Pedder, David Clifford Jr.

I ~,160-o)

I A-\ oo) telfo . . PrQ

..Y/R 82,450- I'

I . EXPARTE

I ..... ·. ORANGE COU~'!):', TEXAS

I This document contains some

pages that are of poor quality

I at the time of imaging.

I

I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR WRIT OF

'

HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION

UNDER TEX. CODE CRIM. P. ART.11.07

I

I

I

I

I RECEijVED ~N

COURT OF CRIIVlii\J/41 APPEALS

I JUN 11 20 1 :..

I Ab@i ~©0~~, C~®rlk

I

I

.I

RYAN W. GERTZ

ATTORNEY AT LAW

BOARD CERTIFIED CRIMINAL LAWYER

TEXAS BOARD OF LEGAL SPECIALIZATION

THE GERTZ LAW FIRM

2630 Liberty, Beaumont, TX 77702

COPY l·· p: (409) 833-6400 f: (409) 833-6401

e: rgertz®gertzadair.com

June 16,2015

The Honorable

Judge ofthe

Orange C ty

801 W. I vision St.

, TX 77630

RE: David Pedder, Jr.- Memoranda in Support of Writ of Habeas Corpus

Dear Judge Arkeen,

Per your order, I have enclosed for filing a Memoranda in Support of our Writ of

Habeas Corpus, accompanying exhibits and a Proposed Findings of Fact and Conclusions

of Law. For your convenience, I have also provided you a flash drive containing a PDF of

the Memoranda, the Exhibits and a Word version ofthe Findings of Fact and Conclusions

of Law.

We will provide a courtesy copy of the Memoranda and the Exhibits to the District

Attorney, the Comi of Criminal Appeals and Bruce Smith.

If the comi has any questions, please let us know.

Thanks in advance for your consideration.

.__,.

. \

I

.I

I

I

I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR

WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY

CONVICTION UNDER TEX. CODE CRIM. P. ART. 11.07

I TO THE HONORABLE JUDGE OF SAID COURT:

I This application concerns a conviction from the 1281h District Court,

I Orange, Texas. The Cause Number was: Al00640-R. The Trial Judge was

the Honorable Courtney Arkeen. Applicant was represented at trial by

I Bruce Smith (SBOT: 18543300). Judgment was entered on May 18, 2012

I whereby Applicant was convicted of Aggravated Sexual Assault and

I sentenced to forty (40) years.

Applicant previously filed a pro se writ application to this Court, the

I Cause Number was No. WR-82,450-01. On January 14, 2015, the Court of

I Criminal Appeals, entered an order regarding evidence gathering. Applicant

\

I filed an Amended Writ on April 10, 2015. At the Court's direction and in

accordance with the Rules, Applicant hereby files his Memorandum in

I Support of the Writ and accompanying affidavits and exhibits along with a .

I proposed Findings of Fact and Conclusions of Law.

I

I

I

I

I

I

I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR

WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY

I CONVICTION UNDER TEX. CODE CRIM. P. ART. 11.07

I TO THE HONORABLE JUDGE OF SAID COURT:

I COMES NOW David Clifford Pedder, Jr., and files this Memorandum

in Support of First Amended Application for Writ of Habeas Corpus Under

I Tex. Code Crim. P. Art. 11.07, and in support thereof would respectfully

I show this Court as follows:

I I. WRIT

David Clifford Pedder, Jr. is illegally restrained of his liberty by the

I Texas Department of Criminal Justice pursuant to an order of cunviction in

I Orange County, Texas. This application seeks relief from that restraint in

I the form of a new trial or, alternatively, a grant of an acquittal by this Court.

Under Article 11.05 of the Texas Code of Criminal Procedure, this Court has

I the power to grant this Writ.

I

I 2

I

I

I

II. SUMMARY OF RELEVANT FACTS

I The alleged sexual assault occurred on a Saturday morning, May 15,

I 2010 at Baker's Transmission in Downtown Orange, Texas. 1

The

I Complaint testified that David drove her to work at Baker's Transmission on

Saturdays and the·y would arrive before everyone else.Z She further testified,

I on the day of the alleged assault, that they "were the first ones there" and

I - that the doors were not locked upon their arrival. 3 During cross-examination

I 4

she changed her story and testified that David had keys to the building. The

Complaint did not allege any other instance of sexual contact with David

I and did not allege any location other than Baker's Transmission.

I Furthermore, she described the location where the sexual encounter occurred

I as the floor of the "room with the rollout rug on it." 5 No physical evidence

of any kind was presented by the State. No DNA. No semen. No blood.

I And, no photos of the scene or location were presented to the jury by either

I side.

I To counter the State's case, trial counsel, Bruce Smith, could have

called more than a dozen potential witnesses who would have testified to the

I impossibility of the Complaint's claims. Specifically, those witnesses would

I I

2

RR 4, 11-12.

RR 4, 8-10.

I

3

RR 4, 9-10.

4

RR4, 26.

5

RR4, 12.

I 3

I

I

I

have testified that: David did not have keys or the alarm code to open

I Baker's Transmission on May 15, 2010 or anytime before, the Transmission

I shop was never open unless a Freeman family member was present, and

I numerous people observed him on Saturday mornings arrive before the shop

was open and sit outside and wait for someone with a key to arrive. 6 In fact,

I two different witnesses specifically recall seeing David sitting in his truck,

I on a Saturday morning in the Spring of 2010, with the Complaint waiting for

I the shop to open. 7 Every one of these witnesses now indicate, via their

attached affidavits, that Bruce Smith did not interview them, request their

I testimony, or contact them at all. 8 Additionally, the impossibility of the

I offense was explained to Detective Keaton but those conversations were not

I communicated to Bruce Smith nor reflected in Detective Keaton's report. 9

III. SUMMARY OF THE ARGUMENT

I Applicant was denied effective assistance of counsel in violation of

I the Sixth Amendment and clearly established federal law, specifically

I Strickland v. Washington, 10 as well as Texas law. 11 Bruce Smith failed to

adequately investigate the allegations, failed to preserve error relating to

I

I 6

7

8

See Exhibits I-L, N-W.

See Exhibits N & S.

See Exhibits J-L, N-W.

I

9

See Exhibits J, L, andY.

10

Stricklandv. Washington, 466 U.S. 668 (1984).

11

Ex Parte Patterson, 993 S.W.2d, 114, 115 (Tex. Crim. App. 1999).

I 4

I

I

I

pertinent procedural and evidentiary matters, failed to object to inadmissible

I evidence, failed to effectively present a readily available defense, and

I generally failed to render adequate legal assistance. The totality of the

I ineffectiveness by Bruce Smith directly caused the conviction and the

outcome of the case likely would have been different had Bruce Smith

I performed adequately at the guilt/innocence stage of the trial. Applicant was

I likewise denied effective assistance of counsel at punishment and his

I extremely harsh punishment was a logical result.

Additionally, Applicant is actually innocent of the crime for which he

I has been convicted and his punishment, therefore, violates the Eighth

I Amendment and the Fourteenth Amendment. Writs of habeas corpus are the

I proper vehicle for considering claims of actual innocence under federal and

state law. 12

I Finally, Applicant was denied a fair trial as a result of exculpatory

I information in the possession of law enforcement being withheld from the

I defense in violation of Brady v. Maryland.

13

I

I

I

12

Herrera v. Collins, 506 U.S. 390 (1993): Ex Parte Elizondo, 947 S.W.2d 202, 205

(Tex. Crim. App. 1996).

13

Brady v. Maryland, 373 U.S. 83 (1963).

I 5

I

I

I

IV. BRUCE SMITH'S RESPONSE TO COURT'S ORDER FOR

I AFFIDAVIT EXPLANATION

I On the Order of the District Court, Bruce Smith filed an affidavit

purportedly answering the queries posed by the Court relating to this Writ. 14

I

The Court Ordered Bruce Smith to respond to the following inquires:

I 1. Whether Trial counsel's performance was ineffective by failing to

investigate and interview six witnesses who could testify as to the

I impossibility of Applicant being able to gain entry into the

establishment where the Complaint claimed the sexual assault had

I taken place.

2. Whether Trial Counsel had a trial strategy for not calling said six

I witnesses to testify as to the impossibility of Applicant being able to

gain entry into the establishment where the Complaint claimed the

sexual assault had taken place.

I 3. What investigation Trial Counsel did in preparation for trial.

I 4. What evidence was obtained by Trial Counsel in response to any

discovery orders in the case or the District Attorney's open file policy.

I 5. Whether Trial Counsel had a trial strategy.

I

The affidavit filed by Bruce Smith did not adequately address the

I issues posed by the Court and to the extent that it did not, David Pedder

I objects to the Court regarding the record to be "silent" on those issues.

Bruce Smith had the opportunity to describe his strategy for failing to

I

investigate the myriad witnesses who would have described the impossibility

I 14

See Exhibit H.

I 6

I

I

I

of David accessing Baker's Transmission to commit the offense. Clearly he

I had none. 15 Courts have consistently found there is never a strategic reason

I not to adequately investigate a viable defense or interview important fact

I witnesses - though Bruce Smith did not attempt to announce one.

The extent of Bruce Smith's "investigation" appears to have been

I interviews with David and his fiance, reviewing the State's file, getting a

I polygraph exam for David, and preparing motions that he never filed. He

I alleges that he interviewed and had several conferences with Don Freeman,

owner of Baker's Transmission, but Freeman's affidavit indicates that Bruce

I Smith failed to talk with him or meet with him until the Friday before trial. 16

I As such, his alleged trial strategy of showing that the incident could not have

I happened because David did not have a key to Baker's Transmission was

not even a viable defense for him before his first conversation with Freeman

I 72 hours before trial.

I Noticeably, he did not indicate that he interviewed any of the otqer

I Freeman family members who run Baker's Transmission or any of the

regulars who go to Baker's every Saturday morning for coffee and

I socializing. 17 He also failed to indicate his strategy for doing so, and the

I

I 15

16

17

Id.

See Exhibit I, affidavit of Don Freeman, pg. 2.

See e.g. Exhibits N & 0.

I 7

I

I

I

Court should regard that as a lack of strategy rather than the record being

I silent on that issue.

I Finally, the most shocking revelation provided by the affidavit was

I the claim that "[Bruce Smith] prepared several pretrial motions on behalf of

Mr. Pedder that were ready to be filed at any time." It is bad enough that he

I actually filed no motions on David's behalf. Sadder still, however, is that a

I review of the motions he drafted indicates that Bruce Smith copied and

I pasted them from other cases 18 and that many of them were not even

relevant to David's case. For example, Bruce filed a Motion to Suppress

I Illegally Obtained Evidence; yet there was no physical evidence in the case,

I much less any indication that it was illegally obtained. This was merely a

I boiler-plate, irrelevant motion. When reading the motions, even a casual

observer can tell that the are not tailored to the facts and issues in David's

I case and would have served almost no purpose. His failure to file any of

I them though indicates how little attention Bruce Smith actually paid to this

I very senous case.

I

I

I 18

See Exhibit Z, Bruce Smith Motions, Motion To Suppress Illegally Obtained Evidence;

listing Kenneth Fuselier as his client.

I 8

I

I

I

V. LAW OF THE CASE AND APPLICATION TO THE FACTS AND

I RECORD

1. Ineffective Assistance of Counsel at Guilt/Innocence

I The Sixth Amendment, applicable to the States through the Fourteenth

I Amendment, guarantees citizens accused of a crime the right to counsel in

criminal prosecutions. 19 In the pioneering case Strickland v. Washington,

I the United States Supreme Court held the right to counsel means the right to

I effective assistance of counsel. 20 To prevail under Strickland, a petitioner

I must show that counsel's performance was both deficient and prejudicial. 21

Texas has adopted the Strickland test for State cases as wel1. 22

I To establish deficiency, the petitioner must show "counsel's

I representation fell below an objective standard of reasonableness." 23

I Evidence of prejudice is shown by establishing a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding

I would have been different." 24 A reasonable probability is one sufficient to

I undermine confidence in the outcome. 25

I The Fifth Circuit agrees. "A 'reasonable probability' need not be

proof by a preponderance that the result would have been different, but it

I 19

U.S.C.A. Const. Amend. VI; Gideon v. Wainright, 372 U.S. 335 (1963).

I

20

See generally: Strickland, 466 U.S. 668.

21

Id. at 687.

22

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

I

23

Strickland, 466 U.S. at 688; see also Ex Parte Patterson, 993 S.W.2d at 115.

24

Strickland, 466 at 694.

zs Id.

I 9

I

I

I

must be a showing 'sufficient to undermine confidence in the outcome. "' 26

I According to the Texas Court of Criminal Appeals, Strickland does not

I "require that the appellant show there would have been a different result if

. 27

I counsel's performance had not been deficient."

A. Failure to Perform Pre-trial Investigation

I Given that this issue relates to a fundamental constitutional right, the

I federal appellate courts provide great insight into what constitutes a

I sufficient investigation and whether harm results. Significant to this case, the

Fifth Circuit has addressed failure to investigate valuable witnesses and

I found it to lie outside the bounds of strategy. In Bryant v. Scott, the court

I overturned a denial of habeas relief in an armed robbery case because

I counsel failed to interview eyewitnesses and an alibi witness. 28 In finding

counsel ineffective, the court reasoned that choosing not to interview

I witnesses cannot be a contemplated strategy. 29

I The Fifth Circuit in Bryant, overturned a district court's denial of

I habeas relief from a state armed robbery conviction because counsel failed

I to interview two eyewitnesses, an alibi witness, and "restricted his pretrial

I

26

Williams v. Cain, 125 F.3d 269,279 (5thCir.1997) (quoting Strickland, 466 U.S. at

694).

27

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Court Crim. App. 2005) (citing Strickland,

I 466 U.S. at 694).

28

29

28 F.3d 1411 (5th Cir. 1994).

Jd. at 1419.

I 10

I

I

I

investigation to discussions with [the defendant], review of the indictment

I against [the defendant], and examination of the prosecutor's file." 30 The

I court concluded that "information relevant to [the] defense might have been

I obtained through better pretrial investigation of the eyewitnesses, and a

reasonable lawyer would have made some effort to investigate the

I eyewitnesses' testimony." 31 Interestingly, the "investigation" in Bryant

I reads almost like Bruce Smith's purported investigation in this case.

I The Fifth Circuit expressly rejected the notion that "vigorous" cross-

I examination of witnesses at trial can "cure" counsel's failure to interview

witnesses before trial. The panel pointed out that effective cross-examination

I

"does not necessarily indicate that a reasonable lawyer, viewing the trial ex

I ante, would have regarded an interview of the eyewitnesses as

I unnecessary. " 32 The Court also noted that even if cross-examination were

effective, "that is not to say it could not have been improved by prior

I

investigation." 33 The same is certainly true in this case.

I

Further, the Fifth Circuit rejected the argument that a failure to

I interview witnesses is excusable as "a strategic decision" if the witnesses

I 30

Bryant, 28 F.3d at 1418.

I 31

32

!d.

!d. at 1419.

33 !d.

I 11

I

I

I

would not have been credible. 34 Acknowledging that a lack of credibility

I might support a strategic decision not to call a witness to testify at trial, the

I court explained that a witness's character ·flaws cannot support a failure

I to investigate. 35 Without contacting a witness, much less speaking with him,

counsel is "ill-equipped to assess his credibility or persuasiveness as a

I witness. " 36

I In Soffar v. Dretke, the court found counsel ineffective because he

I failed to interview and investigate the only known eyewitness to the crime. 37

I · There, the eyewitness could describe the gunman but was unable to identify

the accused in a photo lineup. 38 Citing Strickland, the court noted that the

I petitioner is not required to prove his innocence or demonstrate that

I counsel's deficiencies altered the outcome in the case by a preponderance of

I evidence. 39 Rather, the petitioner need only show that had defense counsel

conducted an adequate pretrial investigation, there is a reasonable

I probability that the jury's verdict would have been different. 40 Like in Soffar

I and Bryant, Bruce Smith's investigation in this case was deficient and there

I 34

35

!d.

!d.

I 36

!d.; see also Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) (holding that

counsel's failure to investigate an eyewitness constituted deficient performance).

37

Soffar v. Dretke, 368 F.3d. 441, 478 (5th Cir. 2004).

I 38

39

40

!d. at 475.

Soffar, 368 F.3d at 479.

!d. (citing Strickland 466 U.S. at 694).

I 12

I

I

I

is a reasonable probability that a thorough investigation would have altered

I the jury's verdict. The shortcomings in his investigation and the myriad

I witnesses who would have testified on David's behalf should certainly

I undermine this Court's confidence in the conviction.

I In this case, Bruce Smith did no real pre-trial investigation. In fact, at

the Motion for New Trial hearing held within months of the guilt/innocence

I trial, he could not recall whether he even looked at the DA's file. 41

I Obviously he did not interview pertinent witnesses provided to him by

I David (which will be detailed infra), he did not visit the scene (also

addressed infra), and he did not interview or speak with any of the

I

investigators in law enforcement. The affidavit submitted to the Court

I describing what he did conspicuously omits any of these obvious tasks. 42

I His lack of preparation alone - for a first degree felony trial - should be

I sufficient to meet both prongs of Strickland based on evidence that has come

to light after the trial.

I

Moreover, though, given the reputation of the Orange County District

I Attorney's Office for being dedicated to a just outcome and not merely

I obtaining convictions, a thorough investigation by Bruce Smith might have

I 41

42

RR 7, 5.

See Exhibit H.

I 13

I

I

I

provided him an opportunity to present the exculpatory evidence to the State

I and avoid the risk of a trial altogether. While not doing so might make

I strategic sense in Harris or Dallas counties, it makes no sense in Orange

I, County. Absent a thorough investigation, though, there would be no way for

Counsel to know of evidence - much less present it to the State - that might

I change the State's position on proceeding to trial in a first degree felony

I case.

I What should have happened is simple: Bruce Smith should have

I obtained affidavits or witness statements from the people who have provided

them in this proceeding as they show the practical impossibility of the

I Complaint's claims. 43 He should have visited the scene and taken pictures

I of location of the alleged sexual encounter to show the illogicality of the

I Complaint's story. 44 He should have brought those items to the District

Attorney, along with the report of polygraph examiner John Swartz, 45 in an

I

effort to have the charges dropped. Then, if that did not work, Bruce Smith

I would have been thoroughly prepared to present a persuasive case to the

I JUry.

I

I

43

See Exhibits I-L, N-W, AA-BB.

44

See Exhibits A-E. '

45

See Exhibit G.

I 14

I

I

I

Instead, he appeared to be viewing the Complaint's statement for the

I first time in the midst of his cross-examination of her. 46 Worse still, he

t· attempted to cross-examine the Complaint about the lay-out of the building,

I but he did not have photos or a diagram for the demonstration and ultimately

lost the point that her story makes no sense. 47 In fact, he had never been to

I the building until the trial was underway. 48 And he never interviewed the

I key witnesses who could have exonerated David. 49 Additionally, during one

I exchange about who the outcry witness would be, Bruce Smith made clear

that he had not reviewed any of the statements made by the witnesses as he

I ~isunderstood whether Sheryl Pedder had even spoken with the Complaint

I. about the allegations. 50

I B. Counsel Not Prepared for Trial, but Failed to Preserve Error

I Bruce Smith evidently expressed to the Court that he was not ready to

I proceed with trial. However, he did not properly preserve potential error on

I that point. Courts who force a defendant to trial when counsel is unprepared

do so at their peril. But, lawyers who fail to preserve this easily reversible

I

I 46

47

RR 4, 29.

RR 4, 32-34; see Exhibit M, diagram of Baker's Transmission.

I

48

See Exhibit I, pg. 2.

49

See Exhibits J-L, N-W, AA-BB.

50

RR 3, 34.

I 15

I

I

,.

error are patently ineffective. 51 Bruce Smith failed to did so and the result

I was an inept defense against an extremely serious charge.

I C. Counsel Failed to Give Opening Stat~ment Before OR After State's,.

I Case

Experts universally find that jurors make up their minds early in a

I~

case about how they are going to vote. In fact, Dr. Donald Vinson - a

I renowned jury consultant- notes: "In all of our work as behavioral scientists

I involving pre-trial groups analysis, trial simulations, and post trial

interviews, we have reached the conclusion that 80 to 90 percent of all jurors

I~ come to a decision during or immediately after the opening statements." He

I goes on to write: "if you have not hooked your jurors early, it may be hard to

persuade them later. " 52

I

I Bruce Smith chose not to give an opening statement either before or

after the State's case in chief. 53 This omission is particularly damaging in a

I case where the nature of the charge likely has jurors' hackles up before

I hearing any evidence. It would have been a prime opportunity for Bruce

I

I

51

See e.g. Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) (counsel

consistently objects to trial proceeding as he is not ready, Court of Criminal Appeals

reverses trial judge for proceeding regardless).

I

52

How to Persuade Jurors, Dr. Donald Vinson; ABA Journal The Lawyers Magazine,

2014. See http://www.vinsoncompany.com/pdf/How to Persuade Jurors.pdf.

53

RR 3, 10; RR 4, 40, 47.

I 16

I

I

I

Smith to frame the case in a way that impacted the outcome. And, it would

I not need to be long or complicated.

I For example, he could have opened with: "The facts in this case boil

~I down to one key piece of evidence: David Pedder did not have access to the

I building where Alahna says this crime occurred, when she says it occurred.

David didn't have a key to Baker's Transmission so he could not have been

I alone with Alahna to have sex with her on May 15, 2010. When listening to

I the evidence, nothing else matters except for the fact that the State's version

I of events is impossible."

I Of course, making such an openmg statement would reqmre trial

I preparation - interviewing witnesses, understanding the statements made by

the Complaint, understanding the shortcomings of the State's witness

I statements, and visiting the scene of the offense. Bruce Smith did none of

I these things, 54 so the lack of an opening statement prior to the evidence can

I be explained, not by strategy, but by lack of preparedness. Again, Bruce

Smith was asked by the Court to detail his trial strategy (the lack of an

I opening was raised by the Writ) and he provided none.

I

,, 54

The best evidence of this is his own Affidavit, Exhibit H, but its also seen throughout

the trial testimony and presentation.

I, 17

I

While some courts have found that there may be a strategic reason for

waiving opening prior to the State's case, there is no conceivable strategic

reason to waive it after the State has rested. In this case, though, the

resulting harm was that a full day of testimony was presented and none of

the jurors had heard anything of value from the accused. As a practical

result, the jury had a significant amount of time to formulate an opinion as to

David's guilt before hearing anything from the Defense. That is

diametrically opposite of the approach outlined by Dr. Vinson and Bruce

Smith offers no strategic reason for failing to provide an opening statement.

D. Bruce Smith Failed to Adequately Cross-Examine Witnesses

Bruce Smith also failed to adequately cross-examme any of the

witnesses. In fact, the record reflects only-15 pages of cross examination on

Day 1 of trial (out of 129 total pages) despite the State calling seven

witnesses. 55 Most glaringly, though, Bruce Smith provided no cross

examination of the State's SANE nurse expert witness and an extremely

limited cross-examination of the chief investigator in the case.

One line of cross-examination that was not raised was the physical

evidence in support of the Complaint's claims: there was none. If the facts

55

See generally RR 3.

18

I

I were as the Complaint alleged to the investigators and the SANE nurse, why

I was there no physical evidence gathered from the girl or from Baker's

I.

,,

Transmission? Particularly, if this truly were her first time to have sex, 56 it

happened on the rollout rug, 57 and David ejaculated on the carpet, 58 there

should have been evidence gathered for the purposes of DNA analysis. It

I would not have been hard to obtain.

I Yet, Bruce Smith failed to cross examine Detective Keaton about the

I lack of blood or semen evidence that a thorough investigator would have

I· obtained. The State alone is required to prove its case beyond a reasonable

doubt. This line of cross-examination would have provided a great avenue

I for demonstrating the State's complete reliance on the word of a twelve year

I old. There is no strategic rationale for avoiding this line of questioning. It

I. merely reflects poor performance and preparation.

I E. Counsel Failed to Present Witnesses to Show Impossibility of

Complaint's Story

I Bruce Smith did not present the witnesses described in the attached

I' affidavits, who could have shown the impossibility of the Complaint's story.

I.

I. 56

57

58

See Det. Keaton Supplemental Narrative, Exhibit Y, pg. 6.

See RR 4, 12 & 26.

See SANE Nurse Report, Exhibit X, 3.

I 19

I

I

f·

interviewed by Bruce Smith. 62 Some highlights include the testimony of

I. Beverly, Jeff, and Greg Freeman who all agree that David did not have a key

I to the shop on May 15th or before. 63 In fact, .they all would have testified

1: that they had a meeting and agreed to give a key to David after June 2nd,

once the allegations had arisen and he was being harassed. 64

-I

1\ Other witnesses, Gerald Thomas and Quincy Procell, specifically

remember seeing David sitting outside the shop in his truck with the

I Complaint in the Spring of 2010 because he was waiting for a Freeman to

I arrive with the key. 65 Randy Becker, a Saturday regular at Baker's

.Transmission - for coffee and drag racing talk - recalls years of finding

I David sitting out· front of the shop on Saturdays waiting for a Freeman to

1: arrive because "we had no way to get in."66 Don Freeman's brother in law,

I~ Larry Haywood, worked for and lived with the Freemans for four years, yet

he would have testified that he was never given a key to the shop." 67

I David's grandfather, Leonard Hutton, who was never contacted by Bruce

,

I Smith, would have testified that he would go by Baker's Transmission shop

I.

., on Saturdays and "Dave would be waiting on Don Freeman, the owner to

62

63

See Exhibits J-L, N-W, AA-BB.

See Exhibits J, K, & L.

64 !d.

65

I 66

67

See Exhibits N & S.

See Exhibit 0.

See Exhibit P.

I 21

I

I

I

arrive."68 More specifically, he would note, David did not have a key to the

I \

building. 69 David's daughter Latisa agrees, stating "he didn't have the keys

I to the shop, we had to wait on his boss to arrive to open the doors to the

shop." 70

I

I Of most particular interest to the defense, however, would have been

the testimony of witnesses who are not close to or friends with David. For

I' example, a businessman from Louisiana named Dan Weaver. Dan's

I company uses Baker's Transmission for repairs and has arrived earlier than

I the shop opened for appointments. Weaver indicates "Don was always the

person who had to unlock the door and I would wait to enter the building

I until after Don had deactivated the building's alarm." 71 Eric Wolfford, who

I, works on the vehicles for the city of Orange, who would have testified that

I one or more family members is always at the shop when the doors are

open. 72

1:·

.1 1

Kenny Pigg provides another example. In his affidavit Pigg writes: "I

have been by Baker's Transmission on many occasions. I have been by

I when they were closed and when they were opened. In all the years that I

I· 68

69

See Exhibit Q.

See Exhibit Q.

70

I~

See Exhibit U.

71

See Exhibit T.

72

See Exhibit BB.

I: 22

.I

,,

,,

have been doing business and friends with this group, I have never been by

.I' there when the shop was opened without one of the family members being

f) present." 73 Likewise, Leroy Perkins, who hauls scrap metal from Baker's on

,,

I~ a regular basis, indicates: "I have never been by the shop during business

hours when there was not at least on family member present and there was

almost always more than one family member present." 74 He continues: "I

I'·

,, have also been to Baker's Transmission on several occasiOns, m the

morning, when there were employees in the parking lot waiting for waiting

for Don Freeman or one of the family members to come and open the

I business." 75

I· Even the Orange County Sherriff, Keith Merritt, provided an affidavit,

II albeit under subpoena from Writ Counsel, indicating the same testimony as

I

,, all the others: only the Freeman family members had keys to the Baker's

Transmission shop. 76 Plus, the Sherriff adds: "I have never been by the shop

and seen it open and only Dave there." 77 And another prominent citizen, Dr .

.I· Robert Marroquin, would have told jurors: "It is my firm belief that unless

I

I 73

74

See Exhibit V.

See Exhibit AA.

75 !d.

I 76

See Exhibit W.

77 !d.

I 23

-a

I·

I

there is a Freeman family member present, the business IS closed and

I locked." 78

I According to Bruce Smith's affidavit for this Writ, his strategy in this

I case boiled down to the fact that David did not have a key to the building. 79

·I Yet, he failed to call numerous available witnesses to make the point. And,

if that were not enough, he bungled his· attempt to implement his lone trial

I strategy.

I

F. Counsel's Bungled his Only Attempt at Presenting Exculpatory

.I Evidence

1\ The Complaint testified at trial that when she and David arrived at

Baker's Transmission, the door to the business was open and yet no one was

I there. 80 This is a patently ridiculous claim - given the location of the

I business and the value of its contents of the shop - and it could have easily

been refuted by the Freeman family and a variety of other witnesses. Bruce

I Smith failed to interview or call any of them. For example, Greg Freeman

I indicates that "we have never left the doors to our building unlocked

I

I

78

I 79

80

See Exhibit CC.

See Exhibit H.

RR 4, 8-10.

I 24

'I

I

I·

overnight as we have hundreds of thousands of dollars worth of equipment,

I tools, and vehicles in our facility." 81

I Instead of taking advantage of this massive defect in her testimony,

I however, Bruce Smith fumbled the opportunity. She had testified that the

'I doors were simply open; but Bruce Smith chose to correct her and encourage

her to change her story and say that David had a key rather than the door

I simply being left open overnight. 82 This, of course, is where the lack of

~~~

preparation bears its poisonous fruit.

I In the wake of the allegations, William "BJ" Bishop and other family

·t members of the Complaint began harassing David at his home and place of

I work. So much so that the Freeman family had a meeting and decided to

give David a key and the alarm code so he could hide out there rather than

1: endure continued harassment at his home. 83 The Freeman's could have

I testified that they clearly remember when they gave him a key because it

I was right after they called the police on BJ Bishop for threatening them at

the shop. 84 That was weeks after the alleged incident would have occurred.

I As such, he could have made clear from evidence that David did not have a

I 81

See Exhibit K.

I, 82

83

RR 4, 26.

See Affidavits of Freeman family, Exhibits I-L.

84

See Exhibit F, Police Report.

I 25

'I

key on May 15, 2010. Frankly, though, given the nature and date of the

allegations, the fact that David got a key after the allegations arose should

not have been admissible under Texas Rule of Evidence 402 (in that it does

not make a fact at issue more or less probable) and under Rule 403 (that it is

unfairly prejudicial and that prejudice outweighs its probative value - which

is none).

Bruce Smith only presented Don Freeman to try to make this point

and he did so clumsily. His line of questioning with Freeman actually

diminished the defense and then opened the door to damaging and irrelevant

evidence. In fact, right off the bat, Bruce Smith asked Freeman: "did you

give [David] keys to the business?" and he answered affirmatively. 85 Bruce

Smith went on to try to fix the damage by asking when the key was given

and about May 15th, but the damage was done. Certainly there were jurors

who heard that David had a key and the whole defense went right out the

window for them.

Had he been prepared properly, the proper line of questioning would

never have even addressed giving him a key after May 15th, because that was

not relevant. The only material question was whether or not David had a

85

RR4, 49.

26

I

I

key on May 15th. It is reasonably probable that some or all of the jurors

I· heard that David had a key and did not listen to the rest of the questions

I relating to the key.

I Further, though, by only calling one witness to make the point, Bruce

I Smith limited the value of the point. An effective attorney would have

brought in a parade of witnesses to illustrate the importance of the key rather

~~

than hoping jurors heard it the one time it was asked during a two day trial. 86

I Had three other family members, two witnesses who had seen David with

I the Complaint waiting to enter the shop on a Saturday, and a parade of

regulars been called to the stand, the landscape of the testimony would have

I been dramatically different. 87

I

Additionally, however, by. bungling the direct examination and

I bringing up aQ the information about why David obtained a key in· June,

I Bruce inadvertently opened the door to !1 host of damaging information

about David's suicide attempts and the letters he left. 88 While the letters

I

themselves are not of particular harm, the whole suicide conversation

I,

deviates from the key point Bruce Smith should have been trying to make:

I that David did not have' a key on May 15, 2010.

86

I 87

88

See Exhibits J-L, N-W.

See Exhibits J-L, N-W.

RR4, 63.

I 27

I··

I

I ~

G. Counsel Failed to Object to an Array of "Outcry" Testimony

I

Bruce Smith did not file or preserve the proper objections under

I Crawford or Texas Code of Criminal Procedure 38.072 to prevent testimony

I that was obviously inadmissible. The Texas Rules of Evidence limit the

I admissibility of hearsay unless it falls into one of the exceptions in Rules of

Evidence 803 or 804, or it is specifically allowed "by other rules prescribed

I pursuant to statutory authority." 89 One of these "other rules" is Article

I 38.072 of the Code of Criminal Procedure. When a defendant is charged

I with certain offenses against a child under the age of 14 or a disabled

individual, Article 38.072 allows evidence of the Complaint's out-of-court

I

statement so long as that statement is a description of the offense and it is

I offered into evidence by the first adult the Complaint told of the offense. 90

I Though the terms do not appear in the statute, the victim's out-of-court

statement is commonly known as an "outcry," and an adult who testifies

I

about the outcry is commonly known as an "outcry witness." Only one

outcry witness may testify per single alleged event. 91

I Article 38.072 has additional requirements that must be met before an

I outcry witness may testify. At least 14 days before the trial on the merits

89

I 90

Tex. R. Evid. 802

Tex. Code Crim. P. Article 38.072.

91 Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim App. 2011).

I 28

I

I

I

begins, the State must notify the defendant of its intention to call an outcry

I witness, who must be identified. The State must provide a summary of the

/

I 92

outcry statement that will be offered into evidence. Outside the presence of

I the jury, the trial court must hold a hearing to determine, "based on the time,

content, and circumstances of the statement" whether the complainant's out-

I of-court statement is "reliable." 93 Finally, the complainant must either

I testify, or be available to testify, "at the proceeding in court or in any other

I manner provided by law."94

I Bruce Smith did not file a motion to limit hearsay recitations of the

events, did not make the State follow these rules, and, as a result, a plethora

I

of hearsay evidence regarding the Complaint's claims was admitted into

I evidence. For example, Officer Cowart was not the outcry witness, but his

I testimony about what the Complaint said was admitted without objection. 95

Then, when Bruce Smith finally realized what was happening, the Court

I

asked counsel to approach and the State seemed to elect Cowart as their

I outcry witness. 96 But later, when Bailey Chaloupka testified, Bruce Smith

I failed to object to her hearsay recitation even though Cowart had already

I 92

93

Tex. Code Crim Proc. art. 38.072 § 2(b)(l).

!d., at § 2(b )(2).

I

94

!d., at§ 2(b)(3).

95

RR 3, 30.

96

RR 3, 34.

I 29

I

I

I

expressed the outcry testimony. 97 Similar hearsay testimony from the SANE

I nurse was likewise admitted without objection. 98

I Additionally, Bailey's testimony appears to be driven by a hearsay

I statement that David confessed to Sheryl Pedder that he molested the

I Complaint. 99 It is of paramount importance to this case that David never

confessed and that Sheryl never testified that. he did. In fact just the

I opposite. 100 Regardless, this outrageously damaging hearsay statement went

I without objection from Bruce Smith.

I Regardless of the exchange with the Court and the State, the

I shortcoming of Bruce Smith's representation was his failure to file the

I motions in advance and force the State to elect a witness and specify what

their testimony would be. This serves no strategic purpose. In fact, it only

I serves a key goal of the State: to bolster the testimony of their Complaint

I when they have no physical evidence to support their case.

I

I

I 97

98

RR 3, 122-124.

RR4, 39.

99

I 100

RR 3, 122.

See RR 3, 92; Sheryl testifying that David denies anything happening with the

Complaint- not admitting it.

I 30

I

I

I

H. Bruce Smith Failed to Present Photographic and Demonstrative

I Evidence

Bruce Smith failed to present photographic exhibits of the scene and,

I according to the Freemans, never contacted them or visited Baker

I Transmission prior to trial. 101 Such evidence would have demonstrated the

I Complaint's story was far-fetched at best. The photos in Exhibit A illustrate

that the business is locked with a deadbolt on both sides of the entrance, that

I there is an alarm system connected to the door, and that the alarm has

I motion detection. The photos in Exhibit B show where the Complaint

I alleges the incident occurred. By showing the jury the "rug" she describes,

and the surrounding area, Bruce Smith could have shown the jury that its an

I

unwieldy, awkward, and unclean place to lay down on the floor and have

I sex. 102 Additionally, though, Exhibit C illustrates the other key shortcoming

I of the Complaint's story: the entire area she describes is surrounded by

glass. Exhibits C-1 and C-2 show the see-thru bay doors, that look directly

I

into the double glass doors of the "building room" shown in Exhibit C-4,

I and the window right over the "rug" can be seen in B-4. In other words,

I they show that the location the Complaint alleges is not obscured from the

view of someone outside the shop or in the bay area. The diagram of the

I

I 101

102

See Exhibits I-L.

See Exhibit B-2, B-3.

I 31

I

I

I

building in Exhibit M would have provided context for these arguments as

I well. Armed with the photos and the diagram, Bruce Smith could have

I efficiently and effectively chipped away at the believability of the

I Complaint's story. He failed to do so.

I Furthermore, adding to the failure, Exhibit D photos illustrate the

office at Baker's. The office has a couch, no tools or grease, and tinted

I windows that one can see out of but not into. 103 Bruce Smith could have

I used those photos to show that, had David wanted to have sex with someone

I at Baker's, the office would have been the obvious place to do it. It would

improve the comfort and cleanliness of the situation all the while making it

I

less likely to get caught. A thorough investigation and preparation might

I have allowed Bruce Smith to avail himself of such an argument, but he did

I not perform such an investigation.

I I. Bruce Smith Failed to File Pre-trial Motions in Limine or Notice

Demands Regarding 404(b) Evidence

I Bruce Smith failed to file a request under Rule 404(b) to determine

I other crimes, wrongs, or acts the State was intending to use at trial. He also

I failed to file a motion in limine to limit character evidence, irrelevant

evidence, and prejudicial evidence that should have been foreseeable based

I 103

See Exhibit I.

I 32

I

I

I

on the statements of the State's witnesses. And, as a result, the State

I presented damaging character evidence and hearsay that was not objected to.

I . Had Bruce Smith been prepared and done a thorough investigation, he

I would have filed motions in limine under Texas Rules of Evidence 402, 403,

and 404(b) regarding a great deal of the State's evidence. He did not.

I

Instead, the jury heard (without objection) evidence about David

I asking out his neighbors wife, 104 that his wife Sheryl called him a child

I molester, 105

that Detective Keaton was able to determine David's

I truthfulness based on his demeanor, 106 that William Bishop - in contrast -

seemed truthful in his denials, 107 evidence about David's suicide attempts, 108

I

conversations between Sheryl Pedder and Detective Keaton, 109 and the

I hearsay allegation that David might have had and deleted nude pictures of

I the Complaint on his phone. 110 While perhaps not individually devastating,

taken as a whole these evidentiary oversights clearly jaundiced the jurors

I

I

I 104

105

106

RR 3, 14.

RR 3, 17 (Officer Cobb) & RR 3, 26 (Officer Cowart).

RR 3, 53-54.

I

107

RR 3, 54-55.

108

See generally RR 3, 56-59; and specifically on 56: hearsay statement "Mrs. Pedder

had stated that she thought that David Pedder was suicidal and that he had left some

I notes."

109

110

RR 3, 69-70.

RR 3, 112.

I 33

I

I

I

eyes against David. When Bruce Smith failed to put on an effective defense,

I these failures virtually guaranteed a conviction.

I J. Conclusion

I

Bruce Smith's performance clearly meets the first prong of Strickland

I given the totality of the ineffectiveness of his representation of David

I Pedder. But, given that Counsel's unpreparedness was directly correlated to

I significant damaging evidence being admitted while presenting limited

exculpatory evidence, the outcome of the case likely would have been

I different had David had effective counsel. All together though, the errors

I and omissions by counsel - when viewed in light of the defense available to

I him - must undermine confidence in the verdict. As such, at the very least,

justice requires a new trial for David Pedder.

I

2. Ineffective Assistance at Punishment

I

In Wiggins v. Smith, the U.S. Supreme Court held that counsel "fell

I

short of ... professional standards" for not expanding pre-trial investigation .

I beyond the presentence report and one set of records they obtained,

I particularly "in light of what counsel actually discovered" in the

I

I 34

I

I

I

records. 111 More recently, in Porter v. McCollum, the United States

I Supreme Court found a defendant received ineffective assistance of counsel

I where trial counsel did not even take the first step of interviewing witnesses

I or requesting records pertinent to the defendant's background, mental

history, military service and other mitigating factors. 112 Beyond that, like

I in Wiggins, trial counsel in Porter ignored pertinent avenues for

I investigation of which he should have been aware. 113 The deficiency of

I counsel was glaring given the facts and the Court found the state court's

conclusion that the outcome of the case would not have been different had

I the- information been revealed "objectively unreasonable." 114

I Even with a month to prepare and knowing that the punishment range

I was 5-99 or life, Bruce Smith put on virtually no mitigation evidence of

(

I value at the sentencing phase. Had Bruce Smith prepared in the least for t~e

sentencing hearing, evidence available now indicates he might have put on a

I

persuasive case for a dramatically lower sentence than the forty years given

I him by the Court.

I

I Ill 539 U.S. 510,524,525 (2003)

112

558 u.s. 30 (2009).

I 113

114

Porter, 558 U.S. at 40.

Id. at 30.

I 35

I

I

I

Mitigation cases typically take two forms: either the convicted person

I has had substantial hardship in his life and the Court should consider that as

I a reason to reduce his sentence or the person is otherwise an exemplary

I citizen and the incident was an isolated error in judgment or not consistent

with his character. The latter form can be done while meekly disagreeing

I with the jurors' verdict. On the other hand, one way to virtually guarantee a

I substantial sentence is to attempt to re-try guilt/innocence at the punishment

I phase. That is precisely what Bruce Smith did here.

I The record indicates all of his witnesses were called to re-hash the

impossibility of the crime - an effort that Bruce Smith failed to effectively

I undertake at guilt/innocence. Remarkably, though, Bruce Smith had

I information at his fingertips that would have addressed either of the effective

I mechanisms for mitigation in punishment; and possibly both.

I David Pedder had a difficult life growing up. 115 His father was killed

when he was very young by his mother's boyfriend. 116 As a result, David

I

was forced to move in with his grandfather who was a grave digger.

I According to Don Freeman, those experiences had a significant and negative

I 115

While witnesses could have been called to detail this, Smith, at least, should have been

I aware of these issues because a number of them were reflected in the Court's Pre-

Sentence Report made a part of the record.

116

See Exhibit I, Freeman Affidavit, pg. 5.

I 36

I

I

impact of David's up bringing. 117 In addition to that, the financial impacts of

I his family life required him to quit school at age sixteen and go to work. He

I has also battled depression his whole life and had a wife who committed

suicide. 118

I

I Other witnesses would have testified to David's positive qualities in

an effort at mitigation. For example, Beverly Freeman writes: "I love Dave.

I He was my favorite of all our employees that we have had. He is quiet, soft-

I spoken, and got along really well with all ofus." 119 Another past employer,

I Kirby Procell, describes David as "reliable, productive, and honest." 120

Kirby's brother Quincy Procell calls David "the best and most qualified

I mechanic that ever worked for me." 121

I

This type of testimony would have put a human face on a person

I convicted by the jury of a very serious crime. Bruce Smith failed to

I investigate these avenues and certainly failed to present the testimony to the

I Court. The decision to do so could not possibly be considered within the

bounds of strategy- such a conclusion is "objectively unreasonabl~" 122 - but

I

117

I 118

119

See Exhibit I, Freeman Affidavit, pg. 5.

$ee Exhibit I, Freeman Affidavit, pg. 5.

See Exhibit J, Beverly Freeman Affidavit, pg. 1.

120

I 121

122

See Exhibit R.

See ExhibitS.

Porter, 558 U.S. at 30.

I 37

I

I

I

also likely would have impacted the Court's decision making as to

I punishment. While David maintains his innocence and believes effective

I counsel would have altered the outcome at guilt/innocence, Bruce Smith's

I failings at punishment are likewise unjust and David ought to be entitled to a

new trial or, at the absolute least, different sentence.

I

3. Actual Innocence

I

Applicant would submit to the Court that the evidence reflected in the

I

attached affidavits, coupled with the lack of physical evidence to support the

I allegations, indicate that the crime alleged did not occur. As such, David

I would ask the Court to rule in his favor under Herrera and Ex Parte

Collins. 123 Herrera claims involve a bare-bones claim of actual innocence.

I

To prevail, David must show by clear and convincing evidence that, despite

I the evidence of guilt that supports the conviction, no reasonable juror could

I have found the applicant guilty in light of the new evidence. 124 While

I difficult, the overwhelming evidence of impossibility and the illogicality of

the Complainant's story, when paired with the lack of physical evidence

I warrant relief under Herrera.

I

123

I Herrera v. Collins, 506 U.S. 390 (1993): Ex Parte Elizondo, 947 S.W.2d 202, 205

(Tex. Crim.App. 1996).

124

Ex parte Tuley, 109 S.W.3d 388, 392 (Tex.Crim.App. 2002).

I 38

I

I

I

4. The State had Exculpatory Evidence in its Possession that it

I Withheld in Violation of Brady

I Detective Keaton was the lead investigator in this case. He

I interviewed Don, Beverly, Jeff, and Greg Freeman at the Baker's

Transmission shop. 125 His report, however, which was part of the DA's file,

does not reflect those interviews. 126 Instead, it merely indicates a meeting

with Don Freeman - not his wife or sons. 127 Moreover, though, it does not

indicate that the Freemans' s disputed the notion of the doors being left

unlocked, 128 that Freemans's disputed the notion that Don was late for work

I on a Saturday, 129 that David was always early to work and did not have a

I key, 130 or that anyone had ever seeh the Complaint and David together in the

I shop before anyone arrived. 131 How could an experienced Detective fail to

ask the question of these four: "have you ever arrived at the shop and found

I David and the Complaint already inside?" Someone wanting to do justice

I

I 125

See Exhibits I-L.

I

26

I See Exhibit Y.

127 !d.

128

See Exhibit J, Beverly Freeman's affidavit ("we never leave our doors unlocked.and

I no one else can open them.").

I

29

130

See Exhibit J, K, & L.

See Exhibit K, Greg Freeman's affidavit ("On several occasions I cam to the shop on

I Saturday to work on my race car and Dave and [the Complaint] were in Dave's truck

waiting for someone to open up.").

3

I I See Exhibit Y.

I 39

I

I

I

and get the truth asks the right questions and takes careful notes of and

I reports the answers. Detective Keaton did neither.

I The United States Supreme Court's landmark decision in Brady v.

I Maryland, addressed the issue of the State suppression of evidence favorable

I to the defense. The Court held "that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where

I the evidence is material either to guilt or to punishment, irrespective of the

I good faith or bad faith of the prosecution." 132 To establish a claim

I under Brady, a habeas applicant must demonstrate that:

I (1) the State failed to disclose evidence, regardless of the

prosecution's good or bad faith;

I (2) the withheld evidence is favorable to him; [and]

I (3) the evidence is material, that is, there is a reasonable probability

that had the evidence been disclosed, the outcome of the trial would

I have been different. 133

I An Applicant must initially show that the State failed to disclose

I evidence "which had been known to the prosecution but unknown to the

defense." 134 Even if the prosecutor was not personally aware of the

I

I

132

Brady, 373 U.S. at 87.

133

Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002).

134

United States v. Agurs, 427 U.S. 97, 103 (1976).

I 40

I

I

I

evidence, the State is not relieved of its duty to disclose because "the State"

I includes, in addition to the prosecutor, other lawyers and employees in his

I office and members of law enforcement connected to the investigation and

prosecution of the case. 135

I

Here it appears that Detective Keaton selectively included items in his

I "\

report relating to his interview with the Freemans. In fact, it appears he

I either did not ask or did not care whether David had a key, the alarm code,

I or other means of entering the shop with no one else present. That would be

a critical piece of information. He also did not search the scene to determine

I ' if physical evidence were present.

I He certainly did not include the fact that Greg, Jeff, and Beverly were

I all present and answered questions related to the allegations. Yet each of

their affidavits make clear that they would have provided favorable evidence

I to David's defense. Yet, after speaking with them, he failed to even note

I they were present, much less indicate what they said.

I If it becomes the State's position that Bruce Smith failed to properly

request the Brady material, that would be another failure indicating the

I

I

I 135

Kyles v. Whitley, 514 U.S. 419,437 (1995); Ex parte Reed, 271 S.W.3d 698,726 (Tex.

Crim.App.2008).

I 41

I

I

I

ineffectiveness of the counsel David received. For that reason, amongst the

I many others, David should receive a new trial.

I If the State were to contend, however, that this information should

I have been known to Bruce Smith- through a diligent investigation that

obviously did not occur - that further bolsters David's claims regarding

I Bruce Smith's categorical ineffectiveness. To meet the Brady elements

I though, David need only show that the State failed to disclose favorable

I evidence and that it was material. This evidence certainly was and would

have impacted the jury's decision at trial.

I V. CONCLUSION

I The evidence is overwhelming that Bruce Smith failed to provide

I adequate counsel. Both the nature and extent of his errors and omissions

should give the Court grave concerns about the outcome of the trial. Plus,

I the fact that Detective Keaton failed to record, submit, or provide to counsel

I the exculpatory statements of the Freeman family indicate a serious Brady

I violation.

Perhaps, in lieu of conceding· Brady level suppression by the Orange

I Police Department, the State will simply agree to a finding of ineffective

I assistance of counsel by Bruce Smith and agree that a new trial is warranted.

I If the State feels, based on the evidence provided herein, that it could prevail

I 42

I

I

I

in a new trial, then they will suffer no harm by having one. On the other

I hand, if the State acknowledges, as it should, that the outcome of this case

I would likely be different with effective counsel, then David is entitled, under

Texas and Federal law, to a new trial.

I

VI. PRAYER

I WHEREFORE, PREMISES CONSIDERED, Applicant prays that the

I Court grant and issue a Writ of Habeas Corpus to the Sheriff of Orange

I County, Texas, then and there to show cause, if any there be, why Applicant

should not be discharged from such illegal restraint. Applicant further

I requests this Court, after receiving evidence, to grant Applicant any relief to

I which he may be entitled and issue findings of fact and conclusions of law.

I )

Respectfully submitted,

I THE GERTZ LAW FIRM

2630 Liberty St.

I Beaumont, Texas 77702

Tel: (409) 833-6400

Fax: (409) 833-6401

I

I By: ________~--~~-----------­

Ryan W. Gertz

I State Bar No. 24048489

Attorney for David Pedder, Jr.

I

I 43

I

I

I

I CERTIFICATE OF SERVICE

This is to certify that on June 16, 2015, a true and correct copy of the

I above and foregoing document was served on the District Attorney's Office,

I Orange County, Texas.

I

I

I

I CERTIFICATE OF COMPLIANCE

I This is to certify that the Memorandum accompanying the Amended

I Writ of Habeas Corpus in the foregoing matter is less than fifty pages in

length and contains 9,118 words in compliance with the Rules.

I

I

I Ryan W. rtz, Gertz Law Firm

Attorney for David Pedder, Jr.

I.

I

I

I 44

I

I

I PEDDER EXHIBIT LIST

I Exhibit A- Photos of door locks and alarms

Exhibit B - Photos of the building room

I Exhibit C- Photos of doors and windows into the building room

I Exhibit D - Photos of the office

Exhibit E - Photos of the bathroom

I Exhibit F- Police Report re Baker's and BJ Holden

I Exhibit G- Polygraph test results

I Exhibit H - Bruce Smith Affidavit to the Court

Exhibit I - Don Freeman Affidavit

I Exhibit J - Beverly Freeman Affidavit

I Exhibit K- Greg Freeman Affidavit

Exhibit L- Jeff Freeman Affidavit

I . Exhibit M - Diagram of Baker's Transmission

I Exhibit N - Gerald Thomas Affidavit

Exhibit 0 - Randy Becker Affidavit

I Exhibit P - Larry Haywood Affidavit

I Exhibit Q- Leonard Hutton Affidavit

I Exhibit R- Kirby Procell Affidavit

ExhibitS- Quincy Procell Affidavit

I Exhibit T- Daniel Weaver Affidavit

I Exhibit U - Latisa Pedder Affidavit

Exhibit V- Kenneth Pigg Affidavit

I

I

I

I Exhibit W- Keith Merritt Affidavit

I Exhibit X- Sexual Assault Examination & Forensic Report Form

Exhibit Y- Detective Keaton's Report

I Exhibit Z- Bruce Smith's unfiled motions

I Exhibit AA- Leroy Perkins Affidavit

Exhibit BB- Eric Wolfford Affidavit

I Exhibit CC- Dr. Robert Marroquin Affidavit

I

I

I

a,

I

I

I

I

I

I

I

I

I

I

I

('

I

I

I

I

I.

I

It

I

I

I

I

I

I

I

,

I A

I

I

II l

a,:

I

I

1/

I'

I'

1:

I

I

I'

I

I

I

I

I

I

I

I· j

If I

I

I:

1:

I EXHIBIT.

I {

I

l

~~~ -~.

... .. ;

a· f.:

I

I· l

!

i

~

{

I I!

I '

I

'

I

I

I

I

I

I , . I ~

I

I

I

I

I

I

I

I

I EXHIBIT

J.\_.-.;

I·

I

I ' .

,·t:l-1 '

I •• I'

I I ·.

I ;.

. \

I ., .

'·

.

r>.

~;-·-. ')

..r.'

'·

I '

.• Jl,

' '

•.

. ".,.. .... ..

_ -··

I

I

I

I'

I

I

I,

I

I

-I

,I

I

II

I

I

I

_I

I

,.

1-

I

I

I

I

I

I

I

'I

,,

t

I

I

I)

I

I

I)

I

I

I'

--:~-

I

I

I

I

I

I

I

.I.'

I

I

J

z

~

($ -.3

,I /

I

t ...

I

I

I· I

I

I -i

z

~

EXHIBIT

I I

z

~

~rtt

I

I

I'

I

I

I

I

I

I

It

I

I

I

I

I

I

I

,

I

I

I

I

I

:

\

l

e

-===

I~

~.

'- ""' .

~ . .

I

I

I

I'

I

I C.-I

I

1\

I

I

I

I~

I

I'

I

I

I

l

I}

I

I'

I

I !D~IMIO~O'ii'

c.-J

I

I II

I ~-.-----\~

--~

.. p I: ;~

I I

I

I r(

I

I

\

1''f

'1·j

•

,1

.,

J I·

i 11'1

i ,, l

,,I (' r--J

! ·I

(I

li '

I

I

;

1':

\ C'·

\ ~ ·/

I !i

,, i

\·'

;(

·I : I

I I' ':<1

. L)'\) II

(

i

:I

•, ,.

l'b \I I

I

I

I (-~

I

~

I

I

I

I

I

I

II

I

I

I

I

I

I

I

I'

I 0

I

I

I

I

I

I

I

I

I EXHIBIT

(J .. I

I

I

I

I

I

I

I

I

I

I i ()

.

~

EXHIBIT

-7

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I ·::

I

I

I

,

I

I

I

I

I

I

It

I

I

I

I

I

~I

,;.r-

I

I

I

I

I

I

I

I

I

I

I (-I

I

I

I

I

I I'

(!

I"

I

I (}

I ()

I {I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

,

I

I

I

I

I

I

,It

I

I

·I

I

I

·I

I

,

I

I

Detailed ~eport- Call #1013413

'all Detail.

~:;:;:At.m•mmamfflP·'Mm:;::~w~~~ -

~~ 06/.02/2010.12:29:46

Apt Zip Mile Post

_404 green .bakers transmission

·: City, State (County) SubGrid- Grid (District) Dispo of Call

' orange . . .. . lOth st. east I Park st. south CLEARED NO REPORT

.call Type Priority How Reported CaiiTaker

DISTURBANCE 0 PHONE. meltonk

HP.:ast Narrie . .· ·Fir_st Name Middle . Phone Address Apt City ST DOB InvType ·

freeman beverly · bakers

06/02/20 0 12:30:46 06/02/2010 12:31:11

• ARRIVED 06/02/2010 12:31:11 06/02/2010 12:50:11

CLEARED 06/02/201012:50:11 06/02/2010 12:50:11 0.00

·u Notes

~~~=a~~mg~~~~~~~~~~~~-~·~-~-~~~~~~~~~~~~

06/02/lO~O;:i2:~9:46: · (meltonk)

·ssuei:! by don freeman 6/i/20iO 12:52:30 PM

respass lssuedto both subjects 6/2/2010 12:49:53 PM

09/ck: holden, christina 10~29-86 6/2/2010 12:37:32 PM . . .

57 SEARCR ON BISHOP,WILLIAM,19801023 NAME: BISHOP, WILLIAM, FRANK, II DESCRIPTION:

~ITE\MALE\102319S0\5-07\180\RED\BLU_E SEX OFF: N COMM IMPED: N ORGAN DONOR: VISA EXP: PHYSICAL f.DD: 512 S

f.l _ 44TH STCI/CO/ST/ZIP: ORANGE,ORANGE,TEXAS,77630"~000 MAILING ADD: 512 S 44TH ST CI/ST/ZIP:

!fl ORANGE,TEXAS!77630-0000 REC STATUS: ELIGIBLE ADMIN STATUS: CARD STATUS: HME THR ASMT: EXP: CARD

a-vPE: DL·#: 16939037 CLASS: c TYPE: Di.. EXPIR DATE: 10232010 6/2/2010 12:34:04 PM .

Jl57/ w/m bishop, william ii 10-2~-so 6/2/2010 12:32:36 PM ·

~

: david pedder '

on scene;

. . .· rp apprehensive

.

to speak

..

6/2/2010 12:31:52 PM

I

I

I

I

I

I

,

I

I

I

I

I

I

--I

I

I

I

I

I

,I

,

I

.JOHN SWARTZ POLYGRAPH SERVICE

Criminal Polygraph Examiner Former Federal Examiner

I United States Dept of Justice

February 21, 2011

Mr. Bruce Smith

I Attomey at Law

2914 Eastex FWy

Suite 102

I Beaumont, Texas 77703

REPORT OF POLYGRAPH EXAMINATION

I EXAMINEE: David Clifford Pedder

EXAM DATE: February 21, 2011

I EXAM TYPE: Specific Issue-Aggravated Sexual Assault of a Child

SYNOPSIS:

I On February 21, 2011 Mr. David Clifford Pedder was administered a

specific issue polygraph examination regarding the instant offense for

I which is he charged: Aggravated Sexual Assault of a Child in Orange

County. Texas in 20 11. Mr. Pedder is represented by his attorney, Mr.

Bruce Smith. of Beaumont, who ha:;:; requested this e.--w;;:amination.

I PRE-TEST INTERVIEW:

I Prior to initiating the pre-test interview, Mr. Pedder was advised that a

polygraph examination in Texas is voluntary and that he would be

requested to read and sign a release, giving this· examiner permission to

I proceed with the interview and examination. He was also advised that by

· signing the release, he was authorizing distribution of this report to his ·

attorney only. He read and signed the release and the interview began at

I 9:15a.m.

Mr. Pedder appeared alert, on-time and properly oriented for his

I examination. He identified him.self with Texas Driver License #

09635826. He resides at 8872 Tulane, Orange, Texas.

I Mr. Pedder stated he was born on January 23, 1963 at West Morlan,

Pennsylvania. He is forty eight years old. He was raised in Orange where

I he attended high school through the tenth grade. He has no further

higher education or Iililita.ry experience.

I His father is deceased. His mother lives in Wichita Falls. He has one

brother and one sister. Mr _ Pedder has been married four times~ most

recently to Cheryl Pedder for less than a year. He has three daughters

I and a son from the prior marriages.

440 Louisiana Street, Suite 900, Houston, Texas noo2

I 713 460-3000 www.polygrapnusa.com

EXHIBIT

I I ------

I

I Mr. Pedder is employed at Baker Transmission in Orange as a mechanic.

He reported no prior arrests or convictions during his lifetime.

I EXA.l\IIINEE'S STATEMENT:

Mr. Pedder identified the alleged victim in his case as Alrula, the thirteen

I year old daughter of his step-son, . William Bishop, who lives in

Deweyville, Texas.

I Mr. Pedder stated Alana would sometimes come over on weekends "to

clean the shop" and one day she announced that she had been having

sex. In response to this, Mr. Fedder asked her, "What are you going to do

I when they find out?"

According to Mr. Pedder, Alana answered by telling him, ''I'll ten them I've

I been using tampons. You. .know one of them. You're kin to them". When

she made this comment, Mr. Pedder advised her he didn't know anyone

in Deweyville an.d she said, "'It's B.J." She subsequently mentioned her

I grandfather and a man she had babysat for.

Mr. Pedder stated he became confused and he asked her- why she was

I telling him this information. She responded by telling him, "They all

think you're messing with me".

I Mr. Pedder recalled that she then asked for a dirt bike and when he told

her no, she advised him, "All I have to do is show some tears and

everyone believes me".

I Mr. Pedder stated he became concemed over her allegations and he

consulted with a neighbor who is a Port Arthur Police Officer who in tum

I notified the Orange Police.

Mr. Ped.der stated denied ever having sexual intercourse with Alana or

ever having any sexual contact with her.

I EXI\.M .~MINISTRATION:

I The following relevant questions were formulated for Mr. Pedder's

polygraph examination based on the case facts and the results of the

pre-test interview. All questions were reviewed with him prior to the exam

I and his answers follow in parentheses:

4. Have you ever had sexual intercourse ~th Alana? (NO)

I 6. Have you ever engaged. i..'Tl any sexual acts with Alana? (NO)

I

2

I

I

I

I EXAMINER'S ANALYSIS:

This examination was administered utilizing the U.S. Air Force MGQT

I format. It is the opinion of this examiner that there were no significant

physiological responses to the relevant qt1.estions in this series. This

exam is evaluated as NO DECEPTION INDICATED.

I

I Jo S. Swartz, License

Te:xas Polygraph Examiner

I Fonner Federal Examiner

I,

I

I

I

I

I

I

I

I

I

I

I 3

I

I

I

JOHN S. SWARTZ

I CRIMINAL POLYGRAPH EXAMINER

RETIRED FEDERAL EXAMINER

I U.S. DEPARTMENT OF JUSTICE

• POLYGRAPH CONSULTANT

I CHIEF'S COMMAND LEGAL STAFF

HOUSTON POLICE DEPARTMENT

I and

OFFICE OF THE INSPECTOR GENERAL

CITY OF HOUSTON

I

• MEMBER

I SEX OFFENDER TESTING COMMITTEE

AMERICAN POLYGRAPH ASSOCIATION

I • POLYGRAPH CONSULTANT

NBC NEWS/DATELINE

I NEW YORK CITY

John S. Swartz is a former Federal examiner for the United States

I Govemment and has been licensed by the State of Texas for twenty

nine years. He retired from the U.S. Department of Justice/Drug

Enforcement Administration in August 2012.

I Mr. Swartz is a graduate of the University of Texas at Arlington. While

in college, he was employed by the Dalias Police Department and the

I Texas Department of Public Safety. In 1976, the U.S. Drug

Enforcement Administration recruited him and he has served at posts

throughout Texas and South America. He initially attended Sturm

I School of Polygraph and later the United States Department of

Defense Polygraph Institute at Fort McClellan, Alabama. He

subsequently became the U.S. Govemment's only polygraph examiner

I in South America.

In 1995, Mr. Swartz opened his private practice in Houston. During

I his twenty nine years as an examiner he has tested persons charged

"l.vith a broad spectrum of Federal and state crimes.

I In 1995, Mr. Swartz initiated the sex offender testing program for the

Harris County DistriCt Courts for all sexual offenders on probation.

I

I

I

I

He now tests probationers and parolees for ten South Texas counties

I and the United States Probation Office.

In 2007, Mr. Swartz became the examiner and consultant to NBC

I News/Dateline in New York on the Diane Zamora "Texas Cadet

Murder Case" and his report of Zamora's examination can be viewed

on the NBC/Dateline website.

I In 2008-2009, Mr. Swartz became one of ten examiners in the United

States invited to be a member of the American. Polygraph Association's

I Sex Offender Testing Committee 7 which just wrote and published the

national guidelines for testing sex offenders.

I In 2008 and continuing through 2011, Mr. Swartz became the

polygraph consultant and advisor to the Houston Chief of Police and

the Chief's Command Legal Staff as well as the Office of the Inspector

I General for the City of Houston. He retired from DEA in 2012 and now

conducts examinations worldwide.

I Additional agencies he has served include:

• Bexar County District Attorney's Office

I. • Brownsville Police Department, Chief Carlos Garcia, on Internal

Affairs issues.

I • Odessa Police Department on Internal Mfairs issues.

I • Montgomery County District Attorney's Office, Conroe, Texas on

Internal Affairs/ police issues.

I • De Witt County Sheriff's Department on Internal Affairs issues.

He is a frequent consultant to the Harris County judges, often serves

I as an expert witness, ·and he has provided training on polygraph

matters to judicial meetings, bar associations, and law enforcement

conferences throughout the United States including the Texas Center

I for the Judiciary, Harris County District Court Judges, and the Harris

County Criminal Defense ~awyers Association.

I Mr. Swartz has also appeared on the Dr. Phil Show in Los Angeles,

and has served as a polygraph consultant and interviewee with KTRK-

Channel 13 in Houston; KHOU Channel 11-Houston, Channel 26-Fox

I News-Houston, and KTRH Radio.

I

I

I

;

I

I.

I

I

I

I

-I

I

I

I

I

I

I

,

I

I From:sm ith & .Ship I ey Law 40~8992648 06/0912015 l3 :21 #200 f;O.Q.2l004

I

I NO. A.clQ0,640-'AR

I :STAT:EOFTEXAS

COUNTY QF ORANGE

I

I My name is Bruce N. Sniith and t am the attorney whq teptesertted Ivf+< David C. Ped<:le,I';

Jr. lil this cause, in. which he VI'a$ charged

. with aggravated

. . sexual. assault.

I I was hired by Mr. Pedcier<in November q:f20io. t sp~tit a gr~~t~eal qftfu.J,e corisultin.g

with and interviewing ML Pedder coneernifig the allegati6Ii t4at had been roa,i:l¢ ~gainst J:ihn:;:

.regarding having sex with a. twelve (12) year old chil&. After thoroughly d.isclissiJig. the maiter.

I .:vVitli M:r. Pedder, itl>ecame a,ppaient that our. Strategy. had to he.· that• Mr:. Pedder was simply·not.

gui}ty of these allegations andthat the own¢r of:tlJ.~ busiri.¢88 that Mr. Pedder .worked .at could

testify that he ¢ouid n.oth::Lvehacls¢~ w1th this child at his place o:fhill?m¢Ss as alleged b)' the child,

I ·due·t() ilie•factthatl\1r, P.eddet d1dnotl:iave:al<e:Ytofu.epla(;e o{busilless a:ndt.het¢for~ coUld not

have. been alone with this child in the place of.bmHness, as a1leged by tl:ljs c})ild, We fc;:lt that

.throughth~•testimony of Mi. Pedder and especiallyhis boss, that the jUry would.either not believe

I_ the c1:Uld'~ s4ttements or woUld at least haV.er~oriabie doubftha± the allegations were. hue. .

. .Soon after b~ing hired by Mr: Fedder, I made. contactW:Jth.the a8sis:tan,t district att.otp.ey

who. WaS afthaftirrie in charge ofthe CaSe; Mr~ Cory Kneeland; Mr. K.i:J:eeland and r discussed the

I .case llibrci:tighl:Y and the eVideJJ.~ against Mr. .Pedcier and Mr. Kneeland informed me that the

•sta1:e;$ offetw~Uld be thirty (3b)yearsin tbci,:wllich of~U:tse :Mr: Peddetrejepted..

I To the best of m)rrecollection, approximately in January of 2011, l reviewed the. State;s

·file a-t the offices oftheOrimge.CountyDistrictAttomey and I also.receivedacopyofMx. .Pedder?s

r¢corded statement, as well as .his written statement that he had given to the police~ DUring the

I cow~e of iiiSJ?ecli.rig tJ:ie :0 Ns fiie I re:vieweCi the repC>rtS tram the vanous office!'s iirifolved, as

well as> the stateiil.~rit g_ ea

. .the p· ·olice from the aileg· v!ct.im. ta.lso teceh:ed eop·ie5 ofh~d

· I.v:en to ...

wnttenltitters Written by :Mr: :pedder; :(jneofth~eletter \¥.~a ha:ii4 VVritteri.lC:tter totb.e tbild aS

I well as suicide letters signed by :M:r; ·Fedder. J additionally reviewed the SANE report that had

beeri prepared by the Stiit~' s .expert, Brenda Ga:trisoiL. I later persorially mterviewed Ms; Garrison

tegardi!lg her flnqii;l~S iii the fepQ.ti that she filed.

I Subsequent to receiving this eviden,c.e from the State, 1 met with .:tv.f:r; Pedde.t on several

occasion. atiny office and we decided that he would snbmifhii:nself to a polygraph examination to

I be d.oile l:>:Y Mr.;Jo:hii Swartz; wh.ois ~fo:i:inet FedeJ:at.l::~aminer.fo.rilietrri.itciiStates Depart:znent

of Jlis.ti6e. .Mi\. svv:att:z is. a w~ll-kiioWJi cd.n1,inaJ. polygraph e:;jC~et located: iri HotistC>J4 Texas,

and was well regarded by law enforcement. Jn February 2011, I contach:~d Mr· Svvarl:z to illalce

I

I Pa elof:l

EXHIBIT

I \-\

I From: Sm i t h & Sh ipJey Lavl 4098992648 06/09(2015 13:28 #200 P.Q03/004

I

I diep_t

ar:tangceiJ;ients fqt: ni)' to be exa.ttJ.Itt~d by !Jim ailcl V/e arranged for th ~ exami:ilatiori. to. Oecllr

on February. 11~ 201L I spent a greaf deal of tiJlie ptepati:hg Mr. ?eddet :fot tlils poiygrapli.

exai:nination and even. gave him som:e written tn3;terial to study that vy(iul¢ help prepwe b#n• for

the polygraph examination. Ori FebruarY 21i 2011, Mr~ Swartz COJ1dl.lcted a .Polygraph

I exain:iriaticin of Mr. Pec1d.er ai:ld I received a Wri1;ten rep.oit froni ML SwartZ showing that Mr>

.P<.<4dei show¢<1 rio d.6(?eptio:o, wheii he den:i~d. havfug anyki.rid of sex vv:ith the alleged victim. To

the best ofmY rec(:)1lecti.9nll.1$ci deliv¢r¢d a copy ofthi~ polygraph repOrttothe.districtattomey's

I o:Efi:cefortheir teviev,;. A.ithaJ t:i:(lle :t Ma,in 4is¢ussed tile.: :PWPcirted e\r.1d.¢nce against.:M.t. .Pe4der:

with the prosecutor andagam·utged$.em•to tec.onsiderpuisuing·tlJ.i.$ c~e,

I Though the cows.e oft:he8e proc~~gs 1 had several meetiilgs With the prosecutor, Mi>

:P}fiiH:P Sln.ith; disct1s#rtg the ¢vtdeJ1¢e o:ftlle case~ ~ut, he made it clear :thatihey wefe g6iiig to

pursue the case ag~nsfMr.. Pedder antfwoul.(i not dis:tnl~s it; · ·

I .

lprepar~d ser;V:al p:i:'drlal n::i.oti<:>ns ori heha1fofMr. Pedded:batwere ready to be filed a(any

t~t~~::~pge;!:;:ia:;~~~~o;::e:fnU:1:~~J{b?~~~!rt~=~e~o!:n~t~~~;;r:~

6

I Statement; Motion for. .Production of Writings and Statemel1ts> 1\iiC>tion f<Yr Von" b1re ()f E){pert

Witness; Motion forWitness List, Motion for Discovery; Motion for Discovery<ofPunishnlent

I .EV:icl.en.ce, and Motion to Suppress ~EYid~D.ce,

):fi :further preparation for trial, IinJe;rviewed andh:;id several, .c(Jrtf!!I'el).ces with lvfr.Pedder' s

I_ employer, Mr~ Don Freeman. 1 was so impressed with Mr~ Free.rnan arid his comtii~ding

appeaiari:ee and kri.owledge of:ri:iy client arid the situation faci.iig my clieriL Mr; Freeman in my

()ptiori was so con.v±nc:i!iginwhathe was abietc):testi:fyto thatweiriadethe decisiori.tha:tit \vould .·

I ~:J~~=t ::t;o~1~tt~;:an:P:!i~i:::~J~~=-~~Ze:::~J~mJI~~~e~!"~i:~

6

priot to triall drove by Nfr; Pedder' s and Mi\ Freeman's place ofep:tployrnent to see 'Wh~re this

I .alleged sexual. assault allegedly occuued.

P~(lder}::~0::I!e:~!~t~::~~d~v:i:~;!~YGJt::~~:ptt:~~;f!JP:!~t

I r.ecords of a Bran.dy:Bishop~ but these reoo:rds provided no help in the defense o(his. ca:se.

bliririg tl.ie .co:Uis.e of the tiia11Lis my belief that through the cross eX:aminatiori of the

I Freeman ail<! the!)eferi.da:IJ.t, Mr.

all~gec1Victib:J. iP, this case .itS•· well·~·· the qlt.ect~stifuqny o:fW~

Pedder, thatvre showed,. or at the very least; .e$tablish.ed reas()!lable doub~ thattbe sexual asSa1llt

.could not have occilrred iri the manner describe by the alleged victim. Twas very shocked and

I disappOiritedthat th¢JU:rY d.idnot agree with me~

I

I

I Page2of3

I

I From.: Smith & Sh i pJey Law 4098992648 06/09/20l5 13:28 #2oq P. cio4/o04

I

1 fought hard ·for •Mr. Peddet throughout ili.is en,tir~ prod:edings, .but apparently .Tv.tr.

I Pedder's suicide attempts both•before trial ~d during tria.! v,reiglled hea.v:ily on the Il1iiids of the

jti.rors.

I .. ·····.·.· .·· Or/J;,;

I ~.·.~··

Bruce N. Smith

I State of Texas

c6unty (}fJeffers6ri.

I

I

. .;..

I

I

I

I

I

.I

I

I Page~ of3

I

I

I

I'

I

I

I

I

I

I

II

I

I

I

I

I

I

I

,

I

I

I· STATE OF TEXAS §

§

I COUNTY OF ORANGE §

~~, AFFIDAVIT OF DONALD F. FREEMAN

{,

BEFORE ME, the undersigned authority, personally appeared Donald F. Freeman, who,

having been duly sworn, .stated:

I I. Background Information and Relationship with David Pedder

I My name is Donald F. Freeman. I reside at 6203 Rosewood, Orange, Texas

77632. I own Bakers Transmission at 404 W. Green, Orange, Texas. I was born in

Purcell, Oklahoma. I graduated from Muskogee High School in Muskogee,

I- Oklahoma. From there I went to Central State University in Edmond, Oklahoma and

graduated with a BS degree major in history and double minor in psychology and

PE. From there I coached for 2 years at Del City High School in Del City,

I Oklahoma. From there I moved to Putnam City where we won the state 5A

championship in football. From there I went back home to Muskogee and I was the head

football coach at Muskogee High School for three years. From there I became a service

manager for a fork lift company.

I moved to Orange and bought Baker's Transmission in 1983 with a partner. I

have been the owner for 32 years. During this time, I mentored kids though the high

school work programs and through the Texas Workforce Commission program; so it is

not unusual for me to have students working in my shop. We even had classes come to

my shop from their tech schools to see how we operate. Many of the students and people

that were trained and mentored at Baker's Transmission continued working in Southeast

Texas in this type of business. For example, Ronnie Comeaux worked for us during

school and is now a plant manager at Pineland Paper Mill. Another young man named

Brian Williams now owns an auto repair and machine shop in Beaumont.

I met David Pedder while he was working at Procell Brothers down the street

from my shop. He had worked there for 21 years and Mr. Procell was very satisfied with

him as an employee. But, after Hurricane Ike, Procell Brothers did not open back up, so I

offered Dave a job in January 2009. Dave was loyal, trustworthy, knew his craft, and

was always at work. He was one of the best employees I ever had. He had unique skills

to fix and repair any vehicle that was brought into the shop. Dave was well liked and

respected by management and co-workers. Likewise, Dave respected his co-workers and

management and owners ofBaker's Transmission.

I II. Charges Against Dave and My Dealings with Bruce Smith

Sometime in late May of 2010, I learned initially of the accusations against Dave.

I I did not know any details and because Dave did not actually commit the offense, he

didn't know any of them either. Dave told me directly that he never had sex with the

complainant. In my twenty years of interacting with Dave, I have never known him to lie

EXHIBIT

.I

I or be dishonest.

An investigator from Orange PD, named Keaton, came by my shop in June, 2010

I and told me that a young lady was alleging that Dave had sex with her in the shop some

morning in April when I was late to work on a Saturday. My wife and sons (who work at

I the Shop along with me) all met with Keaton in my office. He asked questions to us and

we each talked to him and provided answers.

Generally, I recall that we informed Keaton that I was never late for work. We all

I told him, in no uncertain terms, that the allegation must be false because there was no

Saturday in May or otherwise that it could have occurred. We also told him that the shop

lr is never open unless one of the family is present. To my knowledge our statements were

never turned over to Bruce Smith. Detective Keaton never looked at the "building room"

nor did he ask our permission to take the mats from the "building room" in order to test

I· them for DNA. If he had, I would have given them to him.

A number of lawyers Dave spoke with were way too expensive for him to afford.

I So, someone recommended he hire Bruce Smith who would only charge $2,500.

After I learned that Bruce Smith was representing Dave, I became concerned that

I· Bruce had not been contacted me as a witness or a person with material information

relating to the allegations. I also became aware that Dave had taken a polygraph test, that

he had passed the test, and Dave and I both believed that Bruce Smith was going to use

I the polygraph results to negotiate a dismissal of the case. See Exhibit G. Dave expressed

a willingness to take a polygraph at the governments request as well. They never

provided him that opportunity .

.I I have reviewed Bruce Smith's affidavit in the present case where he indicates

that he "interviewed and had several conferences" with me. See Exhibit H. This .is

simply untrue. The fact is, after the meeting with Keaton, I did not hear much more

about the case until nearly two years later. All of a sudden it came to my attention that

the case was being called for trial. It was at this time that I began calling Bruce Smith

I because I was concerned for Dave that I had never been contacted as a witness or

interviewed by Bruce. I called Bruce Smith's office at least five times to offer my

assistance and he did not take my call nor did he return my call until the Friday before

I trial.

On that day, I called Bruce Smith again and he finally took my call. I explained

to him that there was no way the allegations, as I understood them, could have happened

I because Dave did not have a key nor did he have the alarm code that would allow him

access to Baker Transmission without myself or one of my family members being

present. As of the day the trial started, Bruce Smith never asked me any substantive

questions, my family members who work at the shop, nor did he come to my place of

business to view or photograph the alleged scene. Further, I was not listed as a witness

on behalf of Dave, was not subpoenaed, and was not asked to be a defense witness. In

fact, I was subpoenaed as a witness for the State. Sometime during the first day of trial,

the prosecutor Phillip Smith told me that he would not need me the next day as he had

I

2

I

.I

I gotten what he needed from other witnesses. Since Bruce Smith had never discussed my

testimony with me, I almost walked into the Courtroom to watch the proceedings but

decided not to. I learned later that, had I done so, it would have completely disqualified

me as a witness.

After the first day of trial, Bruce Smith told Dave that his ex-wife's testimony had·

hurt them and that Dave was going to go to prison. Prior to calling me as a witness,

Bruce never discussed with me the nature or details of the allegations made by the

complainant, he never prepared me for my testimony, and he never asked me about other

witnesses who could support the notion that Dave did not have access to the building

unless a family member or I was present.

Once the trial started, I was still unable to learn nor was I advised about the facts

and testimony that was being developed in the trial. It wasn't until later, when I read the

I transcript of the trial that I realized that the allegations were both impossible and

illogical. I was able to conclude that had Bruce interviewed me and my family, visited

the scene, or prepared me for testifying, the outcome would have been very different.

I

'

Afterwards, I was very frustrated that I was so unprepared for my testimony by Bruce.

III. As a Practical Matter the Allegations against Dave are Impossible

I· Dave absolutely did not have a key to enter the Baker Transmission Building at

any time prior to June 2010. The Baker Transmission Building requires a key on either

side of the main door. See Exhibit A-1, A-2, and A-3. There is an alarm system that

I Dave would have had to disarin and he did not have the alarm code prior to the

allegations being made and he did not have any way to learn or ascertain the alarm code.

See Exhibit A-4 and A-5. The shop area of Baker's Transmission has large bay doors

I that are 12' x 20' and they are locked with a chain and a padlock. See Exhibit C-1, C-2

and C-3. Given the part of town where my shop is located, we are vigilant in protecting

I our property, so doors are always locked and the alarm is always on when no family

member is present.

In approximately 1998 I bought my partner out and became the sole owner of

I Baker's Transmission. From that date until the date of allegations made against Dave, I

had never given a key to any employee. Only my immediate family has a key to the

I business, with the sole exception that a trusted peace officer is given a key when the

entire family has been out of town on three or four occasions. This sole exception

situation did not apply to the time frame in question in this case.

I have never arrived at work in the morning at Baker's Transmission and found or

discovered that David was already inside the building. During the time frame in question,

every Saturday morning, a group of local men met at Baker's Transmission for coffee

and socializing. If I was ever a little late to work on a given Saturday, David and the

other men would have been forced to wait outside until I arrived. Those men could have

been contacted by Bruce Smith and called to testify to that fact, but they were not.

Regardless, I do riot recall being late on any occasion during April, May, or June of

2010.

3

.I

I

IV. The Nature of the Allegations are Illogical

I When I reviewed the trial transcript, I learned for the first time that the young lady

testified that: 1) the alleged incident happened on a Saturday in May (not April as Det.

I Keaton had told us), 2) that the doors to Baker's Transmission were left open, 3) that no

one was there, 4) and that the alleged sex act occurred on the floor of what we call the

"building room." See Exhibit B-1, B-2, and B-3. I became aware that there was a

discussion about carpet in the "building room" but there is no carpet in the "building

room" (nor any other room in the building for that matter). The "building room" does

have long, narrow floor mats. See Exhibit B3. However, those would be an

uncomfortable, illogical, and unclean place to have impromptu sex. I would also add that

there are glass doors to the "building. room," glass windows in the "building room," and

the bay door-· windows are glass; all are untinted. See Exhibit C-1 and C-2. As such,

I someone outside the building or in the shop could readily view activities in the "building

room."

If one were going to commit an offense like this, the only logical place to do so

would be in the main office. The main office has a couch. It also has windows that

enable you to see out but the tint prevents someone outside from seeing in. See Exhibit

D-1, D-2, and D-3. The only other place of privacy in the building would have been a

lockable bathroom. See Exhibit E-1, E-2 and E-3.

I In his affidavit Bruce Smith indicated that he "drove by" my shop on "at least two

occasions." Yet, Bruce Smith never came to my shop prior to trial. He never

photographed the scene of the alleged offence. Despite it being factually impossible,

because Dave did not have a key, if Bruce had come to the shop, photographed the scene,

and entered the pictures into evidence, he would have been able to demonstrate visually

I how illogical and nonsensical the complainant's story was.

V. Dave only Obtained a Key after the Allegations came to Light.

I Subsequent to the allegation, the complainant's family members began to harass

Dave, my family, and me. For example, they called and harassed my wife, presented

themselves at my shop, verbally attacked her and made threats against Baker's

Transmission and Dave. As a result of their actions, we called the police and informed

them of the threats. A report was filled out, but nothing was done. See Exhibit F 1.

0

This was the first time we had experienced a situation like this. It was so unusual

that we had a family meeting and decided that we would give Dave a key to allow him to

have a safe place to stay and sleep at night because they were also attacking him at

home. This provided him some security in the building and also there was an alarm

system to further protect him from the threatening conduct of the complainant's family

members. If I had believed the complainant's story, I would not have given him a key

after the allegations arose.

On the stand, I tried to answer the questions I was asked rather than the questions

I

4

I·

I

I that I wanted someone to ask me. As a result, when Bruce Smith asked me: "Did Mr.

Pedder obtain - did you give him keys to your business?" I truthfully answered "yes."

However, if he had asked me whether Dave had keys to the business on May 15, 2010 or

I prior to that, the answer would have been "no." That question and answer would have

been more helpful to the jury in making their decision, but that was not the question I was

I. asked.

VI. Bruce Smith Did Not Obtain Mitigating Evidence from Me

I After Dave was convicted, Bruce Smith asked us to testify at punishment. He did

not indicate what the nature of that proceeding would be or what kind of testimony he

wanted us to provide. As it turned out, Smith simply wanted us to rehash guilt/innocence

I issues rather than provide testimony about why Dave should get a low sentence.

Now that I know how proceedings like this should go, if asked, I would have

provided the following testimony about Dave: First, Dave's mother's boyfriend shot and

killed his dad when he was young and he was forced to move in with his

grandfather. His grandfather was a grave digger for an area cemetery and that experience

had a very negative impact on Dave and his ability to effectively communicate with

others. As a result, he had to quit High school at 16 to support himself and went to work

I as a mechanic. Dave has worked consistently at one or multiple jobs up until his

incarceration. Other challenges that he has faced in his life include having a wife who

committed suicide.

I None of this was asked about by Bruce Smith on or off the record. In an effort to

mitigate Dave's punishment. Moreover though Bruce did not ask me about Dave as a

I person. What I know is that, despite those challenges in his upbringing, he is a man with

great work ethic who is loyal, trustworthy and punctual. While working for me, he never

missed a day of work. He was consistent and reliable. As a person, he is quiet, low key,

I and passive. For example, when a complainant's family member verbally attacked him at

our shop, instead of fighting back, he went to the back of the shop to avoid the

confrontation.

I I believe had Bruce Smith learned about Dave's history and provided testimony

about it to the court it would have impacted the outcome of his sentence. Because I am

I not a lawyer, I did not understand the process and did not know to volunteer the

information to Mr. Smith when he failed to ask me about it.

###

I

I

I

5

I

I

I "My name is Donald F. Freeman. I have reviewed my affidavit above and the

I facts stated therein are true and correct."

I &~JJ71~

Donald F. Freeman

I

Sworn to and subscribed before me on ~-?U- // '2015.

I

I· DEANA AYLOR

MY COMMISSION EXPIRES

August 26, 2015

NOTARYPUBLIC (/'

I

I

I

I

I

I

I

I

I

I

6

I

I

I

,

I

I

I

I

I

I

II

I

I

I

I

I

I (

I

,

I

I

I Affidavit of Beverly Freeman

I The State of Texas

County of Orange

I BEFORE ME, the undersigned authority on this day personally appeared Beverly

Freeman, of Orange, Orange County, Texas, hereinafter called "Affiant", who after by

me being first duly sworn did depose and say as follows:

I "My husband and I own Baker's Transmissions. I have worked in the shop since

1999. We hired Dave to work at Baker's right after Hurricane Ike. I loved Dave. He

I was my favorite of all of our employees we have had. He is quiet, soft-spoken, and got

along really well with all of us. He was pleasant to have at work. My grand-kids loved

I Dave. They are between the ages of 7-18 and he was always polite and respectful with

them.

Our shop is a small family owned business. All of us have keys. There is no need for

I the employees to have keys. In thirty years no one has regularly had a key. In fact, my

brother, Larry Haywood, lived with us and worked for our shop for four years but we

I never gave him a key or the alarm code because one of us was always there and there was

no need for it.

I became aware of the allegations against Dave in May or June of2010 when the girl's

I family began harassing and accosting us. Dave's wife called and said: "Y'all are

employing a child molester and he is going down and Baker's Transmission is going with

I him." We also learned that they were attacking Dave at his home. They had broken into

his house and stolen all belongings. On June 2nd, 2010, Don, the boys, and I had a family

meeting and made the decision to give Dave access to the shop overnight so he could get

I away from the torment from the girl's family. It was the first time we had done anything

like that.

I Detective Keaton from the Orange Police Department talked to us regarding the

allegations a week to ten days after the allegations came to light. He met with all four of

us in our office (see Exhibit C). He told us that A.A. was accusing Dave of having sex

1- with her in the shop on a Saturday in April. According to Keaton, she had said that Dave

was able to open the door because Don was fifteen minutes late or so. We laughed at the

notion of him being late. I told him that Don is a routine guy, as a former football coach,

I and he isn't late. Plus, we do not ever leave our doors unlocked and no one else can open

them. I told him- and another of other people- that it's crazy that we would give out

keys to employees. We are a family run shop and do not need to do that.

I Even though the girl testified that the events were committed at our shop, I was never

contacted by Dave's lawyer about testifying. Our other employees and several regulars

I that came into the shop on Saturdays also know that the girl's story is impossible. The

jury should have heard from each and every one of us. Saturdays are one of our busiest

days and people are always there first thing Saturday morning. Given all the glass

I windows into our shop, the girl's story simply makes no sense. 6J•IIIII!~~!I!!III•..

EXHIBIT

I

I Dave was a valuable, considerate, hard working employee. Some people are always

looking for a way to get out of work and Dave was always looking for ways to help. The

I notion that he would take advantage of our trust by committing this crime at our store

does not align with the person we have known for so long.

I Bruce Smith never came by our shop before the trial started and I never met him until

after the trial started. We were also never contacted by his lawyer prior to sentencing - a

month later - in an effort to reduce his punishment. I could have provided valuable

I information to the Court about Dave's background, the things he has had to overcome,

and that he is a really good person that we care for very much. Even if the Court

believed Dave had ·committed this offense - which he did not - we would have had

I people lined up around the block to testify as to what a good person he is."

EXECUTED this the/~ay of a.m.,, 2015.

I

~ fj~(/JhlhJ

I

1

1ant (/ ..--

I JUBSCRIBED AND SWORN to before me by the said Beverly Freeman, on this the

/I-~ day of~, 2015.

I .t~~·~lii~ri;t~

§*! -~~ DEANAAYlOR

\'i,..... ~i:/ MY COMMISSION EXPIRES

··>;,pr,,;,..•' ----- ~ugUSI 26, 2015

I

I

I

I

I

I

I

I

I

I

I

,

I

I

I

I

I

I

II

I

I

I

I

I

I

I .

,

I

I

I The State of Texas

I County of Orange

Affidavit of Greg Freeman

I BEFORE ME, the undersigned authority on this day personally appeared Greg

Freeman, of Orange, Orange County, Texas, hereinafter called "Affiant", who after by

I me being first duly sworn did depose and say as follows:

"My family owns Baker's Transmissions. My mother, father, and brother all work at

I the business with me. Prior to June 2010, no one outside the family had access to a key

to the building. No one outside the family had the almm code to the building either.

I The work station, depicted in Exhibits B-1, B-2, and B-3 is my work station in the

"building room." In April, May, and June of2010, I never observed or noticed anything

on or around my work station that would indicate that people had had sex on the floor or

I elsewhere at my work station.

The Complainant, A.A., began working for several hours on Saturdays helping clean

I up, empty trash, and doing odd jobs in Februm·y of2010. On several occasions I came to

the shop on Saturday to work on my race car and Dave and A.A. were in Dave's truck

waiting for someone to open up. They had to wait because Dave did not have a key to

get in the building. Dave was always early to work, not only on Saturdays, but everyday.

After the allegations by A.A. surfaced, I lemned that Dave was being harassed and

I attacked by A.A.'s family. At that time, we held a family meeting to discuss giving Dave

a key and the almm code so he could stay at the shop and would be less likely to be

harmed by the family. Prior to that, Dave would never have had access to the building

I unless one of us family members was present.

I do not recall my father, Don Freeman, every being late for work--: by more than a

I couple of minutes - whether on Saturday or during the week. Fmther, we have never left

the doors to our building unlocked overnight as we have hundreds of thousands of dollars

wmth of equipment, tools, and vehicles in our facility.

I I was never contacted by Dave's lawyer before the trial to testify. The jury should

have hem·d from me. I think it would have made a difference."

I EXECUTED this the</Jtday of~' 2015.

I

I Affiant

I EXHIBIT

K

I

I

I S1))3SCRIBED AND SWORN to before me by the said Greg. Freeman, on this

the t.;r'=- day of f;l.:--n~ 2015.

I

I (37

DEANA AYLOR

MY COMMISSION EXPIRES

Augus\26,2015

Notary Public in and for the State of Texas

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

~

I

I

I

I

I

I

II

I

I

I

I

I

I

I

,.

I L

I

I The State of Texas

County of Orange

I Affidavit of Jeff Freeman

BEFORE ME, the undersigned authority on this day personally appeared Jeff

I Freeman, of Orange, Orange County, Texas, hereinafter called "Affiant", who after by

me being first duly sworn did depose and say as follows:

I "My family owns Baker's Transmissions. My mother, father, and brother all work at

the business with me. Prior to June 2010, no non-family member had access to a key to

the building. No person outside the family had the alarm code to the building either. On

I occasion, in the past, we have given a key to Randy Baker, who is a peace officer here in

Orange, to look after the shop when we have all gone out of town on family trips.

I After the allegations surfaced, I learned that Dave was being harassed and attacked by

A.A.'s family. Afterwards, we had a family meeting to discuss giving Dave a key and

the alarm code so he could stay at the shop for his safety. Prior to that, Dave would

I never have had access to the building unless one of the family members was present.

I recall meeting with a Detective named Keaton from the Orange Police Department

I regarding the allegations. He told us that A.A. was accusing Dave of having sex with her

in the shop on a Saturday. According to Keaton, she had said that Dave opened the door

because Dad was fifteen minutes late or so. I informed Keaton that I do not recall my

I father, Don Freeman, ever being late for work. We have never left the doors to our

building unlocked overnight as we have equipment, tools, and vehicles in our facility.

I Dave and I spoke on a number of occasions about my reservations about Bruce Smith.

Dave told me that Bruce would not return his calls. Dad told me that he was trying to

contact Bruce and he could not get his calls returned either. Once the trial began, Dave

I showed me a note from Bruce demanding $10,000 in order to go to trial. Bruce told

Dave that the case would never go to trial and so he was very surprised when Bruce told

I him he would need extra money to go to trial after the trial began.

It was i:ny opinion that Dave should have gotten another lawyer. Bruce Smith never

came by our shop before the trial started and I never met him until after the trial started.

I I was never contacted by Dave's lawyer before the trial to provide a statement or testify.

The jury should have heard from me. I think it would have made a difference."

I this the j1__ day of ()y,c-£ , 2015. EXHIBIT

I

I SUB~BED AND SWORN to before me by the said Jeff Freeman, on this the .LJ-!f .

day of -~~ 2015.

I (

')

~

.

rL

.

f~~

·~.

,,,,, ... ,,,.

···~r-,lti

r~.

v~

..·:;.;

f""AII.IA A\IIIOR

o~"' "'"'

MY COMMISSION EXPIRES

August26,2015

Notary Public in ~ or the State of Texas ~---~~a;,~ill';.~':-~·~·;;;;;;;;;iiiiO~;;;iii;;;;;;;;;;;;;.i;;u;;;;;;;;;;;~

I

'I

I

,

I

I

I

I

I

I

--1

I

I

I

I

I

I

, ...

'{

:

'

·.

·,

~

'

\;:~~.. :·::_

.-~

.

I '~

------------~-------------------~-----~----·--·-···-·----·----:-~---·--·------· ___ ._

_: __ ___ .____________ _

,

I

I

I

I

I

I

I

I

I ___ ·\__ !__1__ _ 1___i___l__ ~___:__ !___i__ ) _l __ \__l_ -

__ ____ :____; __ ___; _:____ ---~··- --~-'

I ____:_: ~ )' ____1, _ _ :, _ _ !,·_

-

I '=:.~:~_'-~! b~-:--:~ -'~~-'=:=

I - - - - - - - - - - - - - - - - - - - - - - - - _ ! _____ ,__

_ _ •___ ,___ .______ . _ _i ________ . _ _ •___ . _ _ -- -~ . • "

4

~~----· __ !_!__ ! _ _ i~ ____ L__ _~ __ _i_)

'_·. _

, ___ ~__ ;____ ~----

_j ____ l___ ;____ !___ _j_l __;___ l__ _j ___ i__ ~ __ :__

~· ! ' ; , ; ____ __! __ ;_ _!_ _______ ~-- _; _ _ _ i____ .

1

' ; , • > 'e , I ' I , • • \'

=~:=-L ~inP~Cs ,:~ ~~ii~~~~~,~~:__~~,=~:=j=t=~=~~:=

1 ! __

I

I ·-·-·-··-·-· ···-·-.-----.·---·--·--:---;--·-·-- ~--------- --------'-·'--'--·- - - - - - - -

· - - - - - - - · --:---- . ___ , - · - ~--·--·:-· _____ :__ ._ _; __: _ _; _

' j

-- ~

_- __ •_________ ,_ _,_ _, __ l, ___ -_ _1. _ _ : ___ • _____ • _ _ , _ \ _ .

__.___ __:________ ____.___.__ ____ :_______ : __ . ~--~ __:_;___ L__;__ ~ __ :___;__ j_; ___ ;_:~ _____ i_ i__ :_::-:

I

: - ·____:__•

I

I

,

I

I

I

I

·~

I r'

I

It

I

I

I

I

I

I'

I

,

I

I

Affidavit

I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared Gerald Thomas, of

I Orange, Orange County, Texas; hereinafter called "Affiant", who after by me being frrst duly sworn

I did depose and say as follows:

I "My name is Gerald Thomas and I have been friends with Don Freeman for over 20 years.

It is a habit of mine to go by Baker's Transmissions on Saturday mornings. To my knowledge, no

I one had a key to the building other than family members. I specifically recall a Saturday morning

I in the Spring of20 12 that I went to Baker's Transmissions and observed David Pedder and the young

girl sitting in David's truck. I stopped and greeted them. Don Freeman was not present nor was any

I member of his family and the business was locked and closed. Dave did not have a way into the

I building. I went to Procell's before coming back to Baker's. When I returned, Don had arrived and

I the shop was open. Now knowing the nature of the allegations, I believe them to be impossible and

I believe my testimony would have made a difference in Dave's case.

I I was never contacted by Bruce Smith. Had I been contacted I would have testified to these

I facts."

EXECUTED this the/ifday of~ 2015.

I

I ~

I 'cJu~;mscRIBED AND SWORN to before me by the said Gerald Thomas, on this the//-- day

of~2015.

I

DEANA AYLOR

I MY COMMISSION EXPIRES

August 26, 2015

EXHi~IT

I tl

. ., ...... , 6

I

I

,.

I

I

I

I

I

I

,.

I

I

I

I

I

I

I

,

I

I

I Affidavit of Randy Becker

I The State of Texas

County of Orange

I

BEFORE ME, the undersigned authority on this day personally appeared Randy Becker, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

"My name is Randy Becker. On Saturdays we get together at Baker's Transmissions to drink

I coffee and talk drag racing. I have been at Baker's before Don Freeman arrived on a number of

I occasions. On many occasions Dave and I would sit outside the business because we had no way

I to get in. This has been our practice for the past thirty years. I think if I was contacted to be a

witness at Dave's trial, it would have made a difference in the jury's eyes."

EXECUTED this the ii!1day of~' 2015.

~~ffid(U_

I

I Affi t

SUBSCRIBED AND SWORN to before me by the said Randy Becker, on this the/!lfday

I of (k?tL. 2015.

tl

I

I DEANA AYLOR

MY COMMISSION EXPIRES

August 26, 2015

I

I

I EXHIBIT

0

I

I

~.

I

I

I

I

I \

I

I

lit

I

I

I

I

I

I

I

,

I f

I

I Affidavit ofLany Haywood

I The State ofTexas

County ofOrange

I

BEFORE ME, the undersigned authority on this day personally appeared Larry B. HayWood,

•III ()fBrookshirc, Wallet County, Texas, hereinaflcr called "Affiant''. who after by me being first duly

sworn did depose and say as follows:

I "My name is Larry B. Haywood. I worked for my brother-in-law for fmu· years. In that time

II I was never gh•en n key to the shop. One ofthefnmily, Don, Beverly, Greg, or Jeff was always there.

•I

There was no need for anyone else to have a key to the building. I was not contacted by Dave's

lawyer!'

•I

?Y ---

EXECUTED tlus thcg day of .Jt/~, 2015.

I

t! ~~d~

Affiant v

'

SU~CRJBED AND SWORN to before me by the said Larry B. Haywood, on this the/;,{' If.

_day of ·)IJ;):.c. 2015. ·

Notary' Public in and f~e ·---

State of Texas v

DEANA AYlOR

M'l COMMISSION EXPIRES

August 26, 2015

I

I

I

I EXHIBIT

1- - ·- ·- · ·- - -:·-. . ·- · . --·-:;:.

t

I .

r

I

I

I'

I

I

I

I

I

I

II

I

I

I

I

I

I

I

I'

I

I

I AFFIDAVIT

I THE STATE OF ·

I

I 1

BEFORE M , the undersigned authority on this day appearek_o ;\1/f;eO #Jo /)t:;Af

I I

I

i

County, Texas, hereinafter called "Affiam-, who ~fter by me

I

I being first duly ~om c:fld depose and say as follows:

I

I SfLJ

I

I

'rf-1-~ Ot.VN~ A-IV2.JO~,

I~

{/UTD 11+£ bv l I i) 1'1\JG - S£ "~+E.

I

I'

I-

I

'

1. I

EXHIBIT

~

I -

I

printed

I

1

/..;!.(yJ.p,u:J /-fvrrrJ tJ 1

I Day of,~/

SUSSCRI AND SWORN to before me by the saicf

I

, this the 5 7l(

I

I'

I

l}~;:5'f.~~

I j

: i

;~~

~o~

..........~

.:..'5

-r,;:;·t.;-."i+-"<-"

Nota

BEVERLY FREEMAN

p b

ry u lie, State ot Texas

My Commission Expires

March 14, 2018

I

I

I

I

I

,,

I

I

I

I

I

I

I

..:I

I

I

~I

I

I

I

It

',I

,I

I )

'I

I

I

I'

:f'

I

I

I Affidavit of Kirby Procell

I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared, Kirby Procell, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

did depose and say as follows:

I "I worked with David Pedder for twelve (12) years. This crime he was convicted of is not

in his character. This is not the man I knew. He was reliable, productive, and honest.

I Bruce Smith never called me about testifying at the punishment phase of the trial."

I EXECUTED this the Jli1_ day of ~-= , 2015.

I ·~Uaff__

Affiant ·

I B~CRIBED AND SWORN to before me by the said Kirby Procell, on this the ;;?'fday

of_ ,2015.

I /

I DEANA AYLOR

MY COMMISSION EXPIRES

I August 26, 2015

I

I

I

I

I EXHIBIT

K

I

~.

I

I

I

I

I

I

I

•I

I

I

I

I

I

I

,.

I s

I

I Affidavit of Quincy Procell

I The State ofTexas

County of Orange

I BEFORE ME, the undersigned authority on this day personally appeared Quincy Procell, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

did depose and say as follows:

I "My name is Quincy Procell. I was David C. Pedder' s employer for eighteen years. After

I' I closed my shop, Dave began working for Don Freeman at Baker's Transmissions. I have known

I Don Freeman for many years and I gave Don my highest recommendation that he hire David Pedder.

I also told Don that David was probably the best and most qualified mechanic that ever worked for

1,1

me.

I On numerous occasions I stopped to ta~ with Dave while he was waiting on Don in the

~y\J'

parking lot of Baker's. In the Spring of20~, I visited with David Pedder early one morning in the

I parking lot at Baker's Transmissions. I recall he and a young female were sitting in his truck and

I' they were waiting for Don Freeman to open the building. He could not get into the building until

Don arrived because he did not have a key to the building. I was not contacted by Dave's lawyer to

I fi

testify to that fact. I am sure that my testimony would have made a difference."

I EXECUTED this the/_14day of~· 2015.

I

I)

/1 SUBSCRIBED AND SWORN to before me by the said Quincy Procell, on this the~day

I of~1/Jf.L,

I"

2015.

DEANA AYLOR

I MY COMMISSION EXPIRES

August 26, 2015 EXHIBIT

I I ~·

I

I

,

I

I

I

I

I

~I

It

I

I

I

I

I

I

I

,

I

I

I Affidavit of Daniel J. Weaver

I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared, Daniel J. Weaver,

I of Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly

sworn did depose and say as follows:

I "I have known Don Freeman and his business at Baker's Transmission for twelve ( 12) years.

I have been to his business on several occasions throughout the years and I had never observed the

I business to be open without one or more of the Freeman family members present.

The company I am employed by uses Baker's Transmissions as our main source for

I transmission repairs. I personally have been at Baker's Transmissions the morning after receiving

a call from Don Freeman that a vehicle was ready for pick up. I am generally always early to an

appointment, and on a couple of occasions, I was earlier than the stores normal opening hour and

I Don was always the person who had to unlock the door and I would wait to enter the building until

after Don had deactivated the building's alarm.

I Don and I would finish our business and usually we would talk for a few minutes, drink some

coffee and continue with our work days."

I EXECUTED this the !!l!c day of YAY- , 2015.

I 0'

I

Affiant~

SU~BSRIBED AND SWORN to before me by the said Daniel J. Weaver, on this the/Jl

I day of _·:Jt...£-

~

, 2015.

.

I

""'.

or the State of Texas

I oEANAAYLOR

MY COMMISSION EXPIRES

AUgUst 26, 2015

I

I EXHIBIT

-\

I

I

I

I

I

I

I

,I

I

I

I

,

,I

I ,'

I AFFIDAVIT

I THE STATE OFTIP(AS

I

I

BEFORE M~, the undersigned authority on this day appeared: LCttl S0.. Pe.(Jd. eJ{"

I !

'

. i

i

0/l.tt}.)" l ,~(; £ County, Texas, hereinafter called "Affiant", who ~r by me

I

I being first duly sjlvom did depose and say as follows:

I ~ f\~ms- ~'::> \.r~~Q,. 2s: Me x I\ am ~e dru JtJ11-tr

I o\ ~cw{c\ ?ec~e__r, + c1Y?\le my clc&c\ iD o..nd Pxhm

\NDX'D t')€.,\fV~ [iQ~. \.\e c\\ or\\:- 'y)Q\J e ±\o e; h.e<yS

I ti::J --tb~ inD'fl 1 lo2£ Y.:l.C\c\. -lil v::x!'l\; 0'!\ '01>:< Y.h[lSS ±rl

I Cg{\\)R -1p

DQQo ±be doors ot 111 e.._ ;Shop., l, lQt15> a\ wety.s

M ro u5 din d·~ jD\f\ a:t \'bo 'hex ':S ... \ \rJfXl +: to QJ .l c£ his

I )'be£M u~ cv j-tlo d1C\f \Cll0'j£X' fJYJJ (:e_ 5vfldil 1 tf12en ±<>ld /1im

1

I ·)

:

· !

- l ' :

1 CL:)K.. __. ·

-\-U-~~~~~.J..l....l..~:,.....u._..w.l.........l.._.li.A.~"8\e._f WD l.L1 d\1\4\Jt. c_a..U-td

I VVL L\.d e ()._ ~ I

\.0 t u.J& VLCl\J e.. tf-e.. '(ext~ e_ .

~T

EXECUTED this tile Sfi+- day of I II 51 f, 2014.

I '

I

I EXHIBIT

I I

I

I .n~me

printed

I II · ~ . ·. ·•

SUBSCRIBED AND SWORN to before me by the said l..a:\1 :->f! 2e A£ie L .this the 6yt(

I Day of; ~014.

1

I

I

I ......:"'\~~~~;,,,,.,

~~o.'*~·····':'~,:-~ BEVERLY FREEMAN

= •

~ ..:.

·.":

: : Notary pu bl'IC, State of Texas

I ~;.;; .. ···i'i

,..,,,,~~~~,,,,...

My Commission Expires

March 14, 201S

I

I

I

I

I

I

I

I

I

I

I

I

I .

('

I

I

I

I

I

I

II

I

1-

I

I

I

I

I

,

I

I

I Affidavit of Kenny Pigg

I The State of Texas

County of Orange

I BEFORE ME, the undersigned authority on this day personally appeared Kenny Pigg, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

did depose and say as follows:

I "My name is Kenny Pigg. I have been by Baker's Transmissions on many occasions. I have

I been by when they were closed and when they were opened. In all of the years that I have been

I doing business and been friends with this group, I have never been by there when the shop was

opened without one of the family members being present."

I EXECUTED thisthel!!!ctay of~ 2015.

I

I A 1ant

SUBSCRIBED AND SWORN to before me by the said Quincy Procell, on this the/Jdday

I of~2015.

I

I DEANA AYLOR

MY COMMISSION EXPIRES

August 26, 2015

I

I

I

I EXHIBIT

I

I

I

,

I

I

I

I

I

I·

--I

II

I

I

I

I

I

,

I J

I

I Affidavit of Keith Merritt

I The State of Texas

County of Orange

I

BEFORE ME, the undersigned authority on this day personally appeared Keith Merritt, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

I "My name is Keith Merritt and I am the Sheriff of Orange County, Texas. I have driven by

Baker's Transmissions on hundreds of occasions. I have known Don Freeman for 30 years. When

I the shop is open, the Freemans are always there to the best of my knowledge. I do not recall ever

I seeing the shop opened without one of the Freeman family members being present. I have never been

by the shop and seen it open and only Dave there/'

I EXECUTED this the /5~day of~ 2015.

I

I Affiant

. J-

I rz,::mscRIBED AND SWORN to before me by the said Keith Merritt, on this the ;sf-day

of~2015.

I DEANA AYLOR

MY COMMISSION EXPIRES

I August 26, 2015 Notary Public in ap

State ofTexas

I

I

EXHIBIT

I I __ kL,-v.;....'_'_ _ ·~

I

I

~

I

I

I

I

I

I

II

I

I

I

I

I

I

I

,.

I ;<

I 06/09/2010 08:15 FAX 409 839 8980 CAFS !4J 0002/0006

I Child Abuse & Forensic Senices

SANE Program

I . SEXUAL A~-S~ULT EXAMINATION & FORENSIC REPORT ~RM .

Date:.Time ofExam: f, :fDrm Location: CA£5 ·. SANE:r9.Giansoo C!wrt11: /{)_~ Q't/

I GENERAL INFORMATI<lN (Print or Typ~): ..

!ll"ientNmne: 1\\Q\Qt\,q f\~ducp1 sexLRace: llJ .· ooB:'7· <A2AgeJJ-ss#: (g31/.R ~3~qq

lddress: 319~ fbrtf\~ Oc\lej Ctty:~Q-state: IX Ztp: LJ')le 3,;).__

mePbono:Yo<J- '{'gJ.,-4LJti;?worl<Phono: ~§&1 . ·

[ y we contact you at:_Don't contact borne 6:,rk .Other. (Phone;,~--...J

lual Hoalth Provider \1)\ J\\llii\A 'Ql\J\Y\ . Allergios: . h\\4: D PI-/X.fG 1\J

CurrentMedications:.__l~~...L.-.:~~----------------------,~-~---'----

t a representative from the investigating agency acc~mpany you to Child Abuse & Forensic Services? ( Ye )No

~\I!< )J-gq·t-DV\

Ifyes: Representative Name: . Agency Name: -Q~f -\) D

I• e~::,CI,~S~~Ab.,.e&

Name:JSD. l,\tklf\t£4\f\5Uftl/A

.::~:~f;,"':f!={)~

:u....a..A,p_Zl£...u-.~-

Relationsbip:._N-t=·

l Name: Relationship:

k

.

Name: · . Relationship: · ·

doe; potion! live with? . ()Self ()Moth..- ()Fatlre< ()Both ~ ~\-- Relationship: ~ ~J~ LVL u{tf.li

I

0

atient covered by insurance? ( ~ ()No · ·

mtE: EXamin!!-tion is paid by ref~~yytcy. · Insurance will be filed by Quest Diagnostic lab work is indicated. .

• . ~yes, Nome ofrn.urnnce: ~C ruii Phone#: ID#:

~--Other: (Phone:. _ _ _-'

Child Abuse & Forensic Services,· 810 Hospital Drfve, Suite 190, Beaumont, TX 77701

409-832-:fJ4i1 (office) 409-839-8980 (fax) 409-'895-7550 (after hour~

EXHIBIT

l_X

___ ____;_

I

06/09/2010 08:15 FAX 409 839 8980 CAPS 1410003/0006

11

r· AUTHORIZATION:

.

1. I hereby authorize the Sexual Assault Nurse Examiner (SANE) representative at Child Abuse & ForensiC Services

to perform a medical forensic e~tion for evidence ofphysical and/or sexual abuse and request medical

I treatment if in<llcated. I understand this may include the following: . .

• Medical forensic examinati.on of the genital area, which may include pelvic (internal) examination on post-:

pubertal females.

I • Collection of blood, urine, tissues and related specimens as needed.

• Photographs which may include the anogenital area for the purpose of doctunentation.

I nnderstand that the examination I ani about to receive is performed by a forensic nurse examiner. The forensic

nurse examiner will refer me to the emergency department of my choice for medical treatment by a physician if

indicated. .

ja I ~er Un.derstand and authorize all medical reports, including laboratory reports, photographs and forensic

'

1 results to be released to Child Protective Services, and/or the police department and the District Attorney having

jurisdiction, or as otherwise allowed by law. }/

ltient/Pm:-ent/Guardian lo ~ J.-/O

jtc::A.._ Date:

litness ~ignature:--.>::j~~-=--=--+-+-l..J-.::::.__:__ ____..:.~~~~:..1..04..!..-..--"Date: . & s~ I 0 r

r Office Use Only .

l w Enforcement: Case#: /0 13 / )

Are they the Referring Agency?

.L/ ln~ator: f.J.~. k.Jw.l:;-Wy]

~ ()no

I Agency:~ ~ED County: fMwzy. Phone:'fi8 //lfi;J Fax: qrJ -71/Jt/

I S: Case#:

Are they the Referring Agency?

·Case Worker: _ _ _ _ _ _ _ __

( )yes ()no

I Agency: _____________________.Phone:_ _ _ _..,..--'Fax:._ _ __

I

I

I

I

I Child Abuse & Forensic Services, 810 Hospital Drive, Suite 190, Beaumont, TX 77701

409-832-0411 (office) 409-839-8980 (fax) 409-895-7550 (after hours)

l2of5

I

06/09/2010 08:15 FAX 409 839 8980 CAFS 1410004/0006

I

I llL . MEDIC..-\t IIISTORY: ·. . ../

. 2. ~Uil!Analm~.

1. Last normal periOd: . · ·~ .(tJNA · ·.·

I Surgical ___:__.=~~;-~:..::::....·.;.).::,__.. :. ·. . .,.·_._:_.

p . -----,.L-_.--=-··:._·------:---"'--:'-:,..__;'----

3. go~i~tiom:__~~~~~~---~--~~~~~~--~--~~-------

1 IV. ·- ~SAULT/ABUSE: Sorm;eof~stOcy

HISTORYOF

I. Docum~t history given by patient.

Identify solUte when

.Child ()Parent · ( )Ot;her________

including additional i.¢'onnation:

~-i.. :Did~me-~e:· . . Bleedirig? ._· .-: S -(~) ()NO{~

. -- - . · ·. Pairi? .. - _ .r ." ·· (-

)NO :.( ). UNK _ ( .. _ .

3. Histo_ry- of-ejaeul~~ (Crrcle one)D"':'~~ ·__ - · ( . _ ( )li.$)' _( ) UNIC_(- ) Probable/Possible -Site(s):_ _·

1 4. Condom Used? (Circle o.ne) ( )YES -(0NO · ( ). UNK.-- _: -·. - · ·- . · .- : · -

_·(rbld/~-J ·"

1

~·- ~~er:k~~s~ ·()YES (0NO {')·~----- - ·. --· - · -. .:

7' suspectS relationsW,p to Victim: . . . - .· / . . . -

..

This text is long and has been trimmed here. Open the source document for the complete record.