene but had not previously been found there. One of the alleles was confirmed at one of

the new loci that had been tested by ReliaGene.

The other two alleles were found at new loci tested only by Orchid

Cellmark.

Orchid

Cellmark determined that the other epithelial sample was a mixture of DNA from

the victim and an unknown individual.

Five alleles foreign to both the victim and applicant were found, and

two loci yielded inconclusive results.

In subsequent testing, Orchid Cellmark was able to exclude as possible

contributors to the foreign alleles A.G. Riddle, C. West, J. Chu, J.W. Belk,

L.R. Verbitskey, M. Childs-Henry, and R. Hilleman.

Orchid

Cellmark provided statistical frequency calculations for the epithelial sample

that contained the four alleles that matched applicant = s DNA profile.

According to Orchid Cellmark, the approximate frequencies for unrelated

individuals for all possible types included in the mixture, making no

assumptions regarding the number of DNA sources, are 1 in 255 for

African-Americans, 1 in 3,427 for Caucasians, and 1 in 585 for Hispanics.

4.

Bromwich Report

As a result

of problems discovered with the HPD Crime Lab, a team headed by Michael R.

Bromwich was chosen to further investigate and evaluate the Crime Lab = s practices, both past and present. The report, published on June 13, 2007,

contained numerous scathing criticisms of the Crime Lab = s serology/DNA section. A On the whole, @ the serology/DNA section = s A work did not meet the generally accepted forensic

science principles that existed at the time and posed major risks of

contributing to miscarriages of justice in extremely significant cases. @ [32]

Bromwich

attributed this failure to budgetary problems, incompetent leadership, and lack

of training for the DNA analysts. A [U]ntil the public crisis engulfed the Crime Lab, it

was never provided adequate financial support to hire and train the number of

criminalists necessary to handle the Lab = s ever-increasing workload. @ [33] The DNA

section was in A shambles C plagued by a leaky roof, operating for years without

a line supervisor, overseen by a technical leader who had no personal experience

performing DNA analysis and who lacked the qualifications required under the

applicable Federal Bureau of Investigation ( > FBI = ) standards, [and] staffed by underpaid and undertrained

analysts. @ [34] Training was

one of the first areas in which funding was cut when the HPD Crime Lab = s budget became tight. [35] The lab was populated by civilian, as opposed

to law enforcement, employees, and as such, was marginalized within HPD. [36] Until the 2002 audit, the HPD Crime Lab did

not submit to reviews by outside agencies and never sought to achieve

accreditation. [37] As a result, HPD = s analysts became isolated from the rest of the

forensic science community. [38] Although the person with supervisory control

over the DNA section certified that internal audits conforming to FBI quality

assurance standards found that those standards were met, the outside audit

found to the contrary. [39]

Bromwich

characterized the HPD DNA analysts as A woefully undertrained. @ [40] A The problems we observed in the historical DNA

cases, @ he further explained, A are not attributable to individual rogue analysts

who departed from the Crime Lab = s approved practices. On the contrary, the widespread and serious

deficiencies in the historical Crime Lab were consistent with the Crime Lab = s accepted and understood practices. @ [41]

Consequently, A [f]lawed practices and embedded misunderstandings .

. . became accepted by analysts within the DNA/Serology Section as the correct

way of doing things. These

misunderstandings infected the work of the Section = s analysts from the analysis through the trial

testimony. @ [42] Bromwich

found A the same types of major issues across all the Crime

Lab = s DNA work, regardless of the analyst or the DNA

typing system used. @ [43]

One of the

cases that Bromwich reviewed was applicant = s. Bromwich

criticized Childs-Henry for failing to properly document the procedures she

used and for failing to use some of the more definitive procedures for

detecting and confirming the presence of semen. [44] With respect to Chu = s testing, Bromwich found that the A original DNA testing appears to have generated good

quality and clear results from potentially very difficult forensic evidence

samples. @ [45] The A overall assessment @ of

Chu = s testing was that A he

developed clean, interpretable profiles from the four evidence samples he

tested. @ [46]

But,

according to Bromwich, applicant = s case A illustrates two significant problems with the Lab = s historical DNA work. First, the Crime Lab analysts utilized all of

the readily testable sample in this case, @ and second, Chu used an inappropriate statistical

analysis of the random match probability. [47] Regarding the first problem, Bromwich found

that A it was unnecessary and inappropriate for Mr. Chu to

have tested the extracts from both swabs, thereby consuming the available

sample in this case. @ [48] Although Chu

stated in an affidavit in the instant habeas proceedings that he did not A consume all of the extract in this case out of

carelessness or out of a desire to prevent additional testing, @ Bromwich concluded that A there was no need, and it was a mistake, for him to

consume both of the redundant > face-cheek = swabs. @ [49] Doing so was

A the product of very poor laboratory practice. @ [50] This A misstep @ was compounded by the fact that Childs-Henry had A discarded the tubes containing the raw evidence (the

swabs) after she performed the DNA extractions. @ [51] And while A outside laboratories have been able to obtain some

results @ C A mixed results @ C from testing the unseen residue in the tubes, those

results A do not approach the strength @ of A Chu = s original results. @ [52] Notably, the

Bromwich Report observed, A Neither laboratory has been able to confirm the

alleles consistent with Mr. Napper = s DNA profile that Mr. Chu detected in the sperm

fractions of each of the swabs, which captured most of the consistency between

evidence profiles and Mr. Napper = s DNA profiles. @ [53]

Turning to

Chu = s statistical analysis, Bromwich initially

criticized statements made by Chu in a March 30, 2001 report. [54] There, Chu characterized the DNA material as

a A mixture @ consistent with the victim and with applicant. [55] Chu went on to state, A Given the population on the face of the earth and

eliminating the probability of identical twins, the DNA profile statistically

matches only Lawrence Napper. @ [56] Bromwich

criticized these statements as A contradictory @ and called Chu = s statistical statement A incorrect and misleading. @ [57]

Further,

Bromwich = s examination of Chu = s file

revealed that Chu had based his statistical calculation of the random match

probability upon applicant = s known profile, A which

was the usual C and extremely flawed C practice

in the Crime Lab. @ [58] In another

portion of his report, Bromwich explained that, while calculating the random

match probability of a single DNA profile was A relatively

simple and straightforward @ and can A provide the most discriminating information about

whether a particular individual could be the source of the biological evidence, @ the same could not be said of a mixed sample

containing DNA from more than one person. [59] When a DNA profile contains DNA from more

than one person, A it is much more difficult to provide compelling

statistical evidence that a particular person = s DNA

was found in an evidence sample. @ [60] Random match

probabilities related to a mixture A may result in frequency estimates that indicate that

a relatively large proportion of the human population could have contributed to

the biological evidence. @ [61] A frequency

estimate based upon a suspect = s known reference sample A is completely irrelevant to the strength of the DNA

evidence when the DNA profile is a mixture. @ [62]

Nevertheless, despite the inappropriateness of calculating a random

match probability using a defendant = s known profile, A the

Crime Lab virtually always calculated its reported frequency estimates @ in this fashion. [63]

When

setting out an allelic table, Bromwich bolded the alleles that were unique to

applicant = s profile (matching applicant but foreign to the

victim), [64]

indicating that it was those unique alleles from which a random match

probability must be calculated. Based on

Chu = s STR data, Bromwich calculated the accurate random

match probability as A 1 in 232,000 in the African American population, 1

in 1,920,000 in the Caucasian population, and 1 in 7,430,000 in the Hispanic

population. @ [65] He

characterized these statistics as A relatively strong results given the nature of the

sample in this case, @ but A a far cry from the sole source, unique match that

Mr. Chu reported. @ [66]

5.

Habeas

Wicoff

filed a habeas application on applicant = s behalf. In

addition to the evidence above, the habeas court obtained affidavits from

Glaeser, Greenlee, Childs-Henry, Chu, and Johnson. Applicant submitted affidavits from two

attorneys B Cunningham and Downey. The court conducted an evidentiary hearing,

at which Greenlee testified. And the

habeas court received various pieces of documentary evidence.

The facts

conveyed by Glaeser = s affidavit have already been discussed.

In his

affidavit, Greenlee stated that applicant = s response to the criminal charges A was an adamant denial of the charge. @ Before

trial, Greenlee believed there would be three main pieces of evidence at trial:

DNA evidence, evidence relating to the bottle of orange lotion, and evidence

relating to applicant = s electronic monitoring. Greenlee believed he had effectively shown on

cross-examination that there was not a clear set of procedures, methodologies,

and practices regarding how the DNA material was analyzed.

In her

affidavit, Childs-Henry stated that she A did not observe the vials of extract after they were

transferred to Chu @ and had A no way of knowing what amount of liquid, if any,

actually remained in the vials once Chu had completed his analysis. @ Realizing

that this statement conflicted with her trial testimony, Childs-Henry explained

that she had trained under the RFLP variant of DNA analysis and was unfamiliar

with the STR procedure at the time of trial.

She had just assumed there would be sample left based on her RFLP

training because there was generally sample left after RFLP testing. After reviewing her trial testimony,

Childs-Henry stated that she realized that the defense attorney was asking

whether she knew for a fact that liquid DNA extract still existed and that, in

reading over her answers, she could only assume that, while she was being

cross-examined by defense counsel, she A did not understand the intent behind his

questioning. @ She further

stated that it was not her intent to be misleading or untruthful but that her

statement that there was DNA sample left was A unintentionally

incorrect. @

Chu = s affidavit contained his statement, recounted

above, that his consumption of all of the DNA material was not from

carelessness or a desire to prevent additional testing. He said he did not expect to be able to

develop a profile from the sample because the concentration of DNA was so

low. He also stated that in such cases,

it is not uncommon to consume all of the liquid extract in testing. He also said that, when asked whether there

was any DNA left to test, he interpreted the question, under A the common language and words of art used in our

lab, @ to mean whether there was any liquid extract

remaining C not whether it was possible to obtain DNA test

results from residue that might have been left in the tubes. His statement to Glaeser and his subsequent

testimony at trial accorded with that understanding and was not an attempt to

hide or withhold anything from the defense.

Dr. Johnson = s affidavit responded to the DNA test results from

ReliaGene. She believed that the two

alleles that matched applicant = s DNA had to be analyzed separately for the purpose

of establishing a random match probability.

One of the alleles was present in 14.5 percent of African-Americans,

16.5 percent of Caucasians, and 10.29 percent of Hispanics. The other allele was present in 30 percent of

African-Americans, 32.5 percent of Caucasians, and 39.23 percent of

Hispanics. She also expressed dismay at

HPD = s initial error in forwarding an incorrect reference

sample to ReliaGene. A This type of serious error is typical of the work

performed at the HPD lab based on my review of many cases, @ she said, A and it calls into question the validity and

reliability of re-testing any DNA that was originally extracted by the HPD lab. @ She stated

that it was A highly likely given the sloppy work performed by

HPD, that even if the foreign alleles detected in the face swab extract

originated from Mr. Napper = s DNA, that it could be a result of contamination

within the HPD lab. @

Dr. Johnson

also criticized the statistical frequency estimate offered by Chu at trial

(that the DNA from the swabs statistically matched applicant = s profile).

She contended that the estimate was A completely

unsupported scientifically @ and was A patently false. @ She further

stated that a A mixture of DNA cannot possibly statistically match

only one person @ and A attempts to discern the individual profiles in a

mixture of DNA is very difficult. @

In his

affidavit, Cunningham opined that Greenlee = s cross-examination of Chu was A inadequate @ and A demonstrated the dangers of trying to question an

expert if you have no training in his area of expertise. @ Cunningham

faulted Greenlee for failing to hire a consulting expert. Cunningham believed that a consulting expert

was necessary to help defense counsel understand the subject better, to shed

light on the statistical calculation made by Chu, and to enable defense counsel

to know what to request during discovery C e.g., bench notes, worksheets, and other documents

used by the State = s expert during testing. Cunningham also believed that a consulting

expert would have reached the same conclusion as Bromwich regarding the

inappropriateness of consuming all of the evidence. In addition, Cunningham opined that a

testifying expert A can always make more headway @ with regard to criticizing another expert = s testimony than counsel can through

cross-examination. Cunningham also

stated that, when Childs-Henry testified at trial that some DNA sample still

existed, defense counsel should have moved for a continuance to have testing

done by his own expert. Cunningham also

said that the HPD Crime Lab should have notified the prosecutor = s office before conducting testing that testing

would consume all of the evidence. This

would allow the prosecutor = s office to alert the defense, who could have had an

expert present at testing, or have the samples separated for independent

testing. When faced with the HPD Crime

Lab = s failure to have done so, Cunningham would have

filed a motion to suppress the DNA results.

Downey = s affidavit stated that DNA A is an extremely difficult area of science to simply

self-teach. @ He believed

that an attorney with no prior experience with DNA analysis acts deficiently by

failing to enlist the help of a consulting expert. He stated that a consulting expert could have

helped defense counsel understand the proper standards of testing and provide

valuable impeachment if the State = s expert did not take the proper measures. He made the same points as Cunningham

regarding the usefulness of a consulting expert with respect to the State

expert = s statistical analysis and with respect to

discovery, and he also believed that Greenlee should have moved for a

continuance after Childs-Henry = s testimony.

Like Cunningham, he believed that the HPD Crime Lab should have notified

the prosecutor = s office before conducting the testing and that

reasonably competent counsel would have moved to suppress the DNA results.

At the

evidentiary hearing, Greenlee testified that the State had a compelling case

without the DNA evidence. Greenlee saw

three A linkages @ between applicant and the crime: (1) DNA, (2) E.T. = s description of applicant = s house, A which was on point, @ and

(3) the A unique orange lotion @ found

in the house. Nevertheless, Napper = s defense was that he did not do it.

When asked

about his prior experience, Greenlee acknowledged that he had no degree in the

field of forensic training and that, before applicant = s trial, he had never taken any continuing legal

education classes on DNA, had never presented a DNA expert as a witness, and

had never cross-examined a DNA expert. When asked whether he had ever used a

consulting expert, Greenlee said, A Well, I don = t differentiate between consulting and using them as

an expert witness. If I = m going to call somebody as an expert witness, I = m going to consult them. . . . From a semantic

standpoint, it seems to me they = re the same kind of person. @ When asked, A [I]f the State were relying on the testimony of an

expert in an area that you were totally unfamiliar with, might you call someone

to educate yourself through that expert so that you could more effectively

handle the State = s case yourself, @

Greenlee responded, A Not necessarily, because I can read. @ After Greenlee had discussed securing literature on

fingerprint analysis as an example of self-teaching, Wicoff asked if DNA was more complex than

fingerprints. Greenlee answered, A I = m not equipped to make that distinction. @ When asked if he thought he could obtain A lab notes or worksheets or electronic data from DNA

testing @ through discovery, defense counsel replied that he

believed that worksheets and lab notes would be protected by the work-product

privilege, but electronic data should be available. When asked if he received an

electropherogram, defense counsel said, A No, @ but he A saw a breakout of all of the alleles. @ When asked

if he saw an allelic table, defense counsel said, A I believe I did, @ but

then stated, A it = s been eight years, @ when

Wicoff pointed out that A HPD doesn = t do allelic tables. @

Greenlee

also stated that he did not think he needed prior training with respect to

reading the DNA information because it was A relatively

straightforward. @ When asked

whether a testifying expert would have enhanced his strategy of emphasizing the

unfairness of not having DNA available for testing by the defense, Greenlee

said, A Not necessarily, @

because the expert testimony might have been unfavorable, and he did not have

the benefit of hindsight. A Because, @ Wicoff asked, A you never checked with a consulting expert? @ Greenlee

said that he A didn = t feel the need to. @

When asked why

he did not obtain testing after Childs-Henry testified that some DNA sample

remained, Greenlee said that they later learned that Childs-Henry A was simply mistaken. @ When asked what he understood by the

statement that no material was left for analysis, Greenlee replied, A That whatever material was taken from the little boy

. . . there was nothing left for me to conduct an independent analysis on. @

Greenlee

also testified that he thought the defense was helped by Childs-Henry = s testimony that a A sloppy

chemist @ would consume the entire sample. And he testified that the defense was

seriously hurt by applicant = s own testimony, that the damage caused by that

outweighed the DNA evidence and was the A deciding factor @ in the case.

The habeas

record also contains documents from the FBI and the National Research Council

(NRC) regarding standards for DNA testing.

In the FBI document, Standard 7.2 states: A Where

possible, the laboratory should retain or return a portion of the evidence

sample or extract. @ [67] The NRC = s Recommendation 3.3 states:

Whenever feasible, forensic

samples should be divided into two or more parts at the earliest practicable

stage and the unused parts retained to permit additional tests. The used and saved portions should be stored

and handled separately. Any additional

tests should be performed independently of the first by personnel not involved

in the first test and preferably in a different laboratory. [68]

In the

commentary, the NRC states, A We recognize that no amount of care and proficiency

testing can eliminate the possibility of error.

However, duplicate tests, performed as independently as possible, can

reduce the risk of error enormously. The

best protection that an innocent suspect has against an error that could lead

to a false conviction is the opportunity for an independent retest. @ [69]

II.

ANALYSIS

In habeas corpus proceedings, this Court is the ultimate factfinder,

but we usually defer to the habeas court = s fact findings if they are supported by the record. [70] With this standard of review in mind, we turn

to the three claims upon which we filed and set this application.

A.

Youngblood Claim

1. The Parties = Arguments and the Habeas Court = s Findings

Applicant contends that Chu and Childs-Henry A intentionally, recklessly, and in bad faith consumed

and destroyed available evidence. @ He notes the

Bromwich Report = s criticism of Chu for effectively consuming the

entire sample and of Childs-Henry for discarding the original swabs.

The habeas court recommends that relief be granted on this ground under

Arizona v. Youngblood [71]

and Illinois v. Fisher . [72] Under those cases, the court concludes that a

defendant is entitled to relief if it is shown that State acted in bad faith in

destroying potentially useful evidence.

The habeas court concludes that the DNA material in this case

constituted A potentially useful evidence @ because the DNA test results might have exonerated

applicant. Citing Professors Dix and

Dawson, the court says that showing bad faith requires establishing that A law enforcement officials were actually aware their

action or inaction would result in the loss of what they recognized would be

evidence. @ [73] Under this

standard, the court concludes that the lab workers acted in bad faith. In

support of its conclusion, the habeas court cites three items. First, it contends that Article 38.39 of the

Texas Code of Criminal Procedure (requiring the preservation of evidence

containing biological material) had already been enacted and was to take effect

on April 5, 2001. The court further

states that A it does not make sense, nor does this Court find it

to be credible, that employees of the Houston Police Department Crime Lab would

have been unaware of the statute which was about to take effect, or that they

would not have fully realized that the evidence that they were testing

precisely fit what the statute so obviously sought to preserve. @ Second, the

court points to FBI and NRC standards that call for retaining a portion of DNA

evidence for re-testing, if possible.

Finally, the court states that it was the A customary

practice in the criminal district courts of Harris County . . . that where

there is danger of evidence being consumed in testing . . . for a forensic lab

to alert the prosecutor, who may then alert both the defense counsel and the

trial court . . . and obtain an acknowledgment signed by all parties that

consumption of the evidence may occur. @ As an

example, the court cites A Appendix 4 @ as showing how this practice was followed by the

Orchid Cellmark Lab during the instant habeas proceedings. [74]

We asked the parties to submit briefs concerning whether the DNA

samples that were destroyed constituted A potentially useful evidence @ under Youngblood . Relying upon Fisher , applicant

contends that the Supreme Court = s definition of A potentially

useful evidence @ is broad, applying even if the potential for

exculpatory results is low. [75] Applicant also argues that further testing

has provided results that are actually exculpatory, showing that the link

between applicant and the DNA material is A almost non-existent. @ He supports this argument with the following

claims: (1) that assistant district attorney Munier concluded that the

statistical link to applicant in this case A wouldn = t be very much, @ (2) that ReliaGene = s

report observed that only two out of fourteen loci revealed a link to applicant

and the two matches were A weakly detected, @ (3)

that Orchid Cellmark concluded that the DNA profile obtained from A the epithelial fraction of the tubes of DNA extract @ was a mixture of DNA from the victim and an unknown

individual, and (4) that Orchid Cellmark = s statistical analysis was that 1 in 255 individuals

could be the source of the DNA profile developed from the epithelial

fraction. Applicant asks, A [I]f accurate testing was not possible at ReliaGene

due to the diminished state of the DNA extract, then how were they able to obtain

a full DNA profile from such evidence? @ Applicant

contends that the State cannot dismiss the re-testing as unreliable with

respect to applicant when it produced a full genetic profile for the victim.

The State contends that the DNA samples were not potentially useful

because subsequent testing results (by both ReliaGene and Orchid Cellmark)

include applicant as a possible donor of the genetic material. The State claims that the difference between

Chu = s results and the results obtained in re-testing

involved the number of alleles detected and could be readily explained by the

quantitative difference in the samples compared. Consequently, the State contends, the evidence

consumed by the HPD Crime Lab was not potentially useful because further

testing of the remnants of that evidence continues to affirm applicant = s guilt.

Some of the habeas court = s findings may be relevant to whether the DNA

samples were potentially useful. In

finding 37, the court recites Orchid Cellmark = s

conclusion that applicant A cannot be excluded as a possible donor of the minor

alleles in the mixture, @ as A meaning that, as with ReliaGene = s testing, there was only a weak link to Napper in

the epithelial fraction of one of the face/cheek swabs. @ In finding

38, the habeas court recites Orchid Cellmark = s

conclusion that the A DNA profile obtained from the epithelial fraction of

the tubes of DNA extract . . . is a mixture, including the victim and an

unknown individual @ as meaning that A the

link to Napper was so weak that the other contributor to the epithelial

fraction was labeled > an unknown individual. = @

2.

Preservation of Error

Ordinarily, a defendant is barred from raising a claim on habeas corpus

if he could have raised the claim at trial and on direct appeal, but did not. [76] Although applicant was aware that the DNA

material had been consumed during testing, he raised no Youngblood complaint

at trial or on direct appeal. Trial

counsel Greenlee did not know that consuming the entire DNA sample was

improper, but that fact could have been discovered at the time of trial. However, some facts that are potentially

relevant to the claim arose after trial: public discovery of the

extensive problems with the HPD Crime Lab and the subsequent DNA testing

conducted by ReliaGene and Orchid Cellmark.

In his habeas application, applicant also claims that Greenlee = s failure to move for suppression of the DNA test

results on the basis of HPD = s consumption of the DNA sample constituted

ineffective assistance of counsel. Under

these circumstances, we find it appropriate to address the merits of applicant = s Youngblood claim without first addressing

the question of procedural default.

3.

The Law

a.

Supreme Court Cases

In Youngblood , the defendant complained about the State of

Arizona = s failure to preserve semen samples from the victim = s body and clothing. [77] Noting that the State = s good or bad faith is irrelevant when the State

fails to disclose exculpatory evidence, the Supreme Court nevertheless held

that a different standard applies A when we deal with the failure of the State to

preserve evidentiary material of which no more can be said than that it could

have been subjected to tests, the results of which might have exonerated the

defendant. @ [78] Quoting California

v. Trombetta , [79]

the Supreme Court concluded that different treatment was justified in part

because A [w]henever potentially exculpatory evidence is

permanently lost, courts face the treacherous task of divining the import of

materials whose contents are unknown and, very often, disputed. @ [80]

Consequently, when the destruction of potentially useful evidence is at

issue, the defendant must show A bad faith @ on the part of the State in destroying the evidence

in order to show a violation of due process. [81] This rule confines the police = s obligation to preserve evidence A to that class of cases where the interests of

justice most clearly require it, i.e. , those cases in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating the defendant. @ [82] Turning to

the facts of the case, the Supreme Court explained that the A failure of the police to refrigerate the clothing

and to perform tests on the semen samples can at worst be described as

negligent. @ [83] Because

there was no suggestion of bad faith on the part of the police, there was no

violation of due process. [84]

The Supreme Court noted two distinctions between the case before it and

Trombetta : A In the present case, the likelihood that the

preserved materials would have enabled the defendant to exonerate himself

appears to be greater than it was in Trombetta , but here, unlike in Trombetta ,

the State did not attempt to make any use of the materials in its own case in

chief. @ [85] In a

footnote to that sentence, the Supreme Court extensively discussed the

requirements of Trombetta and then stated: A The presence or absence of bad faith by the police

for purposes of the Due Process Clause must necessarily turn on the police = s knowledge of the exculpatory value of the evidence

at the time it was lost or destroyed. @ [86]

In Trombetta , the defendant complained about the failure to

preserve breath samples for re-testing by the defense after the samples were

obtained by a breathalyzer machine and produced inculpatory results. [87] The Supreme Court rejected the defendant = s claim for three reasons. First, the authorities did not destroy the

breath samples A in a calculated effort to circumvent the disclosure

requirements established by Brady v. Maryland [88]

and its progeny @ but acted A in good faith and in accord with the normal

practice. @ [89] The Court

observed that the record contained no allegation A of

official animus towards the respondents or a conscious effort to suppress

exculpatory evidence. @ [90] Second, the

evidence did not have exculpatory value that was apparent before it was

destroyed. [91] A Although preservation of breath samples might

conceivably have contributed to respondents =

defenses, a dispassionate review of the Intoxilyzer and the California testing

procedures can only lead one to conclude that the chances are extremely low

that preserved samples would have been exculpatory. @ [92] Third, the

evidence was not of A such a nature that the defendant would have been

unable to obtain comparable evidence by other reasonably available means. @ [93] There were a

limited number of ways in which the machine could malfunction C faulty calibration, extraneous interference with

machine measurements, and operator error C and the defendants could raise these issues on

cross-examination after examining the machine and the weekly calibration

results. [94]

After Youngblood , the Supreme Court decided Fisher , which

involved a complaint about the destruction of a substance alleged to be

cocaine. [95] Four tests by a police crime lab confirmed

that the substance was cocaine. [96] The Court held that the substance A was plainly the sort of > potentially useful evidence = referred to in Youngblood , not the material

exculpatory evidence addressed in Brady @

because A [a]t most, respondent could hope that, had the

evidence been preserved, a fifth test conducted on the substance would

have exonerated him. @ [97] The

defendant did not show bad faith because A police testing indicated that the chemical makeup of

the substance inculpated, not exculpated, respondent @ and A it is undisputed that police acted in > good faith and in accord with their normal practice. = @ [98] Reversing an

Illinois appellate court, the Supreme Court held that the existence of a

pending discovery request does not eliminate the necessity of showing bad

faith. [99]

b.

A Potentially Useful Evidence @

Applicant = s reliance on Fisher for the proposition that

the term A potentially useful evidence @ is broad is somewhat misplaced. None of the Supreme Court = s cases, including Fisher , purport to provide

a stand-alone definition of the term A potentially useful evidence. @ Rather, the

Court = s cases appear to contrast evidence that is at

best A potentially useful @ with A material, exculpatory @

evidence under Brady . When

evidence is at best A potentially useful, @ then

the defendant must at least show A bad faith. @ That does

not really answer the question of when the potential exculpatory value of

evidence is so attenuated that even a showing of bad faith will not afford a

basis for relief.

Professors Dix and Dawson suggest that the A possibility @ of exculpation is not enough C that the defendant A must

apparently show at least a substantial or considerable likelihood the evidence,

if preserved, would have tended to show his innocence. @ [100] A few

isolated cases from other jurisdictions have held that evidence is not even

potentially useful when the potential exculpatory value of the evidence is A mere speculation, @ [101] when the allegedly exculpatory fact was legally

irrelevant to the crime charged, [102]

when the allegedly exculpatory fact would not really provide an exculpatory

inference, [103]

when the exculpatory relevance of the evidence was not shown, [104]

when the chance that the evidence would exonerate the defendant was A virtually nil, @ [105] or when other evidence conclusively established

that testing would not yield an exculpatory result. [106]

c.

A Bad Faith @

More effort has been expended trying to determine the meaning of A bad faith. @ As Dix and

Dawson acknowledge, A Precisely what constitutes > bad faith = is not clear. @ [107] The

suggestion by the habeas court in this case that the test for bad faith is

whether the officials A were actually aware their action . . . would result

in the loss of . . . evidence @ miscomprehends Professors Dix and Dawson = s thoughtful discussion. Dix and Dawson state that a defendant A must apparently prove at least that law enforcement

officials were actually aware their action or inaction would result in the loss

of what they recognized would be evidence. @ [108] They do not

say that such awareness is necessarily enough.

If awareness that evidence would be destroyed were enough, by itself, to

constitute bad faith, then officials could never conduct a test that would

consume all of the evidence, even if doing so were necessary to achieve

probative results. Dix and Dawson

suggest that Trombetta articulates at least two situations in which bad

faith would be shown: when the prosecution acts with A official animus @ toward the defendants or acts with A a conscious effort to suppress exculpatory evidence. @ [109]

A review of federal circuit courts and state courts of last resort in

other jurisdictions reveals that they

generally require a showing along those two lines. Some courts have expressly adopted the Trombetta

formulation as the definitive test of bad faith. [110] Other courts have focused on one or both of

the Trombetta situations, characterizing bad faith as involving improper

motivation or malice, [111]

or defining bad faith as an intent to deprive the defendant of access to

(exculpatory or potentially exculpatory) evidence. [112] Various jurisdictions have also indicated

that bad faith is not established by a mere showing that the government agent was

grossly negligent, [113]

engaged in intentional conduct, [114]

did not follow proper procedures, [115]

exercised poor judgment, [116]

or performed sloppy work. [117] Bad faith was held to be absent when

government agents did not suspect that the evidence they destroyed was or might

have been exculpatory, [118]

when destruction of the evidence was due to lack of training [119]

or ignorance of a recently passed law, [120]

when the government agent believed his tactics were lawful, [121]

or when the evidence was destroyed before the government agent was notified

that it might have exculpatory value, before the defendant was a suspect, or

before the defendant expressed a desire to have the evidence preserved. [122] Knowing the evidence is obviously relevant

to, or even determinative of, guilt or innocence has been held to be

insufficient to show bad faith. [123] The government = s

ability to preserve the evidence has also been held not to be dispositive. [124]

But courts have found bad faith where government agents hid or concealed

the evidence until it was destroyed, [125]

destroyed the evidence after being expressly notified by the defense of its

potential exculpatory value, [126]

destroyed the evidence after a dismissal of the case (and then re-instituted

proceedings), [127]

or where government agents refused to show up in court for an inquiry into

their good or bad faith. [128] The Tenth Circuit has formulated a

five-factor test that considers whether: (1) the government received explicit

notice of the evidence = s potentially exculpatory nature, (2) the claim was

backed up with objective, independent evidence rather than being conclusory,

(3) the evidence was in the government = s control at the time of notice, (4) the evidence

was central to the case, and (5) there is any innocent explanation for the

evidence = s destruction. [129]

Several courts have explained Youngblood = s A bad faith @ requirement as substituting for Brady = s requirement that evidence be exculpatory. [130] Essentially, an inference that the

evidence was probably exculpatory can be

drawn from a government agent = s bad faith conduct. [131]

4.

The Present Case

a.

Potential Usefulness of the Evidence

The habeas court and the parties have arrived at some erroneous

conclusions because they have treated the DNA evidence as a monolithic whole,

instead of considering each of the four DNA samples separately. The habeas court made this mistake when it

interpreted Orchid Cellmark = s reference to an A unknown

individual @ as an indication that the link between applicant

and the DNA evidence was weak. Although

ReliaGene was able to obtain results from only one of the epithelial samples,

Orchid Cellmark was able to obtain results from both epithelial samples. For both samples, Orchid Cellmark detected a

primary DNA profile that matched the victim.

One of the samples also contained some minor alleles matching applicant = s profile.

The other epithelial sample contained minor alleles that did not match

either the victim or applicant. These

alleles belonged to another individual (or individuals), whose identity was, of

course, A unknown. @ Subsequent

testing was done to attempt to rule in or rule out individuals who were

involved in DNA testing as a possible source of contamination. Notably, Orchid Cellmark was able to rule out

the persons from HPD who were originally involved in collecting and testing the

material: Verbitskey, Hilleman, Childs-Henry, and Chu did not contribute the A unknown person = s @ DNA.

Although an unknown person = s DNA was detected in one of the epithelial samples,

that fact does not have any tendency to exculpate applicant. Because the epithelial samples are composed of

cells that are easily shed, such as skin cells, the DNA in question did not

necessarily come from the perpetrator C it could have come from anyone who had recent

contact with the victim. It is also

possible that the extraneous alleles are the result of contamination, or the A allele drop-in @ (referred to by Pineda) that might occur as a

result of repeated testing. Had the sperm samples yielded an A unknown person = s @ DNA, that fact might have been significant, but

that is not what happened.

The same fallacy of treating the DNA results as a monolithic whole also

underlies the State = s and applicant = s competing positions regarding why the outside labs = test results differ from those obtained by

HPD. Although the State contends that

the difference in results is due to the quantitative decline of the sample,

applicant questions how that can be, when the outside labs were able to obtain

a complete profile matching the victim.

The answer to applicant = s question is simple once the samples are treated

separately: The epithelial samples have consistently matched the victim

throughout all of the testing but have never provided strong results with

respect to the perpetrator. Chu = s STR testing detected a single allele in one of the

epithelial samples that was A unique @ to applicant = s profile (i.e. not possessed by the victim). Chu = s testing of the other epithelial sample revealed no

unique alleles. The one unique allele that was detected was one of nine unique

alleles possessed by applicant that was subject to testing.

The outside labs actually detected a greater number of alleles unique

to applicant = s profile.

ReliaGene detected two of twelve tested-for unique alleles, while Orchid

Cellmark detected four of fourteen tested-for unique alleles. Although the habeas record does not contain a

statistical calculation for the random match probability of the single unique

epithelial allele detected by Chu, it seems likely that the four of fourteen

unique alleles detected by Orchid Cellmark yields a stronger link to applicant

than the one of nine unique alleles detected in HPD = s testing.

Even if that one unique allele detected by Chu somehow carried special

statistical significance that provided a stronger link to applicant than the

four unique alleles detected by Orchid Cellmark (and the two detected by

ReliaGene), that would not make the Orchid Cellmark (or ReliaGene) results

exculpatory. ReliaGene = s and Orchid Cellmark = s

failure to detect the unique allele detected in Chu = s testing is easily explained, as the State points

out, by the quantitative decline of the sample.

Although Chu had access to a liquid extract for his testing, ReliaGene

and Orchid Cellmark were forced to use a buffer solution to re-suspend possible

trace amounts of DNA attached to the walls of seemingly empty tubes.

Because the epithelial DNA was originally derived from cells from the

skin of the victim = s face, one would expect the victim = s cells in the epithelial sample to be, by far, the

most abundant, explaining the outside labs = ability to obtain a full DNA profile matching the

victim, even from the trace amounts of DNA.

Chu = s ability to detect only one foreign allele suggests

that the epithelial samples contained only a small amount of DNA extraneous to

the victim. So it is not surprising that

this single foreign allele would be lost after the massive decline in the

quantity of the sample. Likewise, Orchid

Cellmark = s failure to detect one of the alleles detected by

ReliaGene could have resulted from the further decline in the sample caused by

the second round of tests.

If the testing of the three labs is considered together, a stronger

link to applicant is established. Each

lab detected at least one unique allele that was not detected by the

others. Such results could be explained

by the loss of some alleles caused by a quantitative decline in the sample,

combined with the detection of additional alleles through progressively more

sensitive techniques (or perhaps by chance).

If all of the detected alleles that correspond to the tested loci are

considered without regard to which lab detected them, then there were six

alleles unique to applicant out of fourteen that he possessed that were

subjected to tests. We do not know if a

statistical calculation could be done that incorporated all three labs = results. We

simply point out that the discovery of diverse alleles unique to applicant by

the three labs tends to inculpate applicant. So, the further testing of the

epithelial samples seems to have produced a stronger inculpatory inference than

the epithelial samples originally provided.

It is nevertheless true that the

epithelial results do not approach the strength of Chu = s results for the sperm samples. The outside labs were not able to obtain any

results for the sperm samples. The

failure to obtain results is not exculpatory in itself; it might simply mean

that the samples had degraded to the point where re-testing could not produce

any results. But with respect to the

strength of the test results, the parties and the habeas court have failed to

appreciate the differences between the sperm samples and the epithelial

samples. It is true that ReliaGene and

Orchid Cellmark produced results that are much weaker statistically than some

of the results obtained by Chu.

Applicant sees this difference in the strength of the results as

indicating that the DNA evidence shows the link to applicant to be less

substantial than previously thought, while the State chalks up this difference

to the loss of alleles caused by a quantitative decline in the sample. Neither position is correct. The difference in the statistical strength of

the results is a consequence of the fact that different samples are at

issue. Chu relied upon the sperm samples

at trial, and Bromwich = s statistical calculation of 1 in 232,000 was

undoubtedly based upon the sperm samples.

The results obtained by the outside labs were for the inferior

epithelial samples. For the epithelial

samples, it appears that the outside labs obtained stronger results than Chu

obtained, and discovered additional alleles possessed by applicant that were

not previously discovered in the HPD testing.

Although we do not entirely agree with the State = s reasoning, we agree that the subsequent test

results tend to confirm applicant = s guilt.

In assessing whether the consumed DNA material constituted A potentially useful @

evidence, we consider the likelihood that a defense expert would have produced

exculpatory results if given the opportunity to test sperm and epithelial

portions of the original liquid DNA extract.

We conclude that the likelihood of an exculpatory result is small,

though not zero. Although Bromwich

criticized Childs-Henry = s lack of documentation and would have preferred

that she run more definitive tests for semen, he did not suggest that she

obtained an incorrect result, or that any flaw existed in her analysis that

would have undermined the validity of Chu = s results. As

we have explained, Bromwich found that Chu had A developed

clean, interpretable profiles @ that were A good quality and clear results from potentially

difficult forensic evidence samples. @ Bromwich

calculated a 1 in 232,000 random match probability for the African-American

population that was A relatively strong @ given

the nature of the sample. We also note

that it is virtually impossible for applicant = s DNA

to have contaminated the original test results because the swab DNA was typed

before applicant was even a suspect.

Nevertheless, in a city the size of Houston, a 1 in 232,000 probability

raises the possibility that a handful of people might perhaps be included in

the DNA results. A defendant in

applicant = s position would hope that testing by a defense

expert would detect additional alleles inconsistent with the defendant = s DNA profile.

And given the now-tarnished reputation of the HPD Crime Lab, a defendant

might even hope that a defense expert would obtain dramatically different

results, revealing some unknown malfeasance by the lab.

The re-testing by ReliaGene and Orchid Cellmark tend to undercut any

such hopes, as the re-testing has produced results consistent with applicant = s DNA. But,

while contamination of the original HPD test results with applicant = s DNA is a virtual impossibility, it is possible

that contamination could have occurred later, in time to skew the re-testing

results. Dr. Johnson believed that to be

a possibility, Orchid Cellmark = s A unknown person @ result for one of the epithelial samples may be an

example of contamination, and the HPD Crime Lab = s act

of forwarding an incorrect reference sample to ReliaGene hardly inspires

confidence. The possibility of contamination

may also be increased somewhat by the fact that the tubes were seemingly empty,

with relevant Crime Lab personnel believing that the evidence had been

consumed, so the HPD Crime Lab may not have had as much incentive to maintain

the integrity of the evidence.

Given the paucity of authority and the brevity of the pronouncements

regarding whether evidence is even A potentially useful, @ we

are not certain whether an inquiry into potential usefulness would include

looking at other evidence at trial tending to show that the defendant was

guilty and, therefore, that DNA testing by a defense expert would not likely

yield exculpatory results. The

background portion of this opinion outlines the substantial, persuasive

evidence of applicant = s guilt aside from the DNA test results, and we will

discuss this evidence in connection with the ineffective assistance of counsel

claim later in this opinion. This

inculpatory evidence would further support a conclusion that the likelihood of

exculpatory results from defense DNA testing was slim.

Nevertheless, we refrain from deciding whether the consumed DNA

evidence in this case meets a threshold showing of potential usefulness. That the likelihood of exculpatory results

was slim is a factor that may be taken into account when assessing the

existence or absence of bad faith. Where

exculpatory results were unlikely, an inference can be drawn that the DNA analyst

was probably not acting with the intent to deprive the defendant of exculpatory

evidence when he destroyed the sample. A

threshold showing of potential usefulness may be a worthy concept to apply in a

future case; we simply decide here to move on to the question of bad faith.

b.

A Bad Faith @

The habeas court = s finding of A bad faith @ is based in part upon what we have already

recognized to be an inaccurate definition.

A Bad faith @ is more than simply being aware that one = s action or inaction could result in the loss of

something that is recognized to be evidence.

As the cases we have discussed show, bad faith entails some sort of

improper motive, such as personal animus against the defendant or a desire to

prevent the defendant from obtaining evidence that might be useful. Bad faith cannot be established by showing

simply that the analyst destroyed the evidence without thought, or did so

because that was the common practice, or did so because the analyst believed

unreasonably that he was following the proper procedure.

No evidence in this case suggests that Childs-Henry or Chu acted in bad

faith. Chu specifically stated in his

affidavit that his consumption of the evidence was not the result of a desire

to prevent additional testing. The

habeas court was not required to believe that affidavit, but to find bad faith,

a finder of fact must do more than simply disbelieve proffered evidence of good

faith: There must be some evidence from which an inference of bad faith can be

drawn. There is no such evidence

here. Neither analyst has been shown to

have any animus against applicant C applicant was not even a suspect at the time testing

was conducted. Nor is there any evidence

that the analysts were aware of any impropriety in their own conduct, such as a

history of falsifying test results. [132] The Bromwich Report explained that the

failures in the HPD Crime Lab were the result of a lack of training and of the

isolation of the DNA section of the Crime Lab from the forensic community, not

the actions of A rogue analysts. @

The habeas court gave three reasons for finding bad faith. First, it concluded that the analysts must

have been aware of a law that was enacted but not yet effective. But the history of Article 38.39 reveals that

the statute was not enacted until after the HPD Crime Lab = s DNA testing in this case. The legislation was originally introduced on

January 17, 2001. [133] The bill passed the Senate on February 19,

2001, and passed the House in an amended version on March 22, 2001. [134] After the bill was sent to a conference

committee, it passed both houses of the Legislature on April 3, 2001. [135] The bill was signed by the Governor on April

5, 2001, and made effective immediately. [136] As we explained earlier, the DNA from the

swab samples was typed on February 20, 2001. We find no basis for the habeas

court = s conclusion that the analysts were aware of this

impending legislation.

Regarding the FBI and NRC recommended standards, we agree that the HPD

Crime Lab = s analysts should have been aware of them. But given the lack of training and the

isolation of the crime lab from the forensic community, it is questionable

whether the analysts were actually aware of them. Even if they were, there is no evidence to

suggest that they believed that the standards regarding preservation of a

sample would apply in this case.

When Childs-Henry discarded the original swabs, there were redundant

samples of DNA. Although it would have

been better to retain the original swabs, the existence of redundant samples

would appear to satisfy the FBI and NRC guidelines.

The evidence is clear that, unlike Childs-Henry, Chu understood that

his work would consume all of the remaining sample. The habeas court cited Chu = s explanation that he had to consume the sample due

to the small amount of DNA, but Chu further testified at trial to conducting a

cross analysis of the swabs, which could not have occurred unless he tested the

material from both swabs, which in turn would require consuming all of the

sample. As the Bromwich Report explains,

Chu made a mistake in testing samples from both swabs. He should have saved one of the epithelial

samples and one of the sperm samples for later testing, which could have been

conducted by another DNA lab. But the

Bromwich Report does not suggest that Chu = s failure to do so was anything other than a

mistake.

Finally, though we accept that

the habeas court can, from its own recollection, recount common practices

within that court, we cannot accept the habeas court = s conclusion that the HPD Crime Lab analysts must

have been aware of a practice in Harris County regarding any notification that

evidence would be consumed in testing.

As an example of this practice, the habeas court cited the signed

acknowledgment arising in the instant habeas proceedings regarding Orchid

Cellmark = s anticipated testing. This document, executed years after the

public disclosure of serious problems with the

HPD Crime Lab, is not particularly probative of the practice followed

before these problems came to light.

Further, given the trace amounts of DNA and ReliaGene = s use of a buffer solution, ReliaGene = s testing could have destroyed any remaining

sample. At the very least, Pineda = s affidavit suggests that ReliaGene = s testing could have been expected to degrade the

sample further, resulting in a further loss of alleles for any subsequent

testing. Yet, there was no acknowledgment

regarding ReliaGene = s anticipated testing.

Moreover, we see a practical problem with the idea that analysts should

have notified the prosecutor of the possible consumption of the evidence in

this case. HPD = s DNA testing was conducted, and the liquid extract

was consumed, before there were any suspects.

Whatever the practice of the Harris County Criminal District Courts,

there was no defense attorney for the District Attorney = s Office to notify at the time DNA testing was

conducted. Given the lack of training

received by the HPD Crime Lab = s DNA analysts, nothing in the record suggests that

Childs-Henry and Chu were aware of any need to notify the District Attorney = s Office before consuming the sample, especially

since no prosecution was pending.

B.

Perjury/False Testimony Claim

1. The Parties = Arguments and the Habeas Court = s Findings

Applicant claims that Chu = s statistical frequency estimate constituted A false testimony @ and A possible perjury @ by a

prosecution witness in violation of the Fourteenth Amendment to the United

States Constitution. To support his

claim, applicant relies upon statements in the Bromwich Report, a letter from

Orchid Cellmark, and statements made by Dr. Johnson in her habeas

affidavit. From the Bromwich Report,

applicant cites statements that Chu = s statistical frequency estimate was A incorrect and misleading @ and based upon a practice that was A extremely flawed. @ Applicant characterizes Orchid Cellmark = s statistical frequency estimate of 1 in 255 for

African-Americans as A the true statistical frequency for black persons. @ And

applicant cites Dr. Johnson = s statements that Chu = s

trial testimony was A completely unsupported scientifically @ and A patently false, @ as well as her statement that a mixture of DNA A cannot possibly statistically match only one person. @

Finding in the State = s favor on this claim, the habeas court concluded: A Because the State did not knowingly use false or

perjured testimony at trial, the applicant failed to show that he was denied

Due Process under the Fourteenth Amendment to the United States Constitution. @ [137]

Applicant argues in his brief that A logic

suggests that . . . if the DNA found on the evidence was a mixture of more than

one person = s DNA, then it could not have come from only one

person. @ Applicant

then echoes statements from the Bromwich Report and from Dr. Johnson to the

effect that Chu = s testimony was A contradictory,

incorrect, misleading, completely inappropriate . . . , internally

contradictory . . . , unsupported scientifically @ and A patently false. @ Applicant

contends that Chu, an agent of the State, committed perjury and that the

prosecutor unknowingly presented Chu = s false testimony.

Applicant also argues that the testimony was harmful because DNA is

powerful evidence and Chu = s scientific conclusion was dramatic and cast doubt

on all of the defensive evidence as well.

Applicant also points to Orchid Cellmark = s 1 in

255 estimate and the Bromwich Report = s 1 in 232,000 estimate as differing from Chu = s claim that no one on Earth but applicant could

have committed the crime.

The State counters that Chu = s testimony was not perjury because no evidence

shows that Chu had an intent to deceive or knew that his statistical

calculations were false. Characterizing

Chu = s calculations as A false @ or A arguably false, @ the State contends that applicant is required to

show by a preponderance of the evidence that the testimony contributed to his

conviction or punishment and that he did not do so. The State discusses a great deal of the

evidence introduced at trial and concludes that A ample

evidence, @ aside from Chu = s testimony, demonstrates applicant = s guilt.

2.

Preservation of Error

Applicant made no complaint about the alleged falsity of Chu = s testimony at trial. There is at least a question regarding

whether applicant has forfeited his complaint as a result. [138] This question is complicated by the fact that

the State has a continuing A duty to correct > false = testimony whenever it comes to the State = s attention. @ [139] Without

expressing any opinion on the preservation of error question, we will address

the merits.

3.

The Law

How we categorize applicant = s claim is crucial to determining the standard of

materiality or harm to be applied.

(a) Knowing

use of perjured testimony - direct appeal

A prosecutor who procures a conviction through the knowing use of

perjured testimony violates due process:

[Due process is violated] if

a State has contrived a conviction through the pretense of a trial which in

truth is but used as a means of depriving a defendant of liberty through a

deliberate deception of court and jury by the presentation of testimony known

to be perjured. Such a contrivance by a

State to procure the conviction and imprisonment of a defendant is as

inconsistent with the rudimentary demands of justice as is the obtaining of a

like result by intimidation. [140]

A

conviction is considered to have been procured through the use of perjured

testimony if the perjured testimony is material. The standard of materiality for a prosecutor = s knowing use of perjured testimony is the harmless

error standard articulated in Chapman v. California : [141]

the evidence is material (and harmful) unless it can be determined beyond a

reasonable doubt that the testimony made no contribution to the defendant = s conviction or punishment. [142] This most favorable materiality or harm

standard is available to a defendant on direct appeal. [143]

(b) Knowing

use of perjury - habeas corpus

On habeas corpus, the standard of harm that must be satisfied to obtain

relief may be more burdensome to the defendant than the standard of materiality

that must be satisfied to establish a due process violation. [144] In Ex parte Fierro , we determined

that, where the habeas applicant A had the opportunity to discover the basis of his

claim in time to advance it at trial or in a motion for new trial, @ he must show A by a preponderance of the evidence that the error

contributed to his conviction or punishment. @ [145] In other

words, we employed the normal standard on habeas review, with the burden on the

applicant. [146]

Where the habeas applicant lacked such an opportunity, we left open the

possibility that he might A avail himself of the Chapman harmless error

standard. @ [147]

(c) Unknowing use

of perjured testimony - habeas corpus

We have recently held that due

process may be violated by a prosecutor = s unknowing use of perjured testimony. [148] In Ex parte Chabot , the applicant had

no prior opportunity to discover the basis for his claim that DNA evidence

proved that the State = s witness had perjured himself. [149] In discussing what harm standard to employ

under those circumstances, we said, A [W]e see no reason for subjecting the two types of

errors [knowing versus unknowing use of perjured testimony] to different

standards of harm. @ [150] That is, the

preponderance of the evidence standard applies, on habeas review, to either the

knowing or the unknowing use of perjured testimony.

Chabot did not settle the

question left open in Fierro regarding whether a more favorable standard

of harm may apply to the knowing use of perjured testimony that the habeas

applicant had no prior opportunity to discover.

Rather, Chabot does not appear to have taken into account the

caveat in Fierro , and so Chabot simply stands for the proposition

that the preponderance of the evidence standard is appropriate for the

unknowing use of perjured testimony that the habeas applicant had no prior

opportunity to discover. [151] It remains unsettled whether a more favorable

standard might be available to a defendant in the A knowing use @ context.

(d) False

testimony as opposed to perjured testimony

In Estrada v. State , we held on direct appeal that false

testimony that was not perjury resulted in a due process violation when there

was A a fair probability that [the] death sentence was

based upon . . . incorrect testimony. @ [152] In that

case, the State = s witness gave inaccurate testimony about the prison

classification system but was not aware of the inaccuracy. [153] The jury sent out a note regarding the very

subject matter of this testimony. [154] It was later determined that the testimony

was inaccurate, and the State confessed error on direct appeal. [155] In sustaining the defendant = s contention, we held that his complaint was not

forfeited because the defendant A could not reasonably be expected to have known that

the testimony was false at the time that it was made. @ [156]

(e) False

testimony in the actual innocence context

Finally, we observe that our A actual innocence @

jurisprudence could encompass a claim on habeas that involved newly discovered

evidence that a witness = s testimony was false. [157] Under that jurisprudence, the habeas

applicant must show A by clear and convincing evidence that, presented

with both the inculpatory evidence at trial and the newly discovered or

available evidence of innocence, no reasonable juror would have convicted him. @ [158]

4.

The Present Case

To obtain the most favorable standard of materiality or harm that might

possibly apply, applicant must show that the State knowingly used perjured

testimony and that he did not have an opportunity to discover the perjury in

time to present a claim at trial or in a motion for new trial (or perhaps on

appeal). No one has contended in this

case that the prosecutors were aware that there was any problem with Chu = s statistical frequency estimate. [159] Nevertheless, we treat perjured testimony as

knowingly used if the witness was a member of the A prosecution team. @ [160] To obtain

review under the most favorable standard of materiality or harm, then,

applicant must at least show: (1) that Chu was a member of the prosecution

team, (2) that Chu committed perjury, and (3) that applicant did not have an

opportunity to discover the perjury in time to present his claim at an earlier

proceeding.

In Texas, the crime of perjury is committed if A with intent to deceive and with knowledge of the

statement = s meaning @ a person makes a false statement under oath or

unsworn declaration. [161]

In

connection with a claim regarding the knowing use of perjured testimony, the

First Circuit relied upon federal law defining perjury as A the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory. @ [162] The Fifth

Circuit, however, has eschewed A the strict legal definition of perjury @ and found A perjury @ within the meaning of the prohibition against its

knowing use when witnesses A did not candidly respond to the defense counsel = s questions. @ [163] But

regardless of the precise contours of the meaning of A perjury @ for the purpose of determining a due process

violation, applicant has not demonstrated that Chu committed perjury in this

case. The habeas court found against

applicant on this claim, so we review the evidence deferentially in the State = s favor.

Nothing in the record before us suggests that Chu intended to provide

false testimony or to deceive, or that he was less than candid in his

testimony. In other words, we have no

reason to believe that Chu thought his testimony was inaccurate. The Bromwich Report indicates that Chu = s method of calculating the statistical frequency

estimate, though extremely flawed, was the HPD Crime Lab = s usual practice.

The Bromwich Report did not suggest that HPD analysts were committing

perjury every time they testified to their usual calculations in court. As we have pointed out, the report said that

the problems with the HPD Crime Lab were due to poor training and not to rogue

analysts. There is ample support for a

finding that Chu did not commit perjury, consistent with the habeas court = s conclusion that the State did not knowingly use

perjured testimony. Because Chu did not

commit perjury, applicant = s claim does not fall within Fierro = s caveat regarding knowing-use-of-perjury claims

that could not have been presented previously.

We again leave open that question. [164]

For habeas corpus proceedings involving the unknowing use of perjured

testimony, the harm standard would be preponderance of the evidence, as we have

stated above. Applicant would not be

entitled to a more favorable standard for the unknowing use of false (but not

perjured) testimony. The preponderance

of the evidence standard is less favorable to applicant than the standard

employed in analyzing an ineffective assistance of counsel claim under Strickland

v. Washington . [165] As explained below, applicant fails to meet

the prejudice prong of Strickland .

This means that applicant = s false evidence claim must also necessarily

fail.

C.

Ineffective Assistance of Counsel

1. The Parties = Arguments and the Habeas Court = s findings

In his application, applicant contends that defense counsel Greenlee

performed deficiently in failing to hire a forensic or DNA expert. Applicant further claims that, had defense

counsel hired an expert: (1) Chu = s statistical analysis would have been revealed at

trial as false, (2) the jury would have been made aware that Chu violated the

standard of care in his profession when he consumed all of the DNA evidence,

and (3) defense counsel would have been able to obtain the same type of testing

that was later conducted by ReliaGene and Orchid Cellmark. Applicant also contends that Greenlee performed

deficiently by failing to object to the DNA test results on the basis of Chu = s consumption of the sample, by failing to move for

a continuance after Childs-Henry testified that there was liquid extract sample

remaining so that DNA testing could then occur, and by failing to adequately

cross-examine Childs-Henry and Chu at trial.

In his brief, applicant also points to Greenlee = s lack of prior experience in DNA matters and

suggests that he could not possibly conduct a proper investigation without the

help of an expert. He also argues that

there was no good reason for Greenlee to forgo an expert witness who could have

enhanced the defense trial strategy of emphasizing the unfairness of the lab = s consumption of all of the DNA evidence. Applicant also contends that there were many

areas of possible impeachment of the State = s experts that were not raised at trial. Applicant

also describes as A inexplicable @ Greenlee = s failure to move for a continuance when

Childs-Henry indicated that DNA extract still existed.

Regarding the prejudice prong of Strickland , applicant contends

that, had counsel performed properly, the following information would have been

learned and used at trial: (1) that Chu = s statistical frequency estimate was illogical and

false, (2) that the HPD Crime Lab = s consumption of the entire sample was unnecessary

and improper, (3) that the quality of Childs-Henry = s testing for semen was poor, and (4) that obtaining

DNA profiles from a mixture was fraught with difficulty. Applicant contends that this information

would have changed A the entire complexion of the case. @

The State counters that Greenlee made strategic decisions with

plausible bases after a thorough investigation.

The State points to various acts by defense counsel and his articulated

strategies. This discussion by the State

essentially rehashes the habeas court = s findings.

The court found that Greenlee = s testimony at the evidentiary hearing was

credible. The court found that Greenlee

had a good working relationship with the prosecutors, who provided him with

whatever information he requested, and had free access to the State = s files and evidence. It also found that Greenlee had no reason to

doubt Glaeser = s representation that the DNA evidence had been

consumed, with nothing left for an independent analysis. The court found that Greenlee = s decision to proceed without an expert was based on

a strategy of arguing to the jury the unfairness of being denied an opportunity

to conduct independent testing. The

court found that this strategy was formulated after a thorough investigation

that included consulting at least one other defense attorney. The

court also pointed to Greenlee = s strategy of cross-examining the crime scene

officer, Verbitskey, to show that he was not qualified to collect the swabs

from the victim = s cheek and may have exposed the evidence to

contamination. The court found that

defense counsel = s cross-examination of Childs-Henry was

strategically designed to show that she was results-oriented, could not

describe the protocol and procedures she followed in performing the DNA

extraction, and could not confirm that she followed the proper steps in the

proper order during the procedure. The

court also found that Greenlee = s cross-examination of Childs-Henry elicited what

Greenlee perceived to be the beneficial testimony that only a A sloppy chemist @ would consume all of the evidence in performing a

DNA analysis. And the court found that

defense counsel cross-examined Chu with a strategy toward A demonstrating that Chu had consumed all of the DNA

evidence without regard for the fact that the defense was denied an opportunity

to conduct independent DNA testing. @ The court

further found that Greenlee believed that his cross-examination succeeded in

this purpose and that he did not need a consulting expert to accomplish that

end.

The court also found that defense counsel emphasized in closing

argument that the defense was unfairly denied the opportunity to conduct

independent DNA testing and that the jury should not accept the DNA results

solely on the word of the State = s witnesses.

The court further found that defense counsel did not move to suppress

the DNA test results because he did not believe he had a valid legal basis for

doing so. The court also found that

Greenlee was surprised by Childs-Henry = s testimony that there was DNA sample remaining,

that Greenlee explored this issue with the prosecutor and the State = s witnesses, and that Greenlee determined that there

was in fact no DNA sample left to test.

And the court found that the problems with the HPD Crime Lab did not

become public knowledge until November 2002.

The court further found that, against counsel = s advice, applicant made an intelligent, knowing,

and voluntary decision to testify. The

court found that Greenlee believed that the negative consequences of applicant = s decision to testify outweighed the negative impact

of the DNA evidence.

Based upon its own independent recollection of the trial, the court

found that Greenlee = s cross-examination of HPD Crime Lab personnel was A effective trial strategy in that it was aggressive,

probing, confrontational and effective @ regarding an attack on the HPD Crime Lab protocol. The court also found that Greenlee = s decisions C not to retain a consulting expert, not to pursue

independent DNA testing, and not to seek a continuance C A were all made after a thorough investigation and

were reasonable trial strategy. @ The court

echoed this particular finding in its conclusions of law, and the court also

concluded that applicant failed to show that the trial court would have

committed error in denying a motion to suppress the HPD Crime Lab = s DNA test results.

2.

Deficient Performance

Strickland prescribes a

two-part test for determining whether a defendant has been constitutionally

deprived of effective assistance of counsel: (1) deficient performance, and (2)

prejudice. [166] Deficient performance means that A counsel made errors so serious that counsel was not

functioning as the > counsel = guaranteed the defendant by the Sixth Amendment. @ [167] To establish

deficient performance, A the defendant must show that counsel = s representation fell below an objective standard of

reasonableness. @ [168] When trial

counsel does not conduct a complete investigation, his conduct is A reasonable only to the extent that reasonable

professional judgments support the limitations on investigation. @ [169]

Despite the habeas court = s findings, the record raises serous issues with

respect to Greenlee = s performance.

One reason Greenlee gave for declining to hire an expert was that the

expert might validate the procedures followed by the HPD Crime Lab in this

case. But defense counsel could have

initially hired an expert for consulting-only purposes, to be designated later

as a testifying expert if the expert = s opinions turned out to be favorable. In Williams v. State , a case decided

years before applicant = s trial, we recognized that an indigent defendant

was entitled to make his request for funds to hire an expert witness in an ex

parte hearing. [170] The rationale underlying our holding was the

need to protect the confidentiality of the defendant = s work product. [171] In Skinner v. State , decided the same

year as Williams , we explained that an expert = s A comments about the strengths and weaknesses of the

defense theory @ were covered by the work product doctrine. [172] Williams also quoted a Fifth Circuit

discussion that emphasized the need to treat monied and indigent defendants

equally:

The government should not be

able to obtain a list of adverse witnesses in the case of a defendant unable to

pay their fees when it is not able to do so in the cases of defendants able to

pay witness fees. When an indigent defendant = s case

is subjected to pre‑trial scrutiny by the prosecutor, while the monied

defendant is able to proceed without such scrutiny, serious equal protection

questions are raised . . . . [173]

A defendant

with the resources to hire his own expert could hire someone on a

consulting-only basis without the State ever discovering that he had done so. [174] Under Williams and Skinner , an

indigent defendant has the same capability.

In choosing to forgo an expert, defense counsel elevated the importance

of his own personal investigation of DNA science. We will not discount the possibility that an

attorney with no prior knowledge of DNA matters may become sufficiently

knowledgeable through his own diligent sifting of the scientific literature,

without the aid of an expert. But it is

apparent in this case that Greenlee was not able to acquire sufficient

knowledge on his own. Had he done so, he

would have known that the HPD Crime Lab failed to adhere to accepted practices

when it consumed all of the DNA evidence, and he would have understood that Chu = s statistical frequency estimate was probably

incorrect. Even without an expert of his

own, Greenlee could have at least cross-examined Chu with relevant scientific

literature C such as the FBI and NRC standards C regarding the desirability of retaining a portion of

the DNA evidence for additional testing. [175] Defense counsel could have pointed out,

through questioning and argument, that two of the tubes of DNA material were

redundant and did not have to be tested.

That Greenlee did none of these things shows that he was probably

ill-equipped to research the field without expert assistance.

Even so, defense counsel should have conducted an investigation that

was diligent enough to reveal that he needed the help of an expert in preparing

for trial and cross-examining witnesses.

In 2001, a variety of investigative tools existed that would have

enabled Greenlee to determine that he needed an expert witness, including: an

informal pre-hiring consultation with an expert, consultation with knowledgeable

defense attorneys, continuing legal education, use of a medical library, and

use of the internet. Although Greenlee

consulted other attorneys, we cannot conclude that doing so was sufficient

investigation in this case given the fact that Greenlee still lacked much understanding of DNA science.

And expert testimony would probably have given a boost to the defense

beyond what could have been accomplished through cross-examination. A live expert could have explained that the

FBI and NRC guidelines were not followed when Chu consumed virtually the entire

sample in this case, and an expert could have testified to the flaws in Chu = s statistical frequency calculation and given a more

accurate calculation of the random match probability. A defense expert = s testimony on these subjects would have been likely

to carry more weight with a jury than cross-examination alone.

Cross-examination may render unnecessary the presentation of one = s own expert, especially if the cross-examination

aggressively exploits learned treatises, [176]

but that did not happen in this case.

Greenlee did bring up the unfairness of consuming the DNA evidence, but

Chu = s rejoinder was that the sample size was so small

that it had to be used up. The defense = s cross-examination of Chu gave the jury no reason

to think that Chu = s effective consumption of the entire sample was

anything other than an unfortunate but unavoidable circumstance.

The only evidence that potentially attacked Chu = s explanation was the testimony elicited from

Childs-Henry that the entire sample could be consumed if the chemist was

sloppy. But Childs-Henry also said that

the entire sample could be consumed if it was too small, which was consistent

with Chu = s explanation.

And while Childs-Henry indicated that the sample was large enough to

have some left for re-testing, the credibility of that assessment was

undermined by her error in believing that some sample still remained. Defense counsel did a creditable job of

impeaching Childs-Henry with her inability to explain her own procedures; her

mistake regarding the existence of any remaining sample, though a surprise,

impeached her credibility as well.

However, we reject applicant = s contention that Greenlee was deficient in failing

to move for a continuance after Childs-Henry = s

testimony that DNA material remained to be tested. The evidence at trial (as well as the habeas

proceedings) was that Childs-Henry was simply mistaken in her belief that there

was liquid extract remaining. We do not

think her testimony at trial fairly raised the notion that there might be trace

amounts of DNA adhering to seemingly empty tubes. To the extent that her testimony suggested

that there should have been DNA material remaining, that conclusion was one

that Greenlee should have drawn prior to trial, and we have already concluded

that Greenlee was deficient in that regard.

3.

Prejudice

Having found deficient performance, we turn to the question of

prejudice. The prejudice prong of Strickland

requires showing A a reasonable probability that, but for counsel = s unprofessional errors, the result of the

proceeding would have been different. @ [177] A A reasonable probability is a probability sufficient

to undermine confidence in the outcome. @ [178] It is not

enough that counsel = s errors could have had A some conceivable effect on the outcome of the

proceeding, @ but a defendant does not have to show that counsel = s deficient conduct A more

likely than not altered the outcome of the case. @ [179] This usual

standard for showing prejudice is not always sufficient, however. If the proceeding was A rendered neither unreliable nor fundamentally unfair @ by counsel = s deficient performance, then the prejudice question

can be answered in the negative to prevent the defendant from obtaining a A windfall. @ [180]

As we explained in connection with his Youngblood claim,

applicant would not have been entitled to the suppression of the DNA test

results. Had counsel conducted a proper

investigation, an attack might have been made on the quality of Childs-Henry = s testing, but there is no indication that such an

attack would do anything to undermine the validity of Chu = s results, which were based upon his own

testing. Defense counsel would have been

able to introduce evidence that consuming the entire sample was bad laboratory

practice, but there is no indication that the test results themselves flowed

from any flawed practices. To the

contrary, Bromwich characterized Chu = s work as generating A good

quality and clear results @ and developing A clean,

interpretable profiles. @ And a jury

would still be confronted with the fact that the genetic typing occurred before

applicant even became a suspect C eliminating the possibility of contamination from

applicant = s own DNA.

Had defense counsel conducted a proper investigation, he would have

been able to introduce evidence that Chu = s statistical frequency estimate was flawed, and he

would have been able to introduce a correct estimate in line with Bromwich = s calculations: e.g. a random match probability for

the African-American population of 1 in 232,000. A probability of 1 in 232,000 is still quite

low, although, with a city the size of Houston, it might allow for the possibility

of a handful of other people matching the test results.

But when a 1 in 232,000 random match probability is combined with the

other evidence introduced at applicant = s trial, there is no reasonable probability of a

change in outcome. The victim picked

both applicant and his car out of separate lineups. Although the victim could not or did not

identify applicant via closed-circuit television at trial, the victim indicated

that he was positive when he picked applicant out of a pretrial lineup, and the

circumstances surrounding that pretrial identification (the victim = s smile when the camera panned on applicant) further

reinforces the identification. A composite

sketch drawn from the victim = s descriptions was consistent with applicant = s appearance.

The exterior and interior of applicant = s

house, along with his yard, were consistent with the descriptions given by the

victim to law enforcement. Purple

clothing found in applicant = s house and car were also consistent with the victim = s prior descriptions, as was a dark baseball cap

recovered from applicant = s car. The

color of the interior of applicant = s car was consistent with the victim = s description, and the exterior of the car was

damaged in a way that was consistent with the victim = s brother = s description.

And the bottle of orange cocoa butter lotion found in applicant = s house matched the victim = s description of A orange

grease @ used by the perpetrator.

At trial, E.T. identified from photographs various items that looked

like items he encountered when he was kidnapped: the outside of applicant = s house, the brown couch, the purple clothes, and a

Houston Oilers cannister. E.T. pointed

to circles on applicant = s sidewalk that he recognized.

Applicant = s defensive evidence was not helpful. His alibi was full of holes. Although electronic monitoring established

that applicant arrived home at 3:07 p.m., that arrival time did not exclude him

as the perpetrator. The family members

who attempted to establish an alibi gave testimony that was inconsistent with

each other and with their own prior statements, resulting in estimates for

applicant leaving the Savage residence ranging from 1:30 to 3:30 p.m. The prosecution effectively exploited David

Savage = s testimony that he saw applicant on television on

February 12 th , at which time applicant was not a suspect, but the

composite drawing was being shown.

Finally, applicant himself stated that the victim was taken to an

apartment A before he come to my house. @ It is not

apparent how this could be taken as anything other than an inadvertent

admission that the child was at applicant = s house.

The jury also heard applicant = s refusal to acknowledge responsibility for any of

the offenses he had already been convicted of.

And applicant = s testimony, some of which was evasive, showed his

disregard for the geographical-limitation conditions of his parole and his

numerous violations of those conditions.

Applicant = s testimony also suggested his own consciousness of

guilt, as he advanced implausible explanations in an attempt to distance

himself from evidence that tended to link him to the crime: He denied owning the cocoa butter lotion C saying that he must have taken it from his brother = s room and that it was owned by his brother = s sister. And

applicant denied that his car was damaged on February 11 th , claiming

that the police must have caused the damage while the car was in their

custody. And he accused parole officer

Butler of lying about the conditions of his parole. All of the evidence shows a very strong case

against applicant, even when Bromwich = s criticisms of the HPD Crime Lab = s conduct are taken into account. [181]

Finally, we conclude that the new test results from ReliaGene and

Orchid Cellmark do not alter the prejudice analysis in applicant = s favor. It

is not a foregone conclusion that an A effective @ attorney would have sought further testing upon

discovering the errors committed by the HPD Crime Lab in this case. [182] Even so, we have already explained, in

connection with the Youngblood discussion, that the test results from

ReliaGene and Orchid Cellmark were not exculpatory, but rather tended to

incriminate applicant.

III.

CONCLUSION

For the reasons outlined above, we reject applicant = s Youngblood , perjury/false statement, and

ineffective assistance of counsel claims. [183] We deny relief.

Delivered: September 29,

2010

Publish

[1] On

cross-examination, a police officer testified that applicant = s skin was lighter than the complainant = s skin as depicted in photographs, but the officer

noted that photographs A very often change the tone of a black person. @

[2] All of the

sample was consumed except for microscopic residue adhering to the walls of the

tubes.

[3] According to

the habeas court = s finding number two, the house was approximately

eleven miles away from the site of the kidnapping.

[4] The house

contained another bedroom that was being used to store property belonging to

applicant = s brother.

[5] The table is

taken from Michael R. Bromwich, Final

Report of the Independent Investigator for the Houston Police Department Crime

Laboratory and Property Room , Report at 190 (June 13, 2007)

(allelic table of STR Results Obtained by Mr. Chu) and is contained in the

habeas record. The loci D3S1358,

D8S1179, D21S11, D18S51, D5S818, D13S317, D7S820 have been abbreviated to D3,

D8, D21, D18, D5, D13, and D7 respectively.

In the table, A EF @ stands for A epithelial fraction @ and

SF stands for A sperm fraction, @ and explanatory references to that effect in the

table have been omitted.

The parties

and the habeas court rely upon portions of the Bromwich Report in the instant

habeas proceedings, and in finding 55, the habeas court cites to the report and

to its website address. As will be

discussed below, the Bromwich Report made a number of general observations

about the DNA/Serology section of the Crime Lab. The portions of the report containing these

observations are not included in the habeas record, though they are available

at the website listed in finding 55, and the habeas court may have made

reference to these portions when it referred in finding 41 to certain general

practices of the HPD Crime Lab that were A subjects that the Bromwich Investigation would also

underscore in its report five years later. @ We have in

the past held that an appellate court may consider evidence that was not

formally admitted if it is treated as admitted by the trial court. Kissinger v. State , 501 S.W.2d 78, 79

(Tex. Crim. App. 1973); Richardson v. State , 475 S.W.2d 932, 933 (Tex.

Crim. App. 1972); see also Texas Health Enters. v. Texas Dep't. of Human

Servs. , 949 S.W.2d 313 (Tex. 1997).

Given the reliance by the parties and the habeas court and the ready

availability of the entire report at the website recited in the habeas court = s findings, we rely upon the Bromwich Report in its entirety.

[6] Id.

at 190 (text and allelic table).

[7] Id.

(allelic table).

[8] Id.

[9] Id.

[10] Id.

[11] Id. The A D21 @ locus in the allelic table appears to contain some

information contrary to Bromwich = s characterizations.

It displays the alleles A 18, 32.2 @ on one row and A 29 @ on the next row.

Id. Although Bromwich

stated that all alleles foreign to the victim are consistent with applicant = s DNA profile, id. at 190, no A 18 @ is contained in the victim = s or applicant = s profile at this locus. Id. (allelic table). The victim = s

profile contains a A 28 @ at this locus and the other three samples include a

A 28 @ in the results, id. , so the A 18 @ may have been a typographical error. Also, the report purports to indicate in

boldface type all of the alleles matching applicant that were foreign to the

victim, id. at 190, but A 32.2 @ does not appear in boldface, id. (allelic

table), though it matches applicant = s profile and is foreign to the victim = s profile.

If, as seems probable, the A 18 @ should be a A 28, @ it is also probable that the A 32.2 @ should be a A 31.2 @ C an allele possessed by the victim C which would follow what appears to be Bromwich = s convention of placing alleles belonging to the

same individual on the same row if those alleles are unique to that

individual. The body of this opinion

assumes these were indeed typographical errors.

If that assumption is incorrect, then the results match applicant = s profile in its entirety and contain a single

allele foreign to both the victim and applicant.

[12] Id.

[13] Id.

at 190.

[14] Chu

acknowledged that he could not say with 100 percent certainty that a mistake

would show up.

[15] Specifically,

the prosecutor recounted Savage = s testimony as follows: A Well, I remember when I went to work the next day

all the police were there and they were talking about it, and the TV was on and

I saw my cousin. Folks, that = s February 12.

Lawrence Napper = s name was never mentioned until February 23,

2001. Why did he see his cousin on

TV? The composite. He recognized his cousin on TV on February

12, 2001. @

[16] When asked

to explain his relationship to his A brother = s sister, @ applicant testified, A Me and

Ronnie have the same mother and the same father, but me and his sister and

other brother, they don = t have the same, they just have the same daddies. @ Applicant

also testified that his A brother = s sister @ was not related to him in any way.

[17] Defense

counsel objected to this testimony from applicant as nonresponsive, and that

objection was sustained. Several other

times, the trial judge sustained defense objections to applicant = s nonresponsive testimony.

[18] See Tex. Penal Code ' 12.42(c)(2).

[19] See Tex. Civ. Prac. & Rem. Code ' 132.001, et seq.

[20] Napper v.

State , Nos. 11-02-00017-CR & 11-02-00018-CR (Tex. App. B Eastland December 19, 2002, pet. ref = d) (not designated for publication).

[21] Id. ,

slip op at 4.

[22] Id.

at 4-5.

[23] Id.

at 6.

[24] Id.

at 8.

[25] Id.

[26] Bromwich, Report

at 4.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] The article

is in the habeas record.

[32] Bromwich, Executive

Summary at 4.

[33] Id. , Report

at 26.

[34] Id. , Executive

Summary at 10.

[35] Id.

at 8.

[36] Id.

at 7.

[37] Id.

at 10.

[38] Id. , Executive

Summary at 10, Report at 32.

[39] Id. , Report

at 50-51.

[40] Id.

at 32.

[41] Id.

at 122. And when DNA analysts did

recognize problems and voice concerns to their superiors, those concerns were

often ignored. Id. at 41. For example, Chu recognized a problem with

evidence being shuffled between A too many chemists, @ but

this concern was dismissed by one of his superiors. Id.

His concern proved to be prescient in the Lynn Jones case, two years

later. Id.

[42] Id. , Executive

Summary at 10.

[43] Id.

[44] Id. , Report

at 189.

[45] Id. , Executive

Summary at 13.

[46] Id. , Report

at 190.

[47] Id. , Executive

Summary at 13.

[48] Id. , Report

at 192.

[49] Id.

at 195.

[50] Id.

at 194-95.

[51] Id.

at 192.

[52] Id.

[53] Id.

at 194.

[54] Id.

at 191.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

at 140.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

at 141.

[64] Id.

at 190.

[65] Id.

at 191.

[66] Id.

[67] FBI, DNA

Advisory Board, Quality Assurance

Standards for Forensic DNA Testing Laboratories , Standard 7.2 (1998).

[68] National

Research Council, NRC II Recommendations, Recommendation 3.3.

[69] Id.

(introductory comment to Recommendation 3.3).

[70] Ex parte

Chabot , 300 S.W.3d 768, 772 (Tex. Crim. App. 2009).

[71] 488 U.S. 51

(1988).

[72] 540 U.S. 544

(2004).

[73] See George

E. Dix and Robert O. Dawson, 42 Texas

Practice , 2 nd ed., ' 22.63 (2001).

[74] The document

in that appendix appears to be a draft that was signed by the prosecutor but

not by defense counsel or the court. It is dated A 2004, @ it does not specify most of the items that were

tested, and it does not specify who would conduct the testing. As discussed above, in 2005, the parties

signed an authorization for Orchid Cellmark to conduct testing.

[75] See 540

U.S. at 548 (referring to substance as A potentially useful evidence @ where the claim was that A a fifth test @ might

produce exculpatory results) (emphasis in original).

[76] Ex parte

Pena , 71 S.W.3d 336, 337-38 (Tex. Crim. App. 2002).

[77] 448 U.S. at

52.

[78] Id.

at 57.

[79] 467 U.S. 479

(1984).

[80] Youngblood ,

488 U.S. at 57 -58 (quoting Trombetta , 467 U.S. at 486 ).

[81] Id.

at 58.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

at 56.

[86] Id.

at 56 n.*.

[87] See 467

U.S. at 487-90 .

[88] 373 U.S. 83

(1963).

[89] Trombetta ,

467 U.S. at 488 .

[90] Id.

[91] Id.

at 489 .

[92] Id.

[93] Id.

[94] Id.

at 490 .

[95] Fisher ,

540 U.S. at 545 .

[96] Id.

[97] Id.

at 548 (emphasis in original).

[98] Id.

[99] Id.

[100] Dix and

Dawson, ' 22.64.

[101] United

States v. Jobson , 102 F.3d 214, 219 (6 th Cir. 1996) (no evidence

that destroyed dispatch tape had contained any exculpatory information); Grady

v. State , 2008 WY 144 , P33, 197 P.3d 722, 732-33 (2008).

[102] United

States v. Williams , 577 F.3d 878, 882-83 (8 th Cir. 2009)

(firearm did not have to be operational to support conviction under firearm

charge, so evidence that firearm may not have been operational was not

potentially exculpatory).

[103] United

States v. Smith , 534 F.3d 1211, 1224 (10 th Cir. 2008) (serial

numbers would not have proven defendant = s innocence but shown only A that perhaps she handled her money differently than

a typical drug dealer @ ); Torres v. Mullin , 317 F.3d 1145, 1161 (10 th

Cir. 2003) (proving fingerprint did not belong to defendant had no exculpatory

value because fingerprint could have been made by a number of people who lived

in or visited the home).

[104] Williams

v. United States , 881 A.2d 557, 565 (D.C. App. 2005) (defendant did not

demonstrate how revolver owned by drug rival would have been exculpatory).

[105] Wenzel v.

State , 306 Ark. 527, 533 , 815 S.W.2d 938, 941 (1991) (DNA testing by the

FBI of vaginal swabs containing semen).

[106] State v.

Dulaney , 493 N.W.2d 787, 791 (Iowa 1992) (plasma sample show alcohol

concentration consistent with blood sample, so no valid claim that further

testing of blood sample could yield exculpatory results).

[107] Dix and

Dawson, ' 22.63.

[108] Id.

[109] Id.

[110] Jobson ,

102 F.3d at 218 ; United States v. Chaparro-Alcantara , 226 F.3d 616, 624

(7 th Cir. 2000); Stuart v. State , 127 Idaho 806, 816 , 907

P.2d 783, 793 (1995); State v. Lindsey , 543 So. 2d 886, 891 (La. 1989).

[111] United

States v. Garza , 435 F.3d 73, 75 (1 st Cir. 2006) (Defendant must

show A independent evidence that the [government] was

somehow improperly motivated. @ ); United States v. Thompson , 130 F.3d 676 ,

686 n.17 (5 th Cir. 1997) (no demonstration of malice in tape = s destruction); Gausvik v. Perez , 345 F.3d

813, 818 (9 th Cir. 2003) (The defendant must A put forward specific, nonconclusory factual

allegations that establish improper motive. @ ); Collins

v. Commonwealth , 951 S.W.2d 569, 573 (Ky. 1997) (Defendant A cannot substantiate any ill motive or intention on

the part of the Commonwealth in failing to collect the towel. @ ); Murray v. State , 849 So. 2d 1281, 1286

(Miss. 2003) (quoting Black = s Law Dictionary: A bad

faith @ means the A conscious doing of a wrong because of dishonest

purpose or moral obliquity; it is different from the negative idea of

negligence in that it contemplates a state of mind affirmatively operating with

furtive design or ill will @ ).

[112] Featherstone

v. Estelle , 948 F.2d 1497, 1505 (9 th Cir. 1991) (finding that

destruction of lineup photo was not in bad faith because A it was not deliberately done to deprive petitioner

of access to relevant evidence @ ); People v. Seaton , 26 Cal. 4 th

598, 656-57, 28 P.3d 175, 209 (2001) (no showing that police believed the

unpreserved blood evidence would have exculpated defendant or A that their purpose was to deny him the opportunity to

use the evidence to exculpate himself @ ); United States v. Day , 697 A.2d 31, 35-36

(D.C. App. 1997) ( A Nothing in the record on appeal hints, even

remotely, that the police destroyed the car so that [defendant] could not

examine it, or have it viewed by an expert. @ ); Dufour

v. State , 905 So. 2d 42, 68 (Fla. 2005) (quoting Guzman v. State ,

868 So.2d 498, 509 (Fla. 2003): A Under Youngblood , bad faith exists only when

police intentionally destroy evidence they believe would exonerate a defendant. @ ); Guzman , 868 So. 2d at 510 (no showing that

A any State actor intentionally deprived [defendant]

of evidence which the State actor believed to be exculpatory @ ); Dulaney , 493 N.W.2d at 791 (no evidence

State A intentionally destroyed @ blood sample A in an effort to deprive [defendant] of evidence @ ); State v. Berkley , 567 A.2d 915 , 918 n.3

(Me. 1989) (collusion designed to prevent independent testing would establish

bad faith); State v. Bailey , 677 N.W.2d 380, 393 (Minn. 2004) ( A no suggestion that the State destroyed or released

items > to avoid discovery of evidence beneficial to the

defense = @ ); Murray , 849 So. 2d at 1286 (bad faith

where A destruction was intentional and indicates fraud and

a desire to suppress the truth @ ); State v. Hernandez , 2005 ND 214 , P31, 707

N.W.2d 449, 461 (2005) (defining A bad faith @ to mean A the evidence was deliberately destroyed by or at the

direction of a State agent who intended to thwart and to deprive the defense of

information. @ ); State v. Bousum , 2003 SD 58 , P16, 663

N.W.2d 257, 263 (2003) (adopting North Dakota = s

definition of A bad faith @ ); Drury v. State , 2008 WY 130 , P19, 194 P.3d

1017, 1023 (2008) (In determining bad faith, A we

must take into account the State = s knowledge of the potential exculpatory nature of

the evidence. @ ).

The Supreme

Court of North Dakota has indicated that, although not constituting A bad faith, @ if there were shown to be a A systemic disregard @ of

the A State = s duty to zealously protect evidence in its

possession @ so that A haphazard handling and destruction of evidence . . .

is commonplace, @ then A prophylactic measures, such as an adverse-inference

instruction @ may be justified.

City of Bismarck v. Holden , 522 N.W.2d 471, 475 (N.D. 1994)

(ellipsis in original).

[113] Garza ,

435 F.3d at 75 (citing United States v. Femia , 9 F.3d 990, 995 (1 st

Cir. 1993)); United States v. Branch , 537 F.3d 582, 590 (6 th

Cir. 2008).

[114] Garza ,

435 F.3d at 75 ( A While the evidence was destroyed as a result of

Quinn = s conscious and deliberate decision, intentionality

is not enough to show bad faith. @ ); Bailey , 677 N.W.2d at 393 ( A destruction of the evidence was > intentional = @ but was not in bad faith).

[115] Garza ,

435 F.3d at 76 (no bad faith even though A it was not the > normal = procedure to destroy evidence in cases that were

still open @ ); United States v. Deaner , 1 F.3d 192, 200

(3 d Cir. 1993) ( A [W]e have not held that an improper procedure in and

of itself implies bad faith. While it

may permit such an inference, it does not syllogistically imply the presence of

bad faith as a matter of deductive logic. @ ); Guzman , 868 So. 2d at 509 ( A bad faith does not turn on whether law enforcement

officers followed established procedures @ ); State v. Lamae , 268 Kan. 544, 551 , 998

P.2d 106, 111 (2000) (failure of the DEA to follow its guidelines, though

troubling, not enough to show bad faith).

[116] Lovitt v.

True , 403 F.3d 171, 187 (4 th Cir. 2005) (court clerk exercised A serious error in judgment @ in destroying evidence); Murray , 849 So. 2d

at 1286 (bad faith is A not simply bad judgment or negligence @ ); State v. Hanna , 123 Wn.2d 704, 714 , 871

P.2d 135, 140 (1994) (failure to preserve and retain evidence may have

reflected A poor judgment @ but was based on a reasonable belief that the

evidence would not be relevant to either party).

[117] Carreno ,

363 F.3d at 888 (Sloppy work is not tantamount to bad faith.).

[118] United

States v. Stevens , 935 F.2d 1380, 1388 (3 d Cir. 1991) (test that

destroyed the evidence A might have inculpated or exculpated @ the defendant but A no one

knew, @ thus nothing suggested government agents A suspected that the saliva/semen sample . . . could

form a basis for exonerating @ the defendant); Jobson , 102 F.3d at 218 ( A no evidence that anyone in the Detroit Police

Department or the U.S. Attorney = s office suspected that the tape was exculpatory @ ); Carreno , 363 F.3d at 888 ( A no evidence government knew, or even suspected, that @ deported witness A would

testify in [the defendant = s] favor @ ).

[119] United

States v. Ramos , 27 F.3d 65, 71-72 (3 d Cir. 1994) (due to

inadequate training, government agent affiliated with the DEA believed he was

following office procedure in destroying notes); United States v. Houston ,

548 F.3d 1151, 1155 (8 th Cir. 2008) (officers not trained to

download video evidence).

[120] Lovitt , 403 F.3d at 187 n.3; Lovitt v. Warden , 266

Va. 216, 242 , 585 S.E.2d 801, 816 (2003).

[121] Gausvik ,

345 F.3d at 818 .

[122] United

States v. Beckstead , 500 F.3d 1154, 1159-60 (10 th Cir. 2007)

(Government destroyed the evidence before the defendant had opportunity to notify

the officials that the alleged drug lab and its chemicals were potentially

exculpatory and it was unlikely that further testing of the lab would produce

exculpatory results); United States v. Bohl , 25 F.3d 904, 910 (10 th

Cir. 1994) (discussing United States v. Richard , 969 F.2d 849 (10 th

Cir. 1992) where government destroyed boxes of marijuana and the defendant did

not show that the government knew he wanted them preserved for trial); Sharp

v. State , 286 Ga. 799, 802 , 692 S.E.2d 325, 329 (2010) (State unaware of

exculpatory value of condom that was lost A before [defendant] was arrested or identified as a

suspect @ ); State v. Eason , 133 N.H. 335, 342 , 577

A.2d 1203, 1207 (1990) (when police destroyed what they thought was an animal

carcass, they did not know victim had been murdered, much less that the

defendant murdered him).

[123] Monzo v.

Edwards , 281 F.3d 568, 580 (6 th Cir. 2002) ( A It is not enough that the police knew that semen

samples could be determinative of guilt or innocence if preserved or tested. @ ); State v. Osakalumi , 194 W. Va. 758, 765 ,

461 S.E.2d 504, 511 (1995) (even though police acted negligently in disposing

of a couch [with a bullet hole] that A was so obviously a part of a pending police

investigation, @ court could not say their actions were motivated by

bad faith).

[124] Beckstead ,

500 F.3d at 1161 .

[125] Yarris v.

County of Delaware , 465 F.3d 129, 133, 142-43 (3 d Cir. 2006)

(plaintiff = s petition alleged that detectives refused a request

to deliver slides to coroner but kept them in a paper bag under a desk until

the biological material rotted and became useless for DNA testing); Stuart ,

127 Idaho at 816 , 907 P.2d at 793 ( A There is a clear recognition that concealment is one

method of proving that the exculpatory value of the evidence was known to the

government prior to its destruction. @ Prosecution

concealed the existence of a tape recording of a phone call that would have led

to phone logs that were later destroyed.).

[126] United

States v. Cooper , 983 F.2d 928, 931 (9 th Cir. 1993) ( A The equipment = s value as potentially exculpatory evidence was

repeatedly suggested to government agents. @ Parole

officer and alleged drug lab = s landlord reported lab = s claims of legitimacy during pre-seizure

investigation. Law enforcement agents

knew lab was ostensibly configured to make a legal substance rather than

methamphetamine before destroying the lab = s equipment.); Bohl , 25 F.3d at 911 ( A [G]overnment was explicitly placed on notice that @ defendants A believed the tower legs were potentially exculpatory @ before government destroyed the evidence. And assertion of potentially exculpatory

value was not merely conclusory but was backed up by objective, independent

evidence.).

[127] State v.

Jackson , 302 S.C. 313, 316 , 396 S.E.2d 101, 102 (1990).

[128] State v.

McGrone , 798 So. 2d 519, 523 (Miss. 2001) (defense counsel subpoenaed

police officers for two separate hearings, but the officers never appeared).

[129] Smith ,

534 F.3d at 1224-25 .

[130] State v.

Youngblood , 173 Ariz. 502, 506 , 844 P.2d 1152, 1156 (1993); State v.

Craig , 490 N.W.2d 795, 797 (Iowa 1992).

See also Wenzel , 306 Ark. at 533 , 815 S.W.2d at 941 (quoting Youngblood = s statement that its standard was directed to A those cases in which the police themselves by their

conduct indicate that the evidence could form a basis for exonerating the

defendant @ ).

[131] See authorities

cited in previous footnote.

[132] Cf. Boyle

v. Johnson , 93 F.3d 180, 185-87 (5 th Cir. 1996) (referring to

accusations that Ralph Erdmann had falsified autopsies and committed perjury in

prior cases); State v. Clifford , 328 Mont. 300 , 321 n.4, 121 P.3d 489 ,

503 n.4 (2005) (referring to Erdmann and Fred Zain as examples of experts who

misstated, altered, or falsified results).

[133] Texas

Legislature Online History, Bill: SB 3, Legislative Session: 77(R), Council

Document: 77R 1805 GWK-F.

[134] Id.

[135] Id.

[136] Id.

[137] The habeas

court cited Ex parte Castellano , 863 S.W.3d 476 , 480 (Tex. Crim. App.

1993); Mooney v. Holohan , 294 U.S. 103, 112 (1935); and Pyle v.

Kansas , 317 U.S. 213, 216 (1942).

[138] See

Estrada v. State , 313 S.W.3d 274, 288 (Tex. Crim. App. 2010).

[139] Id.

at 31.

[140] Mooney ,

294 U.S. at 112 .

[141] 386 U.S. 18

(1967).

[142] Ex parte

Fierro , 934 S.W.2d 370, 372-73 (Tex. Crim. App. 1996).

[143] Id.

at 373 .

[144] Id.

at 373-74 .

[145] Id.

at 374-75 , 374-75 n.10.

[146] See id.

at 372 .

[147] Id.

at 375 n.10.

[148] Chabot ,

300 S.W.3d at 771-72 ; see also Ex parte Carmona , 185 S.W.3d 492 (Tex.

Crim. App. 2006).

[149] Chabot ,

300 S.W.3d at 770 .

[150] Id.

at 771 .

[151] The Second

Circuit has suggested that the unknowing use of perjured testimony violates due

process if a stronger showing of materiality or harm is made than is required

by the Chapman standard. Sanders

v. Sullivan , 863 F.2d 218, 225-26 (2 d Cir. 1988).

[152] 313 S.W.3d at 287 .

[153] Id.

at 286-87 .

[154] Id.

[155] Id.

[156] Id.

at 288 .

[157] See Ex

parte Elizondo , 947 S.W.2d 202 (Tex. Crim. App. 1996) (recantation of trial

testimony).

[158] Ex parte

Chavez , 213 S.W.3d 320, 322 (Tex. Crim. App. 2006).

[159] The Supreme

Court has suggested that the knowing use of A false @ testimony is treated the same as the knowing use of

perjured testimony. United States v.

Bagley , 473 U.S. 667, 678 , 679 n.8 (1985) (discussing Napue v. Illinois ,

360 U.S. 264 (1959)).

[160] Fierro ,

934 S.W.2d at 372 ns.2, 3.

[161] Tex. Penal Code ' 37.02(a).

[162] United

States v. Tavares , 93 F.3d 10, 14 (1 st Cir. 1996).

[163] United

States v. Carter , 566 F.2d 1265, 1270 (5 th Cir. 1978).

[164] It is at

least questionable whether Chu was a member of the prosecution team and

whether applicant lacked the opportunity

to discover the perjury at trial or in motion for new trial proceedings. Given our conclusion that there was no

perjury, we need not address these issues.

[165] 466 U.S.

668, 693 (1984) ( A [A] defendant need not show that counsel = s deficient conduct more likely than not altered the

outcome in the case . . . . The result of a proceeding can be rendered

unreliable, and hence the proceeding itself unfair, even if the errors of

counsel cannot be shown by a preponderance of the evidence to have determined

the outcome. @ ).

[166] 466 U.S. at

687 .

[167] Id.

[168] Id.

at 688 .

[169] Wiggins

v. Smith , 539 U.S. 510, 533 (2003) (internal quotation marks omitted).

[170] 958 S.W.2d

186, 194 (Tex. Crim. App. 1997).

[171] Id.

[172] 956 S.W.2d

532, 538-39 (Tex. Crim. App. 1997).

[173] Williams ,

958 S.W.2d at 193 n.8 (quoting United States v. Meriwether , 486 F

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