Reed, Rodney

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-50,961-10

EX PARTE RODNEY REED, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 8701

IN THE 21ST DISTRICT COURT

BASTROP COUNTY

MCCLURE, J., delivered the opinion of the Court in which KELLER, P.J.,

HERVEY, RICHARDSON, YEARY, KEEL, and SLAUGHTER, JJ., joined. WALKER, J.,

dissented. NEWELL, J., did not participate.

OPINION

In May 1998, a Bastrop County jury found Rodney Reed guilty of the capital murder

of nineteen-year-old Giddings resident Stacey Lee Stites. 1 The indictment alleged that in

April 1996, Reed strangled Stacey to death in the course of committing or attempting to

1

Our recitation of the guilt-phase evidence, infra p. 4, is adapted from our opinion

disposing of Reed’s second subsequent 11.071 application. See Ex parte Reed, 271 S.W.3d 698,

702–12 (Tex. Crim. App. 2008); infra p. 29. In keeping with the naming convention used in that

opinion, we refer to the victim in this case as “Stacey” and her mother as “Carol.”

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commit kidnapping and aggravated sexual assault. At the trial’s punishment phase, the

State introduced evidence linking Reed to five extraneous sexual assaults predating April

1996 and one attempted sexual assault in November 1996. Several of those assaults bore

similarities to Stacey’s murder. The jury answered the statutory special issues in favor of

the death penalty, and the trial judge sentenced Reed to death.

In the years that followed, continuing through this proceeding, Reed has made

multiple efforts to have his capital murder conviction overturned. He has primarily (but by

no means exclusively) advanced the theory that he is innocent of Stacey’s

murder—specifically, that the biological evidence linking him to Stacey’s body was

deposited there because he and Stacey were in a consensual sexual relationship and that

Stacey was actually killed by her jealous and domineering fiancé, Jimmy Fennell.

In this opinion, we explain why Reed’s latest attempts to demonstrate his innocence,

both substantively under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), and

procedurally under Article 11.071, Section 5(a)(2) of the Texas Code of Criminal

Procedure, 2 do not warrant relief. We also explain why Reed has failed to prove that the

State suppressed material evidence at the time of trial in violation of Brady v. Maryland,

373 U.S. 83 (1963), or that the State presented materially false testimony at trial in violation

of Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). Ultimately, we deny relief

and dismiss any remaining claims as abuses of the writ.

2

Unless otherwise indicated, all mentions of “Articles” in this opinion refer to the Texas

Code of Criminal Procedure, and all mentions of “11.071 applications” (or simply

“applications”) refer to applications for a writ of habeas corpus filed pursuant to Article 11.071

of the Texas Code of Criminal Procedure.

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I. OVERVIEW OF THE PRESENT LITIGATION

Reed filed his ninth subsequent (-10) 11.071 application in November 2019. He

raised four claims: (1) a Brady claim; (2) a false testimony claim; (3) an ineffective

assistance of counsel (IAC) claim; and (4) a claim that he could prove his innocence both

substantively under Elizondo, 947 S.W.2d at 209, and as a gateway for reaching other

constitutional claims under Article 11.071, Section 5(a)(2). We concluded that Reed’s

Brady, false testimony, and actual innocence claims (claims one, two, and four) satisfied

the requirements of Article 11.071, Section 5. Accordingly, we remanded those claims to

the habeas court “for further development.” Ex parte Reed, No. WR-50,961-10 (Tex. Crim.

App. Nov. 15, 2019) (not designated for publication).

The habeas court held an evidentiary hearing in July 2021, focusing mostly on

Reed’s most recent actual innocence claims. Reed called nineteen witnesses at the hearing;

the State called twenty-nine. At the -10 hearing, the habeas court admitted what it later

described as “numerous exhibits.” On October 31, 2021, the habeas court made

recommended findings of fact and conclusions of law (FFCLs) which, if adopted, would

have us deny relief on all of Reed’s remanded claims.

Among the “numerous exhibits” admitted at the -10 hearing were the records from

Reed’s trial and all of his prior state habeas proceedings. The habeas court’s decision to

admit these records was consistent with this Court’s actual innocence jurisprudence. See,

e.g., Ex parte Reed, 271 S.W.3d 698, 733–34 (Tex. Crim. App. 2008) (analyzing an actual

innocence claim requires a court to “make a holistic evaluation of all the evidence, old and

new, incriminating and exculpatory, without regard to whether it would necessarily be

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admitted under rules of admissibility that would govern at trial”) (internal quotation marks

omitted) (quoting House v. Bell, 547 U.S. 518, 537–38 (2006)). The upshot is that for us

to fairly grapple with Reed’s most recent actual innocence claims (not to mention his Brady

and false testimony claims), we must first review all the evidence.

II. BACKGROUND

A. Trial (Guilt Phase)

The trial evidence showed that Stacey began working as a cashier and bagger at the

Bastrop H-E-B grocery store in October 1995. In January 1996, Stacey and her mother

Carol Stites moved to Giddings so that Stacey could live with her fiancé, Jimmy Fennell,

a Giddings Police Department (GPD) patrol officer. Stacey and Fennell started dating a

few weeks after they met at the May 1995 Smithville Jamboree—and according to Carol,

they were “inseparable from that night on.” By December 1995, Stacey and Fennell were

engaged. Eventually, Stacey, Carol, and Fennell moved into the Rolling Oaks Apartments

in Giddings. Stacey and Fennell shared an apartment on the second floor; Carol lived in a

separate apartment just downstairs and “[c]atty-cornered” from Stacey and Fennell’s.

With a wedding planned for May 11, 1996, Stacey transferred to the H-E-B’s

produce department to earn more money. The new assignment required Stacey to report to

work at 3:30 a.m. to stock produce for the day. Stacey would usually wake up between

2:45 to 2:50 a.m., taking anywhere from five to twenty minutes to get ready for work. For

work, Stacey wore blue pants, a white undershirt, and a red shirt with an H-E-B insignia

on the front. She would typically leave her apartment wearing her pants and undershirt,

and she would carry her red shirt to her vehicle along with a plastic cup of juice or water.

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Although Stacey had access to Carol’s Ford Tempo, she routinely drove Fennell’s

red Chevrolet S-10 extended-cab truck to work. When commuting to work, Stacey would

take Highway 290 to Highway 21 and then Loop 150/Chestnut Street over the railroad

tracks into Bastrop. The drive took approximately twenty-five to thirty minutes, with

several stop signs, red lights, and at least one train crossing along the way—plenty of spots

where a vehicle would have to come to a stop. When she finished her shift in the early

afternoon, Stacey would usually go to Carol’s apartment, take a nap, and then get up and

work with Carol to prepare for the upcoming wedding.

On April 22, 1996, after finishing her shift and leaving work, Stacey arrived at

Carol’s apartment early in the afternoon. She ate lunch and took a nap. Fennell came home

from work a few hours later. Because he had borrowed Carol’s Ford Tempo that day,

Fennell returned Carol’s extra set of car keys to her by placing them on a shelf in her

apartment. The three then briefly discussed their schedules for the following day. Stacey

was scheduled to be at work at 3:30 a.m.; Fennell was not scheduled to work. Fennell and

Stacey were planning to go to the insurance company (to add Stacey to Fennell’s insurance

on the truck) and the florist. When Fennell said he could drive Stacey to work, Carol replied

that Stacey could drive herself to work and that she (Carol) could take Fennell to Bastrop

in the afternoon—that way, Fennell could sleep in. Fennell declined Carol’s offer, stating

that he would rather drive Stacey to work himself.

Fennell then left in his truck to coach a little league baseball team with his friend

and fellow GPD patrolman David Hall. Fennell returned to Carol’s apartment between 8:00

and 8:30 p.m. Stacey met Fennell outside of Carol’s apartment and, according to Carol, the

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two ran upstairs laughing “as hard as they could.” They seemed “happy, very happy, and

in love.”

According to Fennell, when he and Stacey returned to their apartment that evening,

they showered together. Although Stacey was taking birth-control pills, the two did not

have sex that night because, as Fennell put it, the “vitamin” pills Stacey was taking at that

point in her prescription cycle allowed for a greater possibility of pregnancy. They also

revisited their plans for the 23rd. Abandoning their earlier plan, Stacey and Fennell agreed

that Stacey would take Fennell’s truck to work and that Carol would take Fennell to meet

Stacey in Bastrop when her shift ended. According to Fennell, Stacey went to sleep around

9:00 p.m., while he stayed up and watched the news.

The next morning, April 23, Stacey’s coworker Andrew Cardenas arrived at the

Bastrop H-E-B parking lot at around 3:30 a.m. and waited for Stacey to arrive. Cardenas

would usually wait in his car for Stacey to arrive so that they could “keep an eye on each

other, to make sure nobody was around and walk inside the store together.” Cardenas

regarded Stacey as a punctual employee, and when she failed to show up for work, he

became concerned. Cardenas eventually went into the store to start his shift, but he kept an

eye out for Stacey.

At 5:23 a.m., while on routine patrol, Bastrop Police Department (BPD) officer Paul

Alexander spotted a red pickup truck parked in the Bastrop High School parking lot.

Mindful that the truck was not parked there during his previous patrol of the area and that

there were no other vehicles in the lot, Alexander contacted the dispatcher for a stolen-

vehicle check. The dispatcher reported that the truck was registered to a “Fennell out of

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Bastrop.” When Alexander looked inside the cab with his flashlight, he noticed that the

driver’s seat was reclined and that there were books and clothing on the seats. Outside the

driver’s side door, on the ground, Alexander observed a small piece of a broken belt with

a buckle. Alexander often saw “loose stuff” (wallets, shoes, books, etc.) left by students in

the school parking lot, so he “just didn’t think much” of the belt at the time. After noting

that there was no shattered glass, that the ignition was intact, and that the driver’s side door

was locked, Alexander concluded that nothing was out of order and went back on patrol.

Still waiting for Stacey to arrive at work, Cardenas finally decided to call Carol

between 6:30 and 7:00 a.m. When Cardenas told Carol that Stacey had not shown up for

work, Carol became upset. She immediately called Fennell on the phone, waking him up.

Carol told Fennell that Stacey had not made it to work. Fennell rushed down the stairs,

putting on a shirt on the way down. He told Carol to call the authorities and tell them that

he was going to look for Stacey. Carol had both sets of keys to her car, so Fennell took

Stacey’s set and left in Carol’s Tempo to look for Stacey. Fennell drove from the Rolling

Oaks Apartments to the Bastrop H-E-B and back, but there was no sign of Stacey or the

truck. Meanwhile, Bastrop authorities had also started looking for Stacey.

At approximately 9:00 a.m., after authorities received the missing-persons report,

BPD investigator Ed Selmala was dispatched to the Bastrop High School parking lot. Upon

arrival, Selmala notified other law enforcement officers of the truck’s location. While

Bastrop authorities photographed the truck and documented other pieces of evidence, BPD

officer Alexander was called back to the station to prepare a report as to why he had run

the license plate on Fennell’s truck earlier that morning.

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Fennell’s truck was initially taken to a local tow shop. Authorities asked Fennell to

identify various items found in and around the truck. Fennell observed several things that

were “out of the ordinary”:

• One of the tennis shoes that Stacey normally wore to work was on the floorboard

of the passenger’s side of the truck;

• There was a foamy substance resembling saliva on the carpet covering the hump

over the truck’s transmission;

• There were broken pieces of green plastic in the console from the type of cup

that Stacey usually took with her in the truck;

• The driver’s seat was reclined at a forty-five-degree angle;

• The driver’s seatbelt was buckled; and

• There was a smudge on the passenger-side back window.

Fennell also identified several items found outside the truck:

• Carbon copies of checks from his checkbook; and

• The piece of the belt with a buckle attached, which Fennell told investigators

was part of the belt that Stacey normally wore to work.

Fennell’s truck was later taken to a DPS garage in Austin, where a crime scene team began

to process it for evidence. The team paused their initial search of the truck when Stacey’s

body was found.

Passing motorist Kenneth Osborn came across Stacey’s body at around 2:40–

2:45 p.m. in the “bar ditch” running alongside Bluebonnet Drive, a circular dirt road that

enters and exits on FM 1441 in Bastrop County. When Osborn approached Stacey’s body

(which was visible from the roadway), he quickly realized that she was dead. He got back

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into his vehicle, stopped at a nearby house, called the police, and then went back to

Bluebonnet Drive to wait for the authorities.

BCSO investigator John Barton was one of the first law enforcement officers on the

scene. He covered Stacey’s body with a heavy blanket to prevent the media, circling above

in a helicopter, from taking photographs. He also closed off the crime scene and began

taking pictures of the area and Stacey’s body. Shortly thereafter, Bastrop authorities, under

the supervision of Texas Ranger L. R. “Rocky” Wardlow, called in DPS Crime Lab

employees to process the scene.

The crime-lab team arrived at the Bluebonnet scene at approximately 5:12 p.m.

Karen Blakley, who specialized in DNA and serology, was designated the team leader. The

team included a trace analyst, a photographer and videographer (who recorded some

portions of the crime scene investigation), a latent-print examiner, and a trainee in serology

and DNA.

According to Blakley, Stacey’s body was “propped up in a manner by a small

mound of dirt that made her body sort of roll to one side, but it wasn’t completely rolled,

it was twisted so the upper part of the body was flat and her legs were folded over and her

arms were above her head.” Stacey was missing a shoe, but the bottom of her sock was

clean, suggesting that she had not walked shoeless outside. An H-E-B name tag with the

name “Stacey” was tucked in the crook of her leg. A white T-shirt, which Fennell later

identified as belonging to him (but which, according to Fennell, both he and Stacey would

occasionally wear), was strewn over some brush near Stacey’s body. Stacey was clothed

in a black bra and a pair of blue pants with a broken zipper.

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Stacey’s underwear was wet in the crotch and bunched around her hips. Viewing

this as indicative of sexual assault, Blakley tested Stacey’s vagina for the presence of

semen. The initial test yielded a positive result. Blakley then collected additional swabs

from Stacey’s breasts, and a positive amylase test suggested that there was saliva on

Stacey’s breasts. Because rigor mortis had set in, Blakley could not determine if Stacey

had been anally penetrated. “She was already very stiff, and in order for me to try to get to

the anal area I could possibly cause injury or further damage and make it look like she had

suffered something that she didn’t.”

According to Blakley, it “looked like a great force had been applied” to Stacey’s

neck. There was a mark on Stacey’s neck that “was like an indentation but red, like it had

cut into her skin.” Significantly, there was a piece of webbed belt near Stacey’s body on

the side of the road. Its weave had a pattern resembling the mark on Stacey’s neck. When

the piece of belt found at the high school was brought to the scene, Blakley compared the

two and concluded that they matched.

Documenting other injuries to Stacey’s body, Blakley observed that there were

scratches on Stacey’s abdomen and arms, a wound resembling a cigarette burn on her arm,

and shallow wounds on her wrists and back that looked like fire-ant bites. There was also

a brown, leathery patch of skin, stiff to the touch, underneath her bra. There were abrasions

on Stacey’s abdomen consistent with the shape of a seat belt. There was “a green

discoloration like an old bruise running down … her jawline.” There were bruises around

her thighs consistent with “bump[ing] into a desk or something sharp [or box-like], right

around the thigh area.” And there were bruises on at least one of her arms, one of them

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seemingly fingernail-shaped. Blakley also documented a large amount of mucus running

from Stacey’s nose, down the side of her face, and into her hair.

To Blakley, this did not look like a crime of passion. She did not see multiple

defensive wounds, and to her the crime scene looked “very clean.” There were no

indications that Stacey’s body had been there very long. However, the green blanket that

Barton had placed over Stacey’s body had “attracted the heat and made a humid condition

underneath,” keeping it “wet and warm.” There were areas where “the upper layer of

[Stacey’s] skin” was visibly “sloughing off.” Blakley stated that this was all part of “the

process of decomposition.” Blakley also noted the lividity pattern on Stacey’s body:

“[T]hat’s when the blood pools to the lowest point of the body, and it causes a red mottling.

It’s kind of spotty but generally red, and that is normal in a deceased person.”

Terry Sandifer, the latent-fingerprint examiner, collected two Busch beer cans from

an area across the road from where Stacey’s body was discovered. When Sandifer

processed the cans for fingerprints, she could not find any that were suitable for

comparison.

Blakley returned to the lab that evening (April 23) at around 11:00 p.m. so that she

could look at the vaginal swabs under a microscope. When she did, Blakley discovered

intact spermatozoa—sperm cells with the “tails” still attached—which, in Blakley’s

opinion, indicated that the sexual activity was fairly recent. Blakley based this conclusion

on “published documentation” stating that “26 hours is about the outside length of time

that tails will remain on a sperm head inside the vaginal tract of a female.” At trial, Reed’s

defense team tried to impeach Blakley on this point, but she rebuffed their efforts:

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Q. The published documentation that you’re referring to, would that be

an article from 1981?

A. Yes, it would.

Q. By Mr. Willot[t] and Allard?

A. Yes.

Q. And in that study, did they also say that internal vaginal swabs, you

can find semen up to 120 hours later?

A. That is semen, and all components of semen.

Q. And by your testimony you’re saying that intact semen up to 26 hours,

is that the figure you gave?

A. That’s intact sperm, up to 26 hours.

Blakley quickly reported her findings to Ranger Wardlow. Wardlow viewed the presence

of semen as a “smoking gun,” surmising that the evidence of sexual assault gave the

perpetrator a motive to kill. Wardlow theorized that identifying the man who left the semen

would lead the authorities to Stacey’s killer.

Roberto Bayardo, the Travis County Medical Examiner, autopsied Stacey’s body

the following afternoon, April 24, at 1:50 p.m. “Based on changes that occur after death in

the body,” Bayardo estimated that Stacey died “around” 3:00 a.m. on April 23, “[g]ive or

take one or two hours.” Bayardo noted that Stacey had pre- and post-mortem injuries. He

differentiated between the two based on the absence of bleeding. Once the heart stops

beating, there is no more bleeding and no more bruising. The wrist burn occurred after

Stacey died, as did several scratches. Although Stacey’s skull showed no outward signs of

injury, Bayardo’s internal examination revealed multiple bruises that “had the appearance

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of injuries sustained by being struck on the head with the finger knuckles with a closed

hand.” Comparing the injury pattern on Stacey’s neck with the pieces of webbed belt

collected by authorities, Bayardo concluded that the belt was the murder weapon and that

Stacey died as a result of asphyxiation caused by strangulation. He stated that asphyxiation

takes approximately three to four minutes and that a person becomes unconscious within

one to two minutes.

Because of the circumstantial evidence indicating sexual assault, Bayardo took

vaginal swabs. Viewing the swabs under a microscope, Bayardo observed intact

spermatozoa. To Bayardo, this suggested that the sperm had been introduced into Stacey’s

vagina “quite recently.” Bayardo then took rectal swabs and viewed them under a

microscope. Bayardo saw structures that looked like spermatozoa heads.

Visually examining Stacey’s rectal area, Bayardo noticed that her anus was dilated

and that there were some superficial lacerations on the posterior margin. In Bayardo’s

opinion, this was consistent with penile penetration. Based on his education and experience

in determining whether a particular injury occurred before or after death, Bayardo

concluded that Stacey sustained the injury to her anus at or around the time of her death

and that the penetration was nonconsensual.

Because Blakley had prior commitments, DPS analyst Wilson Young took over the

serological duties on April 24. Young conducted DNA testing on Stacey’s blood, the

vaginal and anal swabs, and the substance on Stacey’s underwear. Generating DNA

profiles from these samples, Young theorized that there was a single semen donor.

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Conducting DNA testing on the saliva found on Stacey’s breasts, Young concluded that

the saliva belonged to the same individual who deposited semen in Stacey’s vagina.

Young also helped to process Fennell’s truck on April 25, accompanied by Sandifer

(the latent-print examiner) and Ranger Wardlow. Blakley joined them the next day. In

processing the truck and the carbon copies of Fennell’s checks for prints, Sandifer did not

discover anything remarkable. She could find only a few items with prints suitable for

comparison. When she examined those prints, she was either unable to make a match or

identified the prints as belonging to Stacey or Fennell. Young, meanwhile, was looking for

blood or semen, but he did not find any. Although Young collected other items, including

a portion of the mucus-like substance on the carpet over the transmission hump, he did not

find anything that would help identify the perpetrator. Blakley, having seen Stacey’s body,

noted that the substance on the transmission hump looked similar to the mucus she had

seen flowing from Stacey’s nose.

Young, Wardlow, and Blakley all noted the reclined position of the driver’s seat and

the fact that the driver’s seatbelt was fastened. Wardlow specifically noted the lap belt’s

“downward bow”; to Wardlow, it looked like someone had sat on top of the belt. The three

then tested whether it was possible to pull a person from the driver’s seat with the person

buckled in. Putting Blakley (who was close to Stacey’s height and weight) in the driver’s

seat, Wardlow and Young took turns pulling her from the vehicle by either the feet or the

shoulders. Each time, Wardlow and Young were able to easily remove Blakley from the

truck. Further, when Young, who was six-foot-two, sat in the reclined driver’s seat and

looked in the rearview mirror, he noticed that he had a clear view out of the back window

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of the truck. When DPS finished processing the truck, it was returned to Fennell, who

immediately took it to the dealership and traded it in.

Over the next eleven months, authorities focused their investigation on people that

Stacey knew, and with a $50,000 reward offered by H-E-B, the leads came pouring in. For

instance, a newspaper delivery person reported that Stacey’s body was not on Bluebonnet

Drive at around 4:00 a.m., when he drove by the site where her body was found. In all,

officials interviewed hundreds of people, including Stacey’s former classmates,

boyfriends, and coworkers. Over twenty-eight male suspects were identified, some

immediately and some during the ensuing investigation. Each suspect was asked to give

blood, hair, and saliva samples. With the exception of one, Brian Haynes, all of the suspects

agreed to provide samples. Although Haynes refused to consent, he was compelled to

provide samples after authorities obtained a search warrant. Authorities also requested and

obtained samples from David Hall (who, because of his friendship with Fennell, was at one

point viewed as a suspect), but DNA testing excluded him as the semen donor.

As the last known person to see Stacey alive, Fennell was deemed a suspect from

the start. Despite this, authorities never searched Fennell’s apartment. However, Fennell

was vigorously interrogated on several occasions. Fennell also voluntarily provided

authorities with a blood sample, and even though DNA testing excluded him as the semen’s

donor, authorities still tried to make a case against him. Ruling out the possibility that

Fennell used Carol’s Tempo to facilitate the offense, authorities investigated alternative

methods of transportation—they did not believe that Fennell could have walked the twenty-

five to thirty miles from Bastrop to Giddings between 3:00 and 6:45 a.m. Ranger Wardlow

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examined taxi records and the mileage on all of the GPD’s vehicles, but this investigation

revealed nothing. And although authorities canvassed the Rolling Oaks Apartments

looking for anyone with useful information about the morning of April 23, no one reported

being awake and about that morning. Finding no evidence to support Fennell’s involvement

in the crime, authorities ultimately eliminated him as a suspect.

David Lawhon emerged as a suspect when authorities discovered that he had

murdered an Elgin woman named Mary Ann Arldt a few weeks after Stacey was killed.

Investigators also received information that Lawhon had bragged about killing Stacey. A

few people informed authorities that Lawhon and Stacey had been in a relationship, but

authorities were unable to confirm any connection between the two. Lawhon was

eventually excluded as the semen’s donor through DNA analysis and eliminated as a

suspect.

Investigator Selmala also became a suspect in August 1996 after he committed

suicide in his home. Ranger Wardlow investigated Selmala’s death. A note written by

Selmala’s girlfriend was found by his body. The note suggested that Selmala was distraught

over his relationship with his girlfriend. Ultimately, Wardlow found no evidence

suggesting that Selmala was involved in Stacey’s death. Even so, Wardlow, anticipating

that someone might try to link Selmala’s suicide to Stacey’s murder, obtained a blood

sample from Selmala’s body and submitted it to DPS for testing. DNA testing cleared

Selmala as a suspect. Ultimately, all of the other potential suspects were excluded as a

result of DNA testing.

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Eventually, officials received information that led them to Rodney Reed, a Bastrop

man who was approximately the same height as Young. At trial, officials testified that,

throughout their investigation, they found nothing to indicate that Stacey knew Reed. Reed

lived in the City of Bastrop, on Martin Luther King Drive, near the railroad tracks. Several

of Reed’s family members and friends, as well as his girlfriend, lived nearby. Bastrop High

School was also located near the railroad tracks, about six-tenths of a mile from Reed’s

house.

Reed was frequently seen by BPD patrol officers walking in the area near his home

late at night. BPD officer Michael Bowen, when he worked the night shift in 1995 through

the early part of 1997, would see Reed almost every night between 9:00 p.m. and 3:00 a.m.

or 4:00 a.m. When Bowen saw Reed, he was often walking along the railroad tracks. BPD

officer Steven Spencer also reported “[o]ccasionally” seeing Reed in the early morning

hours walking near the All Star Grocery, which was located at Loop 150/Chestnut and

Pecan Street.

When investigators learned that DPS had a sample of Reed’s DNA on file, they

requested a comparison between Reed’s DNA and the DNA developed from Stacey’s

vaginal swab. Michelle Lockhoff, a DPS DNA specialist, conducted DNA testing on the

samples. When Reed’s profile was compared with the sample taken from Stacey’s body,

Reed could not be excluded as the semen’s donor.

BPD investigator David Board interviewed Reed after learning that the preliminary

DNA results could not exclude him as the semen’s donor. Board withheld the results of the

DNA testing and Mirandized Reed, who waived his rights and gave a written statement. In

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it, Reed stated, “I don’t know Stacey Stites, never seen her other than what was on the

news. The only thing that I do know is what was said on the news is that she was murdered.”

Pursuant to a search warrant, Reed’s blood was drawn and turned over to the DPS lab.

Lockhoff subjected this sample to another, more discriminating type of DNA

testing. Once again, Reed could not be excluded as the semen’s donor. Because DPS’s

testing could not exclude Reed, DPS asked LabCorp, an independent lab, to conduct

additional testing. Meghan Clement, the director of LabCorp’s forensic identity testing

department, received DNA samples from Stacey and Reed and conducted the requested

tests. Like Lockhoff, Clement could not exclude Reed as the semen’s donor. Recalling her

prior experience as a serologist working on sexual-assault cases, Clement later testified

that she had never found intact sperm more than twenty-four hours after commission of a

vaginal sexual assault.

At trial, Reed mounted a two-prong challenge to the State’s evidence. First, Reed

sought to show that he and Stacey had been in a romantic relationship, and that his semen

was present in Stacey’s body because he and Stacey had had consensual sex. In her opening

statement, Reed’s trial lawyer stated, “There was interracial dating in this case, and you

will hear from people who will talk to you about the fact that there was a secret affair.”

Second, Reed pointed to the possibility that someone else (particularly Fennell or Lawhon)

had killed Stacey.

To prove a romantic relationship between himself and Stacey, Reed called Julia

Estes, a Bastrop County resident and Reed family acquaintance, to testify. Estes stated that,

sometime in early 1996, she saw Stacey and Reed chatting inside the Bastrop H-E-B. Estes

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testified that she recognized Stacey from seeing her in the store and conversing with her.

On cross-examination, Estes acknowledged that Reed and Stacey were just talking—it did

not necessarily suggest a “secret affair” between them.

Reed also called Iris Lindley, a longtime friend of Reed’s parents, to the witness

stand. Lindley testified that, in early 1996, she was sitting on the porch at Reed’s house,

visiting with Reed’s mother, when a woman drove up to the Reed household in a gray

truck. When the defense asked Lindley to elaborate, the following exchange took place:

Q. Can you describe the person who approached?

A. Well, she was maybe 5’5”, she had dark brown hair, she was kind of

heavy, on the heavy side, not too heavy, and when she walked up she

asked for Rodney and Ms. Reed told her Rodney wasn’t there, and she

said would you tell Rodney that Stephanie come by.

Q. Who came by?

A. Stephanie.

Q. Stephanie?

A. Uh-huh. Stacey or Stephanie.

Q. I’m sorry, Ms. Lindley, what did she say her name was?

A. Stacey.

The defense showed Lindley Stacey’s driver’s license and asked if she “look[ed] like the

young lady that came by.” Lindley responded that “she was a little heavy-faced.” The

defense then showed Lindley a picture of Stacey standing next to Carol. Lindley stated that

the woman in that picture looked like “the young lady” in question. To Lindley, it seemed

REED — 20

like the young lady was looking for Reed “kind of like how a girlfriend looks for a

boyfriend.”

As mentioned, Reed also sought to show that someone other than himself might

have murdered Stacey, focusing primarily on Lawhon and Fennell. Regarding Fennell,

Reed hammered the Bastrop authorities’ failure to adequately investigate him. Specifically,

Reed showed that almost all of the information the authorities had gleaned about Stacey’s

whereabouts before she died, her routine and habits, and the items in Fennell’s truck, came

from Fennell himself. Reed also emphasized that investigators did not search Fennell and

Stacey’s apartment for evidence.

Tami Hannath, one of Stacey’s high school friends, described Fennell as “a little bit

more possessive” than Stacey’s prior boyfriends. Hannath recounted an incident in which

Fennell seemingly made Stacey hang up the phone (or disconnected the line himself) when

he overheard her making plans to go out. Hannath also vaguely suggested that Fennell had

once slashed Stacey’s tires. The defense also tried to present the jury with evidence that, in

October and December 1996, Fennell failed two separate polygraph examinations relating

to Stacey’s murder—but the trial judge sustained the State’s objections to that evidence.

Finally, Reed presented his own DNA expert, Dr. Elizabeth Ann Johnson. Johnson

conducted independent DNA testing on the semen and saliva found on Stacey’s body. Her

testing generated results that were consistent with DPS’s—Reed could not be excluded as

the semen/saliva donor. However, Johnson challenged the State’s theory that Stacey was

anally penetrated before she died. Specifically, Johnson testified that vaginal drainage,

REED — 21

which may cause semen to be deposited in “surrounding area[s],” can occur when a body

is moved after intercourse.

To rebut the defense’s suggestion that Fennell had something to do with Stacey’s

death, the State called former BPD police chief Ronnie Duncan. Duncan testified that he

interviewed Fennell on the morning of April 23, 1996. During that interview, Fennell

appeared to be “very concerned” for Stacey (who, at that point, was still missing). Later

that morning, Duncan showed Fennell the piece of Stacey’s belt found near the truck. At

that point, Fennell’s facial expression “went from concern to probably fright.” He was not

crying, but he was “visibly upset.” And he “br[oke] down” shortly thereafter.

The State also recalled Karen Blakley to undermine the defense’s “drainage” theory

of how Reed’s DNA might have ended up in Stacey’s anus. Blakley explained that part of

the forensic work she did in this case was “mapping” the pattern of semen on Stacey’s

underwear. Blakley testified that this “mapping” revealed “four small, maybe less than

dime-sized spots” of semen on Stacey’s underwear. The pattern was not consistent with

what Blakley would expect to see with vaginal drainage. Based on the pattern and amount

of semen on Stacey’s underwear, Blakley surmised that “there wasn’t much activity” or

“movement” of Stacey’s body after the sexual intercourse in this case.

Blakley also clarified her earlier testimony regarding the longevity of intact sperm

in the vagina:

Q. [W]hat is the outside area of time that you would expect to find intact

spermatozoa in the vaginal cavity?

REED — 22

A. In a living woman, I would expect to find intact sperm, that means

sperm with their tails still [on], no longer than 24 to 26 hours. That’s

in a living person.

Blakley conceded that she was aware of “one case where sperm was found in a body after

16 days.” But in that case the victim was murdered in the mountains of Utah at a very high

elevation and a very low temperature. Therefore, “the body was pretty much chilled as if

[it] were in a refrigerator the entire time up to the 16th day they were able to find sperm.”

Other than “that one anomaly,” Blakley was not aware of “anything contrary to what [she

had] testified to.”

In closing, the State relied on Blakley’s intact-spermatozoa testimony to argue that

Reed sexually assaulted Stacey in the early morning hours of April 23:

At eleven o’clock that night [Blakley] goes back to the lab, she puts [the

vaginal swabs] under the microscope and bingo, she finds three fully intact

spermatozoa. At that point she knows what she’s got there. We all know what

she’s got there. Because we know, from the credible evidence, that that

doesn’t hang around for days on end. We know from the credible evidence

that … that semen got in that girl’s body within 24 hours of that eleven

o’clock moment. Which is when? On [Stacey’s] way to work.

***

We don’t know how long prints last anywhere. They can last years. Semen,

on the other hand, can be dated. And semen, specifically spermatozoa, only

stays there about 24 hours.

The jury found Reed guilty of capital murder, and the trial proceeded to the punishment

phase.

B. Trial (Punishment Phase)

At the punishment phase, the State presented evidence that:

REED — 23

• In August 1987, Reed physically and sexually assaulted a nineteen-year-old female

named Connie York. According to York, during the assault, her attacker attempted

to penetrate her anus. When Reed was tried for this offense in 1991, he claimed that

he and York were in a secret relationship and that the sex was consensual. The jury

acquitted Reed of sexual assault.

• In September 1989, while Reed was on bond for the York sexual assault, he

physically and sexually assaulted the pseudonymous complainant, A.W., a twelve-

year-old girl. DNA testing showed that Reed could not be excluded as the person

who deposited semen in A.W.’s vagina. Photographs corroborated A.W.’s claim

that her attacker repeatedly beat her and bit her face during the encounter. According

to A.W., during the assault, her attacker penetrated her anus and restricted her

breathing.

• In September 1991, Reed physically and sexually assaulted the mother of his

children, Lucy Eipper Gibbs (“Eipper”). Eipper testified that, on another occasion,

Reed penetrated her anus without her consent.

• In May 1995, Reed sexually assaulted his mentally handicapped girlfriend, Carolyn

Rivas. Rivas asserted that Reed held a pillow over her face and penetrated her anus

without her consent. A SANE examination revealed abrasions around Rivas’s anus

consistent with “anal rape.”

• In October 1995, Reed sexually assaulted a woman named Vivian Harbottle

underneath a train trestle in Bastrop. DNA testing showed that Reed could not be

excluded as the person who deposited semen in Harbottle’s vagina.

• In November 1996, in Bastrop, Reed physically assaulted, and attempted to sexually

assault, a nineteen-year-old female named Linda Schlueter. The evidence showed

that Schlueter’s attacker used her car to flee the scene.

For his punishment case, Reed called a handful of witnesses to testify to his good

character. Of note, defense witness Becky Recter testified that Reed was a “very positive”

and “optimistic” person who “seem[ed] like a good guy.” On cross-examination, the State

asked Recter whether she was aware “that on December 23, 1987, he, along with Melvin

Macey and a young man by the name of Don Manuci[,] abducted and repeatedly raped a

lady by the name of Alice Bradford in Wichita Falls, Texas.” Recter replied that she was

REED — 24

not aware of Reed’s past. Similarly, defense witness Bernice Williams testified that she

knew Reed to be “very honest and very respectful.” The State asked Williams whether she

was aware that Reed had been fired from the Bastrop Nursing Home for sexual harassment.

Williams said she was not aware of that.

The defense also put on a forensic clinical psychologist who testified that Reed was

at a low risk of committing violent acts in prison. In rebuttal, the State put on its own

neuropsychologist, who testified that Reed was at a higher risk of committing violent acts

in prison. Presented with the foregoing evidence, the jury answered the statutory special

issues in favor of the death penalty, and the trial judge sentenced Reed to death.

C. Direct Appeal

Reed’s brief on direct appeal included a claim that the evidence was insufficient to

support his capital murder conviction. We affirmed the trial court’s judgment and sentence

in December 2000. Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) (not

designated for publication), cert. denied, 534 U.S. 955 (2001).

D. Reed’s -01 Application

Reed filed his initial (-01) 11.071 application in November 1999. In it, he made his

first claim of actual innocence, which took the same general shape as his trial strategy.

Specifically, Reed endeavored to show that: (1) he and Stacey were in a romantic, sexual

relationship in the months leading up to Stacey’s death; and (2) someone else, particularly

Fennell or Lawhon, murdered Stacey.

REED — 25

As relevant to Reed’s present-day innocence narrative (which, as we later explain,

focuses exclusively upon Fennell as an alternate suspect), Reed attached several exhibits

to his -01 application.

• Jon Chris Aldridge, one of Reed’s cousins, claimed in a 1999 affidavit that he saw

Reed and Stacey together “several times” in the months leading up to Stacey’s

death. Aldridge also alleged that, in April 1996, he witnessed Fennell telling Reed

that he “knew about him and [Stacey].” According to Aldridge, Fennell told Reed

that he was “going to pay.”

• Linda Kay Westmoreland claimed in a 1999 affidavit that Reed and Stacey had

come to her house together on “three or four occasions” between late 1995 and April

1996. Westmoreland also claimed to have “heard” (from whom, she did not say)

that Jimmy “Fenell” knew about Reed and Stacey seeing each other “and that he

was jealous about it.”

• Meller Marie Aldridge, Jon Aldridge’s mother, stated in a 1999 affidavit that “one

evening” she witnessed “Stacie” (whom Aldridge claimed to have recognized from

H-E-B) driving up to the Reed residence in a truck and leaving with Reed.

According to Aldridge, Reed’s mother Sandra described “Stacie” as Reed’s

girlfriend.

• Shonta Reed, another of Reed’s cousins, asserted in a 1999 affidavit that, sometime

in March 1996, “Staci” had come by her (Shonta’s) house “looking for Rodney, who

was not there at the time.” Shonta claimed that “Staci” returned later and “picked

him up.”

• Elizabeth Keehner claimed in a 1999 affidavit that, a few months before Stacey

died, she saw Reed at the Bastrop H-E-B holding hands with a “very pretty young

white girl” who “might” have been Stacey. Though Keehner did not know Stacey

personally, she saw Stacey’s picture in the newspaper after Stacey’s death, and

“[t]he familiarity was there.”

• Walter Reed, Reed’s father, asserted in an August 1999 affidavit that, in April 1999,

he had a curious conversation with a man named Kelly Bonugli. According to

Walter, Bonugli said that he knew where Stacey was the night she was killed and

that he and his family had been “tailed” during the trial.

• Ron Moore, another of Reed’s cousins, claimed in an October 1999 affidavit that,

in January 1999, a woman named Jane Campos told him that she overheard “David”

REED — 26

Fennell and Curtis Davis talking about how Stacey was having an affair with Reed.

Campos also told Moore that Davis told Fennell “not to worry” because “it was all

taken care of.”

• Duane Olney, Reed’s habeas investigator, claimed in a June 1999 affidavit that, in

March 1999, he spoke with a woman named Debra Pace who could corroborate

Moore’s affidavit.

Finally, Reed emphasized that Fennell had failed two polygraph examinations relating to

Stacey’s murder and that, at trial, defense witness Iris Lindley testified that she had

previously seen a young woman named “Stephanie” or “Stacey” drive up to Reed’s house

and ask for “Rodney.”

In response, the State obtained affidavits from Kelly Bonugli, Curtis Davis, Jane

Campos, and Debra Pace, each of whom flatly denied the claims that Reed’s witnesses had

made about them. Further:

• In a follow-up affidavit executed in 2000, Jon Aldridge repeated what he said in his

1999 affidavit but added a few new details. Specifically, Aldridge said that he first

met Stacey in March 1996 at a get-together at Shonta’s house. According to

Aldridge, Reed introduced Stacey to Aldridge as his “dat[e].” Aldridge further

claimed that, later that evening, he, Reed, and Stacey drove around town in Stacey’s

truck buying and smoking crack cocaine. To impeach this claim, the State presented

the habeas court with (1) toxicology screenings from Stacey’s H-E-B work

application and autopsy and (2) an NMS Lab Report dated March 28, 1998. The

former showed that Stacey had tested negative for illegal drugs when she started

working for H-E-B and at the time of her death. The latter, which involved a

postmortem analysis of thirty-two centimeters of Stacey’s hair, showed that Stacey

had not used cocaine for at least the last thirty-two months of her life. Aldridge also

spelled out in greater detail the incident in which Fennell (allegedly) told Reed that

he knew about Reed and Stacey. Aldridge said that Fennell was driving a BCSO

vehicle. Aldridge further claimed that he recognized Fennell “because he once

booked me into the Bastrop Jail.” To impeach this claim, the State presented the

habeas court with the Bastrop Jail’s booking logs, which showed that Fennell never

booked Aldridge into the Bastrop Jail.

• In a follow-up affidavit executed in 2000, Meller Marie Aldridge repeated what she

said in her 1999 affidavit, but like Jon Aldridge, she also added new details.

REED — 27

Specifically, she now claimed that Stacey had “waited on” her at the H-E-B

customer service booth and that she had seen Stacey at the Bastrop H-E-B

socializing with a Hispanic girl named “Rose.” To impeach this affidavit, the State

presented the habeas court with an affidavit from the Bastrop H-E-B’s store director,

Ron Haas. Haas stated that Stacey never worked in the customer service booth and

that, to his knowledge, “Stacey never hung out regularly with any young Hispanic

girl named Rose at our store.”

• The State presented the habeas court with a 1998 witness statement it had previously

obtained from Elizabeth Keehner. The statement showed that Keehner had

originally told the authorities that the “very pretty white girl” she saw Reed with at

H-E-B had “blondish colored hair” (Stacey’s hair was brown). Keehner also

originally stated that she had had a conversation with H-E-B employee Chris Hill in

which Hill claimed that “everybody” at H-E-B knew Reed and Stacey were dating

and that “he and other employees had seen Rodney pick up Stacey on several

occasions for lunch.” To impeach this claim, the State presented the habeas court

with a 1998 witness statement it had previously obtained from Chris Hill. Hill said

that he had worked at H-E-B during the time that Stacey was there, but only

interacted with her once. He denied ever discussing Stacey’s murder with Keehner,

and he said he personally had no knowledge of Reed and Stacey ever having dated.

Indeed, Hill had never heard anyone at H-E-B say that Stacey and Reed even knew

each other. However, Hill did state that, “sometime after Stacey’s murder,” someone

named Betty Wallace told him that she had seen Reed and Stacey talking at a picnic

table outside H-E-B.

Ultimately, in October 2001, the habeas court adopted the State’s proposed findings

and conclusions. As a result, the habeas court generally declined to credit any of Reed’s

habeas witnesses. It concluded that Reed’s evidence of a “secret affair” between himself

and Stacey was “unpersuasive” and that there was no credible evidence that Fennell

murdered Stacey. We later adopted the habeas court’s findings and conclusions and denied

Reed’s first actual innocence claim. Ex parte Reed, Nos. WR-50,961-01, -02 (Tex. Crim.

App. Feb. 13, 2002) (not designated for publication).

E. Reed’s -02 Application

REED — 28

As mentioned, Reed’s -01 application did not focus exclusively upon Fennell as an

alternate suspect. Reed also tried to persuade the habeas court (and this Court) that Lawhon

might have murdered Stacey. One way that Reed sought to implicate Lawhon, both at trial

and in his -01 application, was to point out the similarities between Stacey’s murder and

Mary Ann Arldt’s. One such similarity was the fact that investigators had found Busch beer

cans near the bodies of both Stacey and Arldt.

To respond to this argument, the State attached to its -01 answer a May 13, 1998

DPS Crime Lab report showing the results of DNA testing that the State conducted on the

beer cans found across the road from Stacey’s body. According to the report, one of the

cans yielded no interpretable DNA, but the other can yielded an interpretable DNA profile

from which Lawhon was excluded as a possible contributor. Significantly, the report also

stated that Stacey, GPD officer David Hall, and BPD investigator Ed Selmala could not be

excluded as possible contributors.

In February 2001, Reed filed his first subsequent (-02) 11.071 application. In it,

Reed claimed that the first time he had seen the May 1998 DPS Crime Lab report was in

the State’s answer to his -01 application. Reed therefore alleged that the State had violated

Brady by failing to turn this report over to Reed’s trial lawyers. Reed explained that this

report would have severely undermined the State’s trial theory that it was logistically

impossible for Fennell to have murdered Stacey: “If Mr. Fennell’s next door neighbor

David Hall’s DNA was found on the beer cans at the scene, then the mode of travel by

Fennell to the scene and back becomes obvious.”

REED — 29

Reed and the State jointly convinced the habeas court (without first seeking this

Court’s Section 5 authorization) to hold a hearing on the matter, which took place in March

2001. As relevant here, the -02 hearing revealed that, in January 2001, the State retested

the beer cans using a more advanced form of DNA testing: short-tandem repeat (STR)

testing. Stacey and Ed Selmala were both definitively excluded as potential contributors,

but David Hall still could not be excluded as a potential contributor.

In February 2002, we concluded that Reed’s -02 application did not satisfy Article

11.071, Section 5. We therefore dismissed Reed’s -02 application as an abuse of the writ

and “expressly reject[ed]” all of the habeas court’s recommended findings and conclusions

pertaining to the application. Ex parte Reed, Nos. WR-50,961-01, -02 (Tex. Crim. App.

Feb. 13, 2002) (not designated for publication).

F. Reed’s -03 Application

Reed filed his first federal writ in March 2004, but it was stayed so that Reed could

exhaust his state-court remedies. Thereafter, Reed filed his second subsequent (-03) 11.071

application in March 2005. He attached several new witness statements:

• Martha Barnett stated in a 2002 affidavit that, on April 23, 1996, between 5:00 and

5:30 a.m., she saw “Stacy” Stites and “Jimmie” Fennell standing in front of a red

pickup in front of the “Old Frontier” store outside of Bastrop.

• Jennifer Prater stated in a 2002 affidavit that, in the early morning hours of April

23, 1996, she and her husband Paul had seen a suspicious car on their property with

two people inside. Jennifer claimed to have gotten a good look at the car’s occupants

because its interior lights were on. Jennifer stated, “I have seen a picture of Rodney

Reed. I am absolutely sure that he is not the person I saw in the car that night.”

Further, “My mother in law showed me a picture of Stacey Stites in a newspaper …

. As soon as I looked at the picture I knew that she was the woman I saw in the car.”

REED — 30

• Brenda Prater stated in a 2002 affidavit that, in the early morning hours of April 23,

1996, between 1:00 and 3:00 a.m., she saw a light-colored car drive past her house.

According to Brenda, “The driver was a man who had a darker comple[xion], but

was not black. I thought he was Mexican. There was a woman in the passenger seat.

She was light complected with big dark hair. … [And there] was a white male in the

back seat.” Brenda stated that, when she later saw a picture of Stacey, she

immediately recognized her as the woman in the light-colored car.

• Mary Blackwell, one of Fennell’s fellow cadets at CAPCO (the police academy

Fennell attended), claimed in a 2004 affidavit that she once saw Fennell yelling

angrily at Stacey inside of his truck. Blackwell also asserted that, on a separate

occasion, she overheard Fennell telling another cadet that if he ever caught his

girlfriend cheating on him he would strangle her with a belt.

• LeRoy Riddick, an Alabama-based medical examiner, stated in a 2003 affidavit that:

(1) Bayardo’s time-of-death estimate was not “reliabl[e]” because crime scene

investigators did not document her rigor mortis, lividity, and body temperature; (2)

the evidence of anal penetration in this case was inconclusive; (3) Stacey’s injuries

did not suggest sexual assault or conclusively establish that she died of ligature

strangulation; and (4) the evidence collection methods used at the Bluebonnet Drive

scene were subpar.

• Ronald Singer, the crime lab director at the Tarrant County Medical Examiner’s

Office, stated in a 2003 affidavit that: (1) investigators exercised poor security and

control at the scene where Stacey’s body was found; (2) investigators demonstrated

poor technique in dealing with, and taking evidentiary samples from, Stacey’s body;

(3) the crime scene videotape itself was poorly done; and (4) Karen Blakley went

beyond her area of expertise when testifying at Reed’s trial, specifically regarding

(a) how long Stacey had been deceased; (b) the identification and dating of bruises,

burns, scratches, and bites; and (c) whether the crime was a crime of passion.

Reed also attached a copy of the Bluebonnet Drive crime scene video.

Reed’s application referenced a 1998 book authored by Dr. William Green entitled,

“Rape: The Evidential Examination and Management of the Adult Female Victim.” The

book surveyed studies conducted on the presence of nonmotile intact sperm in the cervix

and vagina. Green noted that one study found intact sperm ten days after intercourse. Other

REED — 31

studies found the presence of intact sperm in the cervix or vagina anywhere from two days

to nine days after intercourse.

In addition, Reed attached filings from two civil-rights actions against the City of

Giddings: (1) Plaintiff’s Original Petition, Jimmy Lehman v. City of Giddings; and (2)

Plaintiff’s Response, Michael Craig Moore v. City of Giddings. The former included an

allegation that Fennell once put his handgun against an arrestee’s head “and made threats

similar to the way a terrorist would hold a hostage.” The latter alleged that the GPD had a

longstanding “policy, custom, or practice of excessive force.” Further, Reed presented the

Court with Bastrop County work records showing that Fennell’s good friend and BCSO

deputy Curtis Davis had taken sick leave the night that Stacey was murdered.

Finally, Reed attached a typewritten (but unsworn) statement by a man named James

Randall Robinson. Robinson claimed to have seen “Stacey and Rodney together on many

occasions.” They would kiss and call each other “baby” and seemed to have a “good

relationship.” Robinson also claimed that he was “with [Jon] Chris Aldridge and Rodney

[Reed] the afternoon after Jimmy Fennell stopped Chris and Rodney” and that he “heard

them talking about this.”

Reed raised seven claims in his -03 application: (1) an actual innocence claim, (2) a

Brady claim, (3) a claim that his trial lawyers were ineffective, (4) a claim that the prejudice

stemming from the alleged Brady and IAC violations warranted reversal; (5) a claim that

Fennell and Rocky Wardlow gave false testimony at trial; (6) a “10-12 Rule” claim; and

(7) a claim that his appellate lawyer was ineffective. Reed argued that the affidavits from

Martha Barnett, Jennifer and Brenda Prater, and Mary Blackwell contained previously

REED — 32

unavailable facts in contemplation of Article 11.071, Section 5(a)(1). He also argued that

his otherwise-barred IAC claims should be reviewed on their merits because no rational

juror apprised of the mounting evidence of his innocence could have found him guilty of

capital murder. See Art. 11.071, § 5(a)(2).

This Court determined that the alleged Brady violations concerning Barnett and

Blackwell satisfied Article 11.071, Section 5. Ex parte Reed, No WR-50,961-03 (Tex.

Crim. App. Oct. 19, 2005) (not designated for publication). We remanded those claims to

the habeas court and dismissed “all [of Reed’s] other claims” as abuses of the writ. Id.

Reed called several witnesses at the ensuing evidentiary hearing, only a few of

which are relevant to Reed’s present-day innocence narrative. First, Barnett elaborated on

her sighting of Stacey and Fennell at the Old Frontier store on the morning of April 23,

1996. Barnett repeated many of the claims she had made in her affidavit, but she also added

new details. Contrary to what she had said in her affidavit, Barnett testified that she saw

Fennell and Stacey arguing inside the truck. On cross-examination, Barnett acknowledged

that Fennell had previously arrested her for DWI.

Blackwell repeated her assertion that she once overheard Fennell telling another

cadet that he would strangle his girlfriend with a belt if he ever caught her cheating. She

added that she had attended Stacey’s funeral and, in Blackwell’s opinion, Fennell seemed

to be putting on a show for the other funeralgoers—for instance, at one point, Fennell

dropped to one knee in grief. To impeach Blackwell, the State presented evidence that none

of Blackwell and Fennell’s CAPCO classmates could corroborate Blackwell’s claims.

REED — 33

Reed called LeRoy Riddick and Ronald Singer to testify at the -03 hearing, but the

habeas court ruled that their testimony would go beyond the scope of this Court’s remand

order. However, the habeas court allowed Reed to obtain affidavits from Riddick and

Singer and submit them after the hearing:

• In a 2006 affidavit, his second in Reed’s case, LeRoy Riddick touched on the same

topics he discussed in his 2003 affidavit: time of death; anal intercourse; cause of

death; and evidence-collection practices. On the topic of Stacey’s time of death,

Riddick made the following observation: “In Ms. Stites’[s] case, the videotape and

photos show that she was lying on her right side when found and that lividity

occurred on the right side.”

• In a 2006 affidavit, Ronald Singer touched on the same topics he discussed in his

2003 affidavit: crime scene control; the processing of evidence from Stacey’s body;

the poor quality of the videotape; and the deficiencies in Karen Blakley’s trial

testimony.

Reed also submitted, with the habeas court’s permission, a post-hearing (2006)

affidavit from Pamela Duncan, Fennell’s girlfriend from August 1996 until September

1997. In the affidavit, Duncan described Fennell as abusive, possessive, controlling, and

prejudiced toward African Americans. Duncan said that when she broke up with Fennell,

he stalked her until he left Giddings (Fennell went to work for the Georgetown Police

Department in Williamson County in November 1998), and that she was afraid for her and

her children’s safety. According to Duncan, this was “the worst time of [her] life.”

Ultimately, the habeas court adopted the State’s proposed findings of fact and

conclusions of law. As a result, the habeas court generally declined to credit any of Reed’s

habeas witnesses. However, the State’s proposed findings contained several inaccuracies.

These “[r]egrettabl[e]” missteps prompted this Court to file and set the cause. See Ex parte

Reed, 271 S.W.3d 698, 729 (Tex. Crim. App. 2008).

REED — 34

After laying out the pertinent facts, our opinion resolved three contested issues: (1)

the extent to which we would adopt the habeas court’s findings and conclusions; (2)

whether Reed was entitled to relief on his Barnett-and-Blackwell-based Brady claims; and

(3) whether, in light of all of the evidence he had adduced to date, Reed had shown by a

preponderance of the evidence that he was actually innocent of Stacey’s murder. See Art.

11.071, § 5(a)(2).

On the first issue, we noted that the record did not support some of the habeas court’s

findings and conclusions. We addressed the problematic findings and conclusions as

follows:

We attribute this inaccuracy (and other like findings) to the fact that the State

generated the proposed findings[,] and they are therefore wholly

representative of the State’s interpretation of the evidence. Mindful of the

role of an advocate, the [habeas] judge as a neutral arbiter should have more

carefully scrutinized the State’s proposed findings to ensure that they

accurately reflect the evidence in the record before adopting them verbatim.

Regrettably, the [habeas] judge’s decision to adopt the State’s proposed

findings and conclusions verbatim has unnecessarily complicated our

independent review of the record.

Reed, 271 S.W.3d at 729. Even so, we concluded that “the few instances … in which the

findings [were] inconsistent or misleading” did not “justify a decision to totally disregard

the findings that are supported by the record and are germane to our resolution of Reed’s

Brady claims.” Id.

On the Brady claims, we concluded that Reed had failed to show that the State

possessed the witness accounts of Barnett and Blackwell at the time of Reed’s trial. We

therefore denied relief on those claims. Id. at 733.

REED — 35

As for Reed’s Section 5(a)(2) actual innocence claim, we explained that our analysis

would balance the trial evidence against “all of the evidence that was not presented at his

trial, namely the evidence presented in all three of Reed’s applications.” Id. at 734. Initially,

we noted that “what separate[d] this case from the majority of gateway-innocence cases

[wa]s the complete lack of a cohesive theory of innocence.” Id. at 746. We described

Reed’s case for innocence as “seriously disjointed and fragmented” and said that it

presented “numerous alternative but critically incomplete theories.” Id. All in all, Reed

“fail[ed] to tell a complete, rational exculpatory narrative that exonerate[d]” him. Id.

We “reject[ed] as unreliable” and therefore refused to credit “the witnesses who

affirmed a relationship between Reed and Stacey” (Jon Aldridge, Linda Kay

Westmoreland, Meller Marie Aldridge, Shonta Reed, Elizabeth Keehner, Walter Reed,

Ron Moore, and Duane Olney). See id. at 747. We also found that James Robinson’s

statement was not credible. Id.

We went on to consider the evidence that, according to Reed, implicated Fennell in

Stacey’s murder:

• Fennell’s deceptive polygraph results, “even though we question their reliability”;

• The beer can DNA test results “that cannot exclude Officer Hall”;

• Evidence that Curtis Davis took sick leave shortly after beginning his shift on the

night of April 22, 1996; and

• Evidence that Fennell and the GPD had a reputation for violence.

See id. We acknowledged that this evidence “may indeed arouse a healthy suspicion that

Fennell had some involvement in Stacey’s death.” Id. But in our view, this “healthy

REED — 36

suspicion” did not outweigh “[t]he evidence of vaginal assault . . . and the circumstantial

evidence admitted against Reed at trial.” See id.

We turned next to the opinions given by Riddick and Singer and Reed’s reliance on

William Green’s book discussing spermatozoa in rape cases. First, addressing Reed’s

contention that “the evidence of anal intercourse [was] inconclusive,” we noted that any

“deficiency in the evidence suggesting anal intercourse” did not necessarily show that Reed

and Stacey “engaged in consensual vaginal intercourse.” Id. at 748. We reasoned that there

was plenty of evidence apart from the anal-penetration evidence tending to show that

Stacey was sexually assaulted: the state of Stacey’s body and clothing at the Bluebonnet

Drive scene; her injuries; her life circumstances; and other things. See id. at 748–49. We

also noted that, when the police questioned Reed, he denied knowing her. In our view,

“[t]his made Reed’s claim of a consensual sexual relationship, offered for the first time at

trial, look like a manufactured and implausible explanation … for the presence of his

semen.” Id. at 749.

Addressing Reed’s argument that Blakley’s testimony regarding the longevity of

intact spermatozoa was false, we noted that Reed’s habeas evidence was not tailored to the

facts of this case. Green’s book “was based on an analysis of cervicovaginal scrapings,”

while Blakley’s analysis was based on “vaginal swabs.” Id. But even assuming that

“Blakley and . . . Bayardo underestimated the length of time that sperm will remain intact,”

we concluded that “given the other evidence in this case, Reed . . . failed to meet his

burden.” Id. at 750. In other words, even if the longevity of intact spermatozoa made it

REED — 37

possible that Reed and Stacey had consensual sex before April 23, 1996, the circumstantial

evidence made that bare possibility seem highly unlikely.

Finally, we addressed Jennifer and Brenda Prater’s statements. We first

“question[ed] the[] reliability” of the Praters’ statements because the Praters “did not come

forward with this information until September 2002, even though the investigation into

Stacey’s death was well known in Bastrop.” 3 Id. We also found Jennifer’s credibility

“suspect” because her husband, Paul, did not corroborate her account in an affidavit. Id. at

751. More importantly, however, the Praters’ evidence “ha[d] no continuity with any of

the other new evidence” and did not “fit within the chronicle of events that the trial

evidence” supported. Id.

After “reviewing the cumulative force of all the foregoing evidence,” we concluded

that Reed had “failed to satisfy the gateway standard under Article 11.071, Section

5(a)(2).” Id. That is, Reed failed to prove by a preponderance of the evidence that he was

actually innocent. We therefore refused to review Reed’s remaining claims and otherwise

denied relief. Id.

G. Reed’s -04 Application

3

Presiding over Reed’s federal habeas proceedings, Federal District Judge Lee Yeakel

found that this credibility determination was objectively unreasonable. Judge Yeakel pointed out

that the record contained investigative notes proving that the police had spoken with Brenda and

Paul Prater while investigating Stacey’s death. Reed v. Thaler, No. 1:02-cv-00142-LY, order at

18–20 (W.D. Tex. Sept. 25, 2012). Judge Yeakel nevertheless found that the Praters’ information

was immaterial. Id. at 21–23. He ultimately denied relief. See also Reed v. Stephens, 739 F.3d

753, 787 (5th Cir. 2014), cert. denied., 574 U.S. 973 (2014).

REED — 38

Reed filed his third subsequent (-04) 11.071 application in March 2007. As

mentioned, in the -03 proceeding, Reed offered Pamela Duncan’s affidavit in support of

his actual innocence claim. In the -04 application, he offered it as Brady evidence. Because

Reed could have discovered Duncan’s affidavit before he filed his -03 application, we

dismissed Reed’s -04 application (along with his -05 application, see infra) under Article

11.071, Section 5. Ex parte Reed, No. WR-50,961-04, -05, 2009 WL 97260 (Tex. Crim.

App. Jan. 14, 2009) (not designated for publication).

H. Reed’s -05 Application

Reed filed his fourth subsequent (-05) 11.071 application in July 2008. Reed

presented this Court with a Williamson County indictment showing that, in December

2007, Fennell was charged with one count of aggravated sexual assault, one count of

aggravated kidnapping, one count of improper sexual activity with a person in custody, and

one count of official oppression. Per the indictment, all four charges stemmed from an

October 26, 2007 encounter Fennell had with a woman given the pseudonym Amanda

Smith. An accompanying search-warrant affidavit revealed that Amanda Smith had come

to the Williamson County Sheriff’s Office (WCSO) at 1:50 a.m. on October 26, 2007 to

report that she had been sexually assaulted by a police officer.

According to Smith:

“Officer Fennell” drove her to a location which she believed to be a park,

stopped the patrol unit, and got her out of the car. Fennell unhandcuffed her

and asked her to dance for him outside of his patrol unit, then had her place

her hands on the trunk of his patrol unit, pulled down her pants, and

penetrated her vaginally from behind with his penis. The defendant asked

[Smith] if she liked it, she said no and asked him to stop, and he did not.

When the officer was finished, he drove her back to the original apartment

REED — 39

complex and dropped her off. The victim immediately reported the sexual

assault by calling 9-1-1.

Smith picked Fennell out of a photo lineup as the officer who had assaulted her. A

Georgetown Police Department Internal Affairs report corroborated that, shortly after

Fennell dropped Smith off at her apartment complex, she was “screaming and yelling that

she had been raped.”

Reed produced a copy of Fennell’s plea hearing, which showed that Fennell pleaded

guilty to improper sexual activity with a person in custody and non-aggravated kidnapping.

The State “waive[d]” counts one and four of the indictment (corresponding to aggravated

sexual assault and official oppression) and recommended a partially-probated sentence that

included Fennell permanently surrendering his peace officer’s license. Reed alleged that

the trial judge ultimately rejected the plea and that “Mr. Fennell [would] answer to charges

of aggravated kidnapping and sexual assault at a trial set [for] the Fall of 2008.” However,

the record reflects that the trial court ultimately accepted Fennell’s guilty plea. At the later

-10 hearing, Fennell testified that he served “day for day” a ten-year prison sentence

stemming from his guilty plea. See infra.

Reed also attached to his -05 application:

• A Travis County Sheriff’s Office (TCSO) incident report describing a May 2004

encounter between Fennell and a woman named Angie Lee Smith (“Angie”).

According to the report, just before 1:00 a.m. on May 9, 2004, Angie approached a

Travis County Sheriff’s deputy at a Shell station. Her hands shaking, Angie stated

that she had just been pulled over in Georgetown by an “Officer J. Fennel.” Fennell

allegedly told Angie that he pulled her over because she had a crooked license plate.

When Angie handed Fennell her driver’s license, he said it was expired. Fennell

asked Angie “what [she] wanted to do about it.” When Angie offered to get

everything up to date within a week, Fennell asked her for a “lap dance” instead.

Angie stated that Fennell never made physical contact with her. The TCSO deputy

REED — 40

responding to Angie’s call wrote that she “would make and maintain eye contact”

and that “her statement stayed consistent.”

• A print-off from a MySpace page administered by a person with the internet

moniker “pointman_1.” The page contained “sexually explicit and violent”

imagery—for instance, there was “a picture of … a police officer dressed in [a]

SWAT uniform holding a gun to a woman’s head while the woman gives him oral

sex.” Reed alleged—but did not offer any concrete evidence—that “pointman_1”

was Fennell.

• A written complaint that Fennell filed with D. E. Sosa, the Giddings City Manager,

in August 1998. Among other things, Fennell complained that David Hall had said

something to him during the investigation into Stacey’s death that upset him.

Fennell did not elaborate, but said that he had “forgive[n]” Hall for the comment.

Fennell explained that Hall wanted a promotion and would “burn anyone to get” it.

In his application, Reed alleged that this complaint showed that Hall was making

statements in 1998 that implicated Fennell in Stacey’s murder.

• An indictment filed against former Bastrop County Sheriff Richard Hernandez. The

indictment, filed in July 2007, charged Hernandez with four counts of theft by a

public servant, one count of misapplication of fiduciary property, and one count of

abuse of official capacity. Some of the charges involved a pattern of conduct dating

back to 1997–98, when Stacey’s murder investigation was still ongoing. Reed

argued that this alleged misconduct undermined the reliability of BCSO’s

investigation into Stacey’s death.

Reed’s -05 application raised Brady, Elizondo, and Section 5(a)(2) claims, but we

dismissed the application under Article 11.071, Section 5. Ex parte Reed, No. WR-50,961-

04, -05, 2009 WL 97260 at *6 (Tex. Crim. App. Jan. 14, 2009) (not designated for

publication). We explained that the evidence of Fennell’s crimes (relating to Amanda

Smith) and misconduct (relating to Angie Smith) did not “exonerate Reed of Stacey’s

murder.” Id. Those incidents showed only that Fennell had “engaged in despicable and

reprehensible conduct as an officer with the Georgetown Police Department.” Id. As for

the “pointman_1” MySpace page, we noted that, other than “mere conjecture by Reed,”

there was no proof that the web page was Fennell’s. Id. Therefore, this evidence, even if

REED — 41

newly discovered, did not establish a prima facie case for relief under Brady or Elizondo.

As for Section 5(a)(2), we gave Reed every benefit of the doubt and “consider[ed] all of

the evidence not presented at his trial.” See id. at *5. But even adding all of this “new”

evidence into the mix, we remained unpersuaded that Reed had shown by a preponderance

of the evidence that no reasonable juror would have found him guilty beyond a reasonable

doubt. See id. at *6.

I. Reed’s -06 Application

Reed filed his fifth subsequent (-06) 11.071 application in April 2009. The evidence

supporting the application fell into two general categories: (1) “additional evidence of

Jimmy Fennell’s history of sexual assault, misconduct, and violence”; and (2) a

“suppressed . . . account of [a witness] seeing Mr. Reed and Ms. Stites together prior to the

murder.” The attached evidence included:

• A January 2008 WCSO report in which a woman with the initials “B.A.” claimed

that a Georgetown officer named “Sgt. Fennel” had “raped” her on March 12, 2007.

In essence, B.A. alleged that, after “Sgt. Fennel” arrested her for drug possession,

he coerced her into sex to make the charges go away.

• A December 2007 WCSO report in which a woman named Kelly Ramos claimed

that Fennell had “acted inappropriately” during a traffic stop in August 2007.

Specifically, Ramos claimed that Fennell stared lewdly at her breasts during a traffic

stop and told her that he would come by her apartment at around 3:00 a.m. so that

they could “discuss” her situation.

• A February 2008 WCSO report in which a woman named Mary Ann Bone accused

Fennell of asking her, during a police dispatch to Bone’s house, whether he could

“bend her over the couch and fuck her.” Bone stated that she decided to speak with

WCSO because she “just wanted to help the girl who was making the allegations”

and “knew how it felt for no one to believe her.”

• A December 2007 WCSO report in which a woman named Jamie Bolin claimed

that Fennell made inappropriate comments to her during a late October/early

REED — 42

November 2007 domestic violence dispatch. When Fennell arrived, Bolin’s

boyfriend had already fled the scene. Fennell told Bolin “it sounded like she needed

a new boyfriend” and began asking her personal questions. Fennell “looked at

[Bolin] in a manner than made her uncomfortable.” Bolin claimed that Fennell left

shortly thereafter but returned an hour later to ask her more questions, including

“what she did for fun and whether she had ever considered dating older men.”

• A November 2007 WCSO report in which there was some suggestion that Fennell

might be abusing his then wife, Aida Fennell. Specifically, one of Aida’s coworkers,

Keith Tubbs, told a WCSO investigator that Fennell had once called Tubbs asking

if he (Tubbs) had made a phone call to Fennell’s house. The conversation continued:

[Tubbs] further advised that Jimmy began to ask if Aida was

seeing someone at [work]. During the conversation it was

brought up that Aida had previously shown up at work with

bruises on her face and claimed it was a result of being hit in

the face by a phone when Jimmy became upset with her and

threw a phone at her. Tubbs advised that Aida was nervous

about Jimmy because he was jealous and had a temper and

expressed concern about the death of his former fiancé[e] in

Giddings.

• A Texas Rangers report dated January 15, 2008, in which a woman named Wendy

Wallace claimed that Fennell and David Hall had stalked her in Giddings in 1996

or 1997.

Reed also attached what he described as a “suppressed . . . account” of a witness

who allegedly saw “Mr. Reed and Ms. Stites together prior to the murder.” The attached

witness statement showed that, in January 2008, a woman named Jeannie Reese spoke with

the Texas Attorney General’s Office. Reese explained that she was a volunteer with Travis

County Victim’s Services. Reese asserted that, “[a]bout ten or twelve years ago,” she was

sent to Bastrop County to inform a family that one of their loved ones had died in a car

crash. Reese stated that there were “a lot of people … outside the home.” Everyone at the

house was African American, “with the exception of one young woman who was white.”

She was very petite, “maybe 5’0 to 5’1 and weighed about 100–110 lbs. She was what I

REED — 43

would call tiny.” The woman was holding hands with an African American man who was

5’11” or 6’0” and weighed “about 170 lbs.”

Reese claimed that a week or two after that incident she saw a news story about a

“missing girl” who lived in Bastrop. Reese thought the girl looked familiar, so she called

the Sheriff’s Department and “notified them that I thought that maybe the girl on t.v. was

the girl I saw at that house.” The Sheriff’s Department representative told her that her

information “had nothing to do with their case.” Later, when Reese saw some news stories

about Reed, she thought he looked familiar, too. Reese told the Attorney General’s Office

that Reed and Stacey “might have been the couple I saw at that house.” But she clarified

that she had “never met and [did] not know … Stacey Stites or Rodney Reed.”

Reed’s -06 application raised Brady, Elizondo, and Section 5(a)(2) claims, but we

dismissed the application under Article 11.071, Section 5. Ex parte Reed, No. WR-50,961-

06, 2009 WL 1900364 (Tex. Crim. App. Jul. 1, 2009) (not designated for publication).

Echoing our reasoning in the -05 order, we noted that Reed’s “allegations of Fennell’s

misconduct and domestic violence” did not exonerate Reed. Id. at *1. As for “the possible

sighting of the victim and [Reed] together,” we stated that Reese did not “positively

identify either the victim or [Reed], and her description of the woman she saw [was] not

consistent with descriptions of the victim.” Id. Ultimately, we held: “The totality of the

evidence before us still supports a guilty verdict. This application fails to meet the gateway

standard of … Section 5(a)(2), fails to make a prima facie showing of actual innocence

under Elizondo and Herrera, and fails to show a Brady violation.” Id. at *2.

J. Chapter 64 Litigation

REED — 44

Reed filed a Chapter 64 motion for DNA testing the same day the convicting court

set his first execution date—July 14, 2014. 4 Among other things, the motion included a

third affidavit from LeRoy Riddick (this one dated June 16, 2010), in which Riddick

claimed that: (1) he was aware of multiple “[r]eliable scientific studies [that] have found

morphologically intact sperm in the human vagina after two, four, five, six, seven and even

10 days”; and (2) based on the limited amount of semen found in Stacey’s underwear and

rectum, “it is highly unlikely that Mr. Reed and Ms. Stites had sexual intercourse within

24 or even 48 hours of Ms. Stites’s death.”

The convicting court held a hearing on Reed’s Chapter 64 motion and orally denied

it on November 25, 2014. On December 12, 2014, the convicting court signed findings of

fact and conclusions of law supporting its ruling. Reed appealed the convicting court’s

ruling to this Court. Initially, we concluded that the convicting court’s findings were

incomplete; accordingly, we remanded the case to the convicting court for “additional

findings.” Reed v. State, No. AP-77,054, 2016 WL 3626329 (Tex. Crim. App. Jun. 29,

2016) (not designated for publication). After the convicting court made supplemental

findings, we issued an opinion affirming the denial of testing. See Reed v. State, 541

S.W.3d 759 (Tex. Crim. App. 2017), cert. denied, 138 S. Ct. 2675 (2018). But see also

Reed v. Goertz, 143 S. Ct. 955, No. 21-442 (Apr. 19, 2023) (holding that, in a 42 U.S.C. §

4

The record of Reed’s Chapter 64 litigation was not introduced at the -10 hearing. But

under Texas Rule of Evidence 201, a court can sua sponte take judicial notice of facts—even

adjudicative facts—so long as they are “not subject to reasonable dispute” and “can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned.” See

TEX. R. EVID. 201(b), (c). We take judicial notice of the record of Reed’s Chapter 64 litigation,

which is in this Court’s possession.

REED — 45

1983 suit challenging the constitutionality of a state’s procedures for seeking

postconviction DNA testing, the statute of limitations begins to run not when the state trial

court first denies testing, but when the ensuing state appellate litigation ends).

K. Reed’s -07 Application

Reed filed his sixth subsequent (-07) 11.071 application in February 2015. Among

other things, Reed attached newly obtained statements from the State’s trial experts:

• In a 2012 declaration, Roberto Bayardo, the medical examiner who autopsied

Stacey’s body, offered four “opinions and clarifications” regarding his trial

testimony. First, Bayardo stressed that the time-of-death estimate he offered at trial

was just that—an estimate. Second, Bayardo disputed Karen Blakley and Megan

Clement’s trial testimony that spermatozoa begin to break apart at 24–26 hours.

Bayardo continued, “[T]he fact that I found ‘very few’ (as stated in the autopsy

report) spermatozoa in Ms. Stites’s vaginal cavity suggests that the spermatozoa

was not deposited less than 24 hours before Ms. Stites’s death.” Third, Bayardo

suggested that the State had mischaracterized his testimony regarding evidence of

spermatozoa in Stacey’s rectum. Fourth, Bayardo opined that “the presence of

spermatozoa in Ms. Stites’s vaginal cavity was not evidence of sexual assault. There

was no indication that the spermatozoa in Ms. Stites’s vaginal cavity w[ere] placed

there [non-]consensually.”

• In a 2012 email exchange between Reed’s habeas lawyer Bryce Benjet and State’s

trial expert Meghan Clement, Clement stated that (1) processing rape kit samples

can break the tails off of sperm cells, and (2) her testimony regarding the longevity

of intact sperm was based on her experience as a serologist, not on any scientific

literature.

Reed also attached new affidavits and statements from his own postconviction

experts:

• Dr. Werner Spitz stated in a 2015 affidavit that Stacey’s body should have been

examined by a qualified pathologist in a controlled environment, rather than at the

crime scene. Further, based on the lividity pattern on Stacey’s body, the amount of

rigor she showed on the crime scene video, the amount of residual sperm in her

genital tract, and the signs of decomposition noted by Bayardo and others, Spitz

considered it “indisputable” that Stacey died 20–24 hours before her body was

filmed. If accurate, this would put Stacey’s time of death at around 5:15–9:15 p.m.

REED — 46

on April 22, 1996. Spitz also stated that intact spermatozoa can be found in the

vagina up to 72 hours after coitus. Finally, Spitz believed that Bayardo was mistaken

to attribute Stacey’s distended anus to penile penetration, since the human anus

naturally relaxes upon death.

• In a 2015 statement, Dr. Michael Baden said that: (1) the distribution and intensity

of Stacey’s lividity showed that she was murdered before midnight on April 22,

1996; (2) Stacey was already dead with signs of decomposition when she was placed

in the truck; (3) intact sperm can persist for two or three days after consensual

vaginal intercourse; and (4) there was no evidence that Stacey engaged in anal sex

before she died and no evidence that she was sexually assaulted.

• LeRoy Riddick submitted a fourth affidavit on Reed’s behalf, this one executed in

2015. Riddick stated that based on the amount of rigor Stacey showed on the

Bluebonnet Drive video, Stacey likely died “16–20 hours from the first

documentation of the body at 5:15 p.m.” This would correspond with a time of death

in the 9:15 p.m. (April 22) – 1:15 a.m. (April 23) range. Further, based on the lividity

pattern on Stacey’s body, her “body was in a different position in which the right

arm and shoulder were dependent [i.e., lower than the rest of her body] for at least

4–6 hours.” Finally, Riddick asserted that morphologically intact sperm can be seen

up to 72 hours after intercourse and that there was no evidence that Stacey’s anus

was penetrated before she died.

• In a 2015 affidavit, Robert Johnson, who held a Ph.D. in analytical chemistry and

who worked for the Tarrant County Medical Examiner’s Office, stated that he had

reviewed the March 20, 1998 toxicology report prepared by National Medical

Services (NMS). See supra p. 26. The gist of Johnson’s affidavit was that, if

Stacey’s hair were re-tested using current analytic methods, “there is a good

possibility that the testing can yield results that were previously undetectable.”

• Dr. Merrill Lewen, a board-certified obstetrician/gynecologist, claimed in a 2015

affidavit that she had “regularly prescribe[d] birth-control pills to [her] patients …

since [she] began [her] residency in 1990.” Therefore, Lewen was “familiar with

the brands of birth-control that were available in the mid-1990s.” At trial, Fennell

testified that he and Stacey did not have sex on the evening of April 22, 1996

because Stacey was on the “vitamin” phase of her birth-control regimen. The gist of

Lewen’s affidavit was that this testimony was false. Lewen was unfamiliar with any

birth-control instructions stating that the patient is at a higher risk of pregnancy

during “the placebo pill week.” Further, “[n]o physician would have told a patient

this information or put such information in a prescription, as it is simply false.”

Lewen had also never heard of anyone referring to the placebos as “vitamins.”

REED — 47

• Kevin Gannon, a retired New York Police Department detective, claimed in a 2015

affidavit that he had reviewed the evidence in Reed’s case. In Gannon’s opinion, the

evidence pointed to a murder that happened much earlier in the evening than the

State had theorized. Based on Gannon’s perception of Stacey’s lividity, rigidity, and

“decompositional changes,” Gannon concluded that Stacey could not have been

murdered between 3:00 and 5:00 a.m. on April 23, 1996. According to Gannon, the

evidence supported a time of death between 7:00 and 11:00 p.m. on April 22.

Gannon also claimed that (1) many police officers sit on top of their lap belts; (2)

Stacey’s fingernails were “closely cut,” and a lay person is unlikely to have known

that fingernails often contain incriminating evidence; and (3) the crime scene looked

staged. Gannon asserted that these facts implicated Fennell in Stacey’s murder.

• Joseph Warren, who held a Ph.D. in molecular biology, stated in a 2015 affidavit

that, although studies varied, “[t]here is consensus among forensic biologists that

intact sperm can be found inside a human woman more than 24 hours after

intercourse.” According to Warren, “Reliable testimony on this issue must come

from accepted forensic biological science, which clearly indicates that intact sperm

can survive for at least 72 hours in the body.”

In addition, Reed produced a handful of new eyewitness accounts:

• Alicia Slater, a California resident, stated in a 2015 affidavit that she had worked at

the Bastrop H-E-B from 1995 until May 1996. Slater said that she would sometimes

talk with Stacey during their lunch breaks. Slater claimed that, “[o]n one occasion,”

Stacey revealed that she was “sleeping with a black guy named Rodney.” Slater also

“remember[ed] that some people at the HEB thought that . . . Jimmy Fennell

committed the murder.” She claimed that she did not come forward with this

information any sooner because she: (1) did not want to be involved; (2) did not

trust the police in Bastrop; (3) feared that there would be repercussions for her

family; (4) assumed that the relationship between Reed and Stacey was common

knowledge; (5) feared that if she said something, she would have to return to Bastrop

to testify; and (6) did not realize the importance of what Stacey had said to her. But

when Slater saw a Facebook post stating that Reed had an execution date, she

“realized that it was now or never.” Slater “felt morally compelled to tell someone”

what she knew.

• Lee Roy Ybarra, a Bastrop resident, asserted in a 2015 affidavit that he was one of

Stacey’s coworkers at the Bastrop H-E-B. Ybarra claimed to have seen Stacey

“talking with a young black man in the store” several times. Stacey’s demeanor

would change whenever this young man came around: “She seemed happy to see

him and would be in a good mood.” By contrast, whenever Stacey’s fiancé came in

the store to visit her, “she would become a nervous wreck. I know that there were

times that Stacey would deliberately hide so that she didn’t have to talk to him.”

REED — 48

After Stacey’s death (“[m]uch later”), Ybarra read a newspaper article about

Stacey’s murder. The article contained a picture of the suspect. Ybarra had a sudden

reaction: “I quickly said to myself that this is the same black man who used to visit

[Stacey] at the store. It was then that I found out that the man’s name was Rodney

Reed.” Ybarra claimed that he did not come forward with this information any

sooner because no one ever asked him what he knew: “If anyone had asked, I would

have gladly told them what I knew about Stacey Stites and Rodney Reed.”

In a 2015 affidavit, a Travis County resident named Richard Scroggins described a

disturbing incident that he witnessed at the Bastrop Whataburger in April 1996. Outside

the restaurant, near the entrance, Scroggins claimed to have seen “a stocky-framed man

with either a shaven head, or very little hair … screaming at the top of his lungs to a young,

attractive, white young lady who appeared to be in her late teens or early twenties.” The

man was calling the woman awful names—“cheating, lying cunt . . . slut . . . whore”—and

shaking his fist at her. According to Scroggins, the young woman asked the man, “Can we

please not do this here[?] This is where I work. Let’s talk about this when we get home.”

But the man would not stop. Many years later, “[b]etween five to ten years ago,” Scroggins

was reading an article in the Austin Chronicle about Stacey’s murder when he saw some

photographs of Fennell and Stacey. Scroggins “had no doubt that these were the two

individuals from the encounter of April 1996.” He claimed to have come forward with this

information “just as soon as [he] realized that it might be relevant or helpful.”

Finally, Reed submitted an affidavit of his own, dated November 21, 2014—just a

few weeks shy of his first execution date. Among other things, Reed asserted that the last

time he and Stacey had (consensual) sex was in the early morning hours of April 22,

1996. Reed also echoed Jon Aldridge’s claim that Fennell had once told Reed “th[at] he

knew I was messing around with his girl and that I was going to pay.”

REED — 49

Reed’s -07 application raised a claim of actual innocence, a claim under Code of

Criminal Procedure Article 11.073, and a claim that his trial was tainted by “false,

misleading, and scientifically invalid testimony.” Reed further asked this Court to

reconsider its prior habeas denials “[i]n light of the new forensic evidence” and the new

eyewitness accounts.

We initially stayed Reed’s execution “pending further order of this Court.” Ex parte

Reed, No. WR-50,961-07, 2015 WL 831673 (Tex. Crim. App Feb. 23, 2015) (not

designated for publication). Then, in June 2016, Reed filed a “[s]upplement to his pending

[-07] Application for Writ of Habeas Corpus,” which we construed as his seventh

subsequent (-08) 11.071 application. See infra. We concluded that portions of the -08

application satisfied Article 11.071, Section 5. So, in a single order, we remanded the -08

application and dismissed the -07 application for failing to satisfy Section 5. Ex parte Reed,

Nos. WR-50,961-07, -08, 2017 WL 2131826 (Tex. Crim. App. May 17, 2017) (not

designated for publication). In dismissing the -07 application, we explained that Reed had

“failed to make a prima facie showing on any of his claims.” Id. at *1.

L. Reed’s -08 Application

In his -08 application, Reed alleged that, in the spring of 2016, BCSO deputy Curtis

Davis agreed to be interviewed for a CNN documentary about Reed’s case. During the

interview, Davis told CNN that he and Fennell had spoken on April 23, 1996 (before Stacey

was found dead) about Fennell’s whereabouts on the evening of April 22. According to

Davis, Fennell said that he had been drinking the night of April 22 and “stayed out late” so

as not to disturb Stacey.

REED — 50

Reed alleged that this new information (1) added to his pending (-07) actual

innocence claim, (2) constituted Brady evidence, and (3) showed that Fennell testified

falsely at trial when he testified that he and Stacey spent the evening of April 22 together

in their apartment. In May 2017, we remanded the -08 application for “resolution” of

Reed’s Brady and false testimony claims. Ex parte Reed, Nos. WR-50,961-07, -08, 2017

WL 2131826 (Tex. Crim. App. May 17, 2017) (not designated for publication). We held

that Reed had failed to make a prima facie showing of actual innocence and so did not

remand that claim. Id. at *1.

The evidentiary hearing on Reed’s -08 application took place in October 2017. Reed

called multiple witnesses, including Fennell (who immediately invoked, through counsel,

his Fifth Amendment privilege against self-incrimination).

Reed also called Curtis Davis as a witness. Through Davis, Reed was able to

introduce a transcript of the CNN interview. Based on the transcript, Davis told CNN that:

• On April 23, 1996, Fennell told Davis that, “[t]he night before,” Fennell and some

other police officers “had consumed a little bit of alcohol.” Davis said he would not

describe Fennell and his group as “drunk,” because “that’s not what he [Fennell]

said,” but they “drank a few beers . . . in and around the vehicle.”

• Fennell took the truck home “later that night after practice.” But Davis did not know

exactly when that happened: “[I]f somebody was to ask me a direct question about

what time [Fennell] got home that night, I couldn’t answer that ‘cause I [was never]

told.” Davis “assume[d]” that it was “10:00’ish, 11:00 maybe at night. You know,

after he powed [sic] around with the guys a little bit.”

• Fennell’s “whole reasoning for … not coming straight back home was Stacey was

asleep” and he “didn’t want to disturb her.”

On direct examination, Davis stated that the transcript accurately represented what he told

CNN. On cross-examination, the State emphasized the fact that, by Davis’s own admission,

REED — 51

Fennell did not expressly tell him what time he got home or even that Stacey was asleep

when he got home. Davis had only “guessed” and “assumed” those things.

In addition, Michael Baden, who provided an affidavit for the -07 application,

testified at the -08 hearing. In Baden’s opinion, the forensic evidence suggested that Stacey

died sometime before midnight on April 22, 1996. He based this conclusion on (1) the

lividity patterns on Stacey’s body; (2) her apparent level of rigor mortis; and (3) signs of

decomposition in her body (e.g., “skin slippage”). Baden theorized that Stacey’s body was

in the truck, her face and arm angled downward, for four or five hours before it was moved.

Baden also stated that the autopsy revealed no evidence that Stacey was “anally raped.” He

based this conclusion on the normality of postmortem anal dilation and the absence of

blood and semen around Stacey’s anus. Baden stated that if there was semen in Stacey’s

anus, it was likely the result of cross-contamination and/or vaginal drainage. Finally, Baden

testified that spermatozoa can remain intact for more than 24 hours in the human body.

The habeas court adopted the State’s proposed findings and conclusions. As a result,

the habeas court found that:

• Fennell never told Davis what time he arrived home on April 22, 1996—Davis

simply “surmised” that information;

• Fennell never told Davis that Stacey was asleep when he arrived home on April 22,

1996—Davis’s claim that Stacey was asleep when Fennell got home was “an

assumption”; and

• Baden did not testify that he would have been available to testify at Reed’s capital

murder trial or that, if he testified, he would have offered the same testimony that

he presented on habeas.

REED — 52

We ultimately denied relief on the remanded claims based on our own review of the

record. Ex parte Reed, Nos. WR-50,961-08, -09, 2019 WL 2607452 (Tex. Crim. App. Jun.

26, 2019) (not designated for publication), cert. denied, 140 S. Ct. 686 (2020). We further

“dismiss[ed] any other grounds [Reed] raised in his -08 application as an abuse of the writ

for failure to satisfy Article 11.071 § 5.” Id. at *2.

M. Reed’s -09 Application

Reed filed his eighth subsequent (-09) 11.071 application in June 2018, when the -

08 application was still pending in this Court. The gist of the application was that the trial

testimonies of Karen Blakley, Meghan Clement, and Roberto Bayardo had all been

recanted, proven false, or otherwise undermined. Reed attached several exhibits in

furtherance of this theme:

• In a 2018 letter made in response to a request from Reed’s habeas lawyer Bryce

Benjet, DPS Crime Lab employee Brady Mills stated that he did not believe that

Blakley’s trial testimony constituted professional negligence or misconduct.

“However,” Mills continued, DPS’s review of Blakley’s testimony had revealed

some “potential limitations in the paper she cited during [her] testimony:

Spermatozoa—Their Persistence After Sexual Intercourse, GM Willott and JE

Allard, Forensic Science International, 19 (1982) pp[.] 135–154.” Specifically,

Mills noted that the Willott and Allard paper had analyzed data from living subjects

who self-reported the time between intercourse and sample collection. Further, the

Willott and Allard paper had itself referenced a “Davies and Wilson” study that

“reported 72 hours as the longest time for intact spermatozoa to be found in the

vagina.” Mills concluded that “the literature varied greatly in the time given for

finding spermatozoa (intact and otherwise) in the female reproductive tract.”

• In a 2018 letter, Stephane Sivak, one of Bode Cellmark’s Technical Leaders, alleged

that Meghan Clement’s testimony contained “unsatisfactory statements.” Sivak

classified the statements in question as “Error Type 3,” meaning that Clement had

inappropriately “cite[d] the number of cases and/or samples worked in the lab as a

predictive value to bolster the conclusion that the DNA profile belong[ed] to a

specific individual,” or “otherwise testifie[d] beyond the scope of … her expertise.”

Sivak specifically criticized Clement’s testimony that: (1) spermatozoa start losing

REED — 53

their tails “after a short period of time”; (2) she could not recall ever having found

intact spermatozoa twenty to twenty-four hours after a sexual assault; and (3) her

opinion was based on the “thousands of rape kits” she had processed as a serologist.

• In a 2018 affidavit, Purnima Bokka, one of Bode Cellmark’s DNA analysts, stated

that “[s]everal studies have been conducted to study the persistence of spermatozoa

in body cavities.” Bokka cited five such studies (publication dates ranging from

1972 to 2003—one of which was the aforementioned “Davies and Wilson” study)

and noted that “[s]ome studies have shown that intact sperm are less commonly seen

as late as 72 to 144 hours in the vaginal cavity.” Bokka further stated that, with over

500 cases processed, she had never encountered intact sperm in her forensic

casework.

• In a 2015 affidavit, Calvin “Buddy” Horton, one of Stacey’s cousins, described an

incident he witnessed “[o]ne Sunday evening” around five or six o’clock in October

or November 1995. Specifically, Horton claimed that he was taking his kids to the

Dairy Queen in Bastrop when he saw Stacey coming out of the Dairy Queen with

“a black man.” Seeing Stacey with a black man did not surprise Horton because his

parents had told him that she dated black men. When Horton “hollered at [Stacey]

to get her attention,” Stacey and the man both looked directly at Horton, but neither

came toward him. Stacey seemed “shocked” and “embarrassed”; she quickly left

with the man without introducing him to Horton. According to Horton, Stacey and

the man left in “a darker colored car that Stacey was driving.” Horton further

claimed that, “sometime after Stacey’s death,” he saw pictures of Reed on the news

and recognized Reed as “the same man I saw with Stacey at the Dairy Queen in

1995.”

In June 2019, in the same order in which we denied relief on Reed’s -08 application,

we dismissed Reed’s -09 application as an abuse of the writ. In our view, Reed had failed

to show prior unavailability under Section 5(a)(1) or actual innocence under Section

5(a)(2). Ex parte Reed, Nos. WR-50,961-08, -09, 2019 WL 2607452 (Tex. Crim. App. Jun.

26, 2019) (not designated for publication), cert. denied, 140 S. Ct. 686 (2020).

III. THE INSTANT CASE: REED’S -10 WRIT

A. Application and Remand Order

REED — 54

Reed filed his ninth subsequent (-10) 11.071 application in November 2019, five

months after we denied Reed’s -08 application and dismissed his -09 application. Reed

presents eight affidavits that he alleges contain previously-unavailable facts:

• Arthur Snow stated in a 2019 affidavit that, from December 2010 until September

2011, he was an inmate at the Stevenson Unit in Cuero, Texas. Snow asserted that,

while in prison, he had joined the Aryan Brotherhood, a whites-only prison gang,

and rose to become a “respected member of the gang.” Snow claimed that, sometime

in 2010, a white man named Jimmy Fennell approached him at the Stevenson Unit

and asked for Aryan Brotherhood protection against the prison’s “blacks and

Mexicans.” Snow further claimed that, on one occasion, Fennell told Snow that his

(Fennell’s) fiancée “had been sleeping around with a black man behind his back.”

According to Snow, toward the end of the conversation, Fennell said, “I had to kill

my n*****-loving fiancé[e].”

• An unnamed insurance salesperson 5 claimed in a 2019 affidavit that, sometime in

November 1995, she was at a “lodge hall” gathering where Fennell was

moonlighting as a security guard when she struck up a conversation with Stacey.

The salesperson convinced Stacey to apply for a life insurance policy. As she was

filling out the form, Stacey remarked, “I really don’t know why I need life insurance

since I am so young.” Fennell allegedly replied, in the salesperson’s presence, “If I

ever catch you messing around on me, I will kill you and no one will ever know it

was me that killed you.” From Fennell’s tone, the salesperson sensed that Fennell’s

comment “was not presented as a joke.” The salesperson “took it as a threat on

[Stacey’s] life.” The salesperson further claimed that, in 2015, she wrote letters to

Governor Greg Abbott and Attorney General Ken Paxton to tell them what she

knew. The salesperson said that she never heard back from them.

• Former BCSO deputy Charles Wayne Fletcher stated in a 2019 affidavit that he

worked with Fennell for a time and that he and his wife were friends with Fennell

and Stacey. Fletcher claimed that, on one occasion in March 1996, Fletcher was at

Fennell and Stacey’s apartment, and it seemed to Fletcher that Fennell and Stacey’s

relationship was “not in a good place.” They “were short with each other and raised

their voices . . . when they spoke.” According to Fletcher, Fennell confided in him

during that visit that “he believed Stacey was ‘fucking a n*****.’” Fletcher further

5

In a footnote to his -10 application, Reed explained that, “out of respect for [this]

witness’s safety concerns” and “in light of Mr. Fennell’s release from prison,” he had redacted

all identifying information from this witness’s affidavit. Reed represented that the State knew the

witness’s identity and that State investigators had already interviewed her. The insurance

salesperson later testified at the -10 hearing. See infra p. 67 (testimony of Rubie Volek).

REED — 55

stated that he attended Stacey’s funeral, and that before, during, and after the

service, Fennell seemed “cold, empty, and emotionless.”

• Former Lee County Sheriff’s Office (LCSO) deputy Jim Clampit stated in a 2019

affidavit that he attended Stacey’s funeral. Clampit alleged that, during the viewing

services, he was standing next to Fennell when he heard Fennell say “something

along the lines of, ‘You got what you deserved.’” According to Clampit, Fennell

was directing this comment at Stacey’s body. Clampit was “shocked and floored”

by Fennell’s words, because it did not strike Clampit as “something a grieving

partner would say to their murdered fiancé[e].”

• Former BCSO deputy Richard Derleth stated in a 2019 affidavit that he knew

Fennell through his work and that he “vaguely knew Stacey Stites from her job at

… H-E-B.” According to Derleth, he sometimes chatted with some of the other

Bastrop H-E-B employees. One time, before Stacey died, a checker at H-E-B told

Derleth that Stacey’s coworkers “would keep a look-out for Jimmy Fennell to see if

he would come into the store.” The checker allegedly told Derleth that if H-E-B

employees saw Fennell coming into the store, “they would tell Stacey and she would

run and hide from Jimmy.” The checker also stated that the employees were

“concerned that if they did not alert Stacey to Jimmy’s presence in the store before

he found her, he would start a verbal fight with her.” Derleth claimed that he told a

few people at “the Sheriff’s Office” about what he knew, but he was not sure what

they did with the information. He also stated, “[I] mostly kept [this information] to

myself because I tried to avoid creating a problem for the employees at H-E-B who

shared this with me.”

• Former Giddings resident Brent Sappington stated in a 2019 affidavit that, in early

1996, when he and his wife Vicki were at his father Bill’s apartment in the Rolling

Oaks Apartments in Giddings, he (Brent) heard “a lot of loud noises and banging”

coming from the apartment above. To Brent, it sounded like “loud arguing and

fighting.” When Brent asked Bill “what that was,” Bill said that it was “Jimmy

yelling and screaming and ‘getting into it’ with Stacey.” Brent claimed that Bill had

previously told him that he had heard Fennell yelling abusive things at Stacey at

night.

• Vicki Sappington, Brent’s wife, stated in a 2019 affidavit that her father-in-law Bill

Sappington lived at the Rolling Oaks Apartments in Giddings. According to Vicki,

Bill was “very concerned about the way Jimmy treated Stacey.” Bill heard “loud

noises and thumping sounds at all times of the night from arguments above him.”

Fennell’s language toward Stacey was abusive, aggressive, and angry, and Bill

believed that Fennell was physically abusing Stacey. Further, Bill was “devastated”

when Stacey died. He told Brent and Vicki that he had contacted law enforcement

to tell them what he knew, but they told him “that Jimmy would not do that type of

REED — 56

thing and was not involved in Stacey’s death.” According to Vicki, until the day Bill

died, he “never believed that anyone other than Jimmy Fennell could be responsible

for Stacey’s murder.”

• In a 2019 affidavit, former Bastrop H-E-B employee Rebecca Peoples described

Stacey as “very nice, very pretty, and very strong.” According to Peoples, Stacey

often spoke about her engagement, saying that she was afraid of her fiancé (but

never explaining why). Peoples claimed that Stacey also “mentioned that she was

having an affair with a black man.” Peoples stated that she did not come forward

with this information sooner because she did not realize its importance and no one

had ever asked her about it.

Reed also directs our attention to much of the pre-existing body of evidence,

including:

• Investigative reports regarding Stacey’s murder (report excerpts from the Texas

Rangers, DPS Crime Lab, BCSO, and BPD);

• Affidavits and letters from scientific and forensic experts (Merrill Lewen, Roberto

Bayardo, Werner Spitz, Michael Baden, Leroy Riddick, Brady Mills, Stephane

Sivak, Purnima Bokka, and Kevin Gannon);

• Witness statements and affidavits from lay witnesses (Rodney Reed, Alicia Slater,

Lee Roy Ybarra, Calvin Horton, Richard Scroggins, Pam Duncan, and Curtis

Davis); and

• Investigative reports regarding Fennell’s crimes and misconduct (the incidents

relating to Aida Fennell, “Amanda Smith,” “B.A.,” Angie Smith, Kelly Ramos,

Mary Ann Bone, Jamie Bolin, and the Jimmy Lehman lawsuit).

Reed’s -10 application makes four allegations. First, Reed alleges that the State

violated Brady by suppressing the information that former Bastrop-area law enforcement

officers Charles Fletcher, Jim Clampit, and Richard Derleth possessed. Second, Reed

alleges that the affidavits of Arthur Snow, Charles Fletcher, the unnamed insurance

salesperson, the Sappingtons, and Richard Derleth show that Fennell testified falsely at

trial. Third, Reed alleges that his new evidence makes it clearer than ever before that he

REED — 57

did not receive effective assistance from his trial counsel. And fourth, Reed alleges that his

new evidence is so probative of his innocence as to “satisf[y] both Elizondo and Article

11.071, Section 5(a)(2).”

On November 15, 2019, we held that Reed’s Brady, false testimony, and actual

innocence claims satisfied Section 5. See Ex parte Reed, No. WR-50,691-10, 2019 WL

6114891 (Tex. Crim. App. Nov. 15, 2019) (not designated for publication). We remanded

those claims to the habeas court “for further development.” Id. at *2.

B. The State’s Answer and the Pre-Hearing Disclosure

The State answered Reed’s -10 application in April 2020, arguing that:

• Reed’s Brady claim was barred by laches and was meritless in any event;

• Reed’s false testimony claim was barred by laches; could not afford him relief

because its legal basis, Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009),

does not apply retroactively; and was meritless in any event; and

• Reed’s actual innocence claim was meritless because most of Reed’s evidence was

not “newly available”; most of what was newly available could have been developed

sooner; and what could not have been developed sooner was unreliable.

On July 6, 2021, the habeas court held a status hearing. At this hearing, Reed’s

habeas team accused the State of additional Brady violations. Andrew MacRae, one of

Reed’s habeas lawyers, explained that, on June 25, 2021, he had received two letters from

one of the State’s habeas lawyers, Matthew Ottoway.

In the first letter, Ottoway stated that he had recently discovered certain “witness

interview summaries . . . created by the trial prosecution team in preparation for the

underlying 1998 criminal prosecution.” Ottoway did not divulge who prepared these

summaries, but he outlined their contents as follows:

REED — 58

• “[H-E-B store manager] Ron Haas stated that he had heard rumors at HEB that

[Reed] knew Stacey Stites and would sometimes visit her at HEB. Mr. Haas said

that Andrew Cardenas might have mentioned that [Reed] and Stacey Stites were

acquaintances.”

• “[H-E-B employee] Andrew Cardenas stated that Jose Coronado said he saw [Reed]

speaking with Stacey Stites at HEB and got the impression from Jose that [Reed]

and Stacey Stites knew each other. Mr. Cardenas denied seeing [Reed] in the store

or speaking with Stacey Stites.”

• “[H-E-B employee] Jose Coronado denied telling anyone that [Reed] came into

HEB and visited with Stacey Stites.”

Ottoway attached the witness interview summaries to the letter. The letter ended with a

disclaimer: “You are being given this information in an abundance of caution to provide

you anything that might conceivably be considered exculpatory or mitigating. The State

does not vouch for the veracity of these statements.”

In the second letter, Ottoway wrote that, in preparation for the upcoming evidentiary

hearing, one of the State’s potential habeas witnesses made a statement that “might

conceivably be considered exculpatory or mitigating.” Specifically:

Suzan Hugen … a former HEB employee, stated that she saw [Reed] and

Stacey Stites at the store on one occasion, maybe about a week before Stacey

Stites’s death. Ms. Hugen said that Stacey Stites introduced [Reed] to her as

a good or close friend and that they appeared friendly, giggling, and flirting.

Ms. Hugen said that [Reed] was with another man who was friends with the

son of a woman who worked in the photo lab and that [Reed] was friends

with this woman’s son as well. Ms. Hugen also believed that Stacey Stites

would not have locked her seatbelt in the way it was found. She believes that

she told this information to a man working security named “Paul,” who was

short, skinny, wore glasses, had salt-and-pepper hair, and may have worked

for a police department. It was possibly [BPD officer] Paul Alexander, but

Ms. Hugen was not sure.

This second letter ended with the same disclaimer as the first.

REED — 59

Having presented the habeas court with this information, Reed asked the court to

(1) order the State to identify which member of the prosecution team prepared the witness

interview summaries in question, (2) order further discovery, and (3) add (what Reed

regarded as) these newly discovered Brady violations to the scope of the upcoming (-10)

evidentiary hearing. The habeas court denied Reed’s second and third requests but granted

the first.

The State’s disclosure letters formed part of the basis for Reed’s tenth subsequent

(-11) 11.071 application, which he filed in December 2021. We resolve Reed’s -11

application in a separate order.

C. Expert Reports

Before the evidentiary hearing on Reed’s -10 application, both sides consulted with

experts and had them reduce their opinions to written reports.

1. Reed’s Experts

Reed’s expert Dr. Andrew Baker, the chief medical examiner for the Hennepin

County Medical Examiner’s Office, authored a report dated March 12, 2020, in which he

reached four overarching conclusions.

First, Baker disagreed with Bayardo’s testimony that Stacey’s death could be

“estimat[ed]” as being “around 3:00 a.m. on April 23, 1996 … give or take one or two

hours.” Based on the degree of rigor mortis observable on the time-stamped Bluebonnet

Drive scene video, Baker concluded that Stacey must have died “hours before” the State’s

theorized time of death. Further, the “antigravitational” lividity patterns on Stacey’s body

at the Bluebonnet Drive scene showed that: (1) Stacey “died in a different position, and her

REED — 60

body was moved some time after death,” and (2) Stacey’s body was in “some other position

for many hours longer than the two hours allowed by a time of death between

approximately 3:00 a.m. and 5:00 a.m.”

Second, Baker criticized Blakley’s testimony that there was “published

documentation [stating] that 26 hours is about the outside length of time that tails will

remain on a sperm head inside the vaginal tract of the female.” Baker observed that, in the

very Willott and Allard study that Blakley referenced, there was “a table summarizing prior

studies of the persistence of sperm in the vagina after intercourse.” The table included one

study (Davies and Wilson) finding “sperm with tails up to 72 hours after intercourse” and

another (Silverman and Silverman) concluding that “the proportion of sperm with tails did

not vary with time since intercourse.”

Third, Baker disagreed with Blakley’s testimony that “[o]ftentimes one can tell if a

bruise is recent just by the color.” Baker initially noted that Blakley was not a physician,

and he went on to assert that Blakley’s testimony was “seriously flawed.” Even as early as

1991, Baker explained, it had been “established” that “red, blue, purple, and black

[coloration] can appear at any time in the evolution of a contusion; and bruises of identical

age and cause, even on the same person, may appear different.”

Fourth, Baker criticized Bayardo’s testimony regarding Stacey’s anal injuries.

Baker stated that anal dilation in a deceased person “is a perfectly normal postmortem

phenomenon” and therefore “means nothing” in terms of its tendency to show anal

penetration. Baker also claimed that the autopsy photos did not show anal lacerations. He

REED — 61

accused Bayardo of mistaking “visible anal crypts and papillae (normal anatomy)” for

“evidence of laceration.”

Reed’s habeas lawyers also prepared, before the hearing took place, a document that

they styled a “Peer Review Report” (PRR). The PRR stated that its

“signatories . . . include[d] forensic pathologists from across the United States, as well as

from Canada, the United Kingdom, and Hong Kong.” The PRR reached conclusions that

were generally consistent with Baker’s report:

• “The proffered testimony at Mr. Reed’s trial regarding Ms. Stites’[s] time of death

was incorrect and without scientific merit. Ms. Stites died hours before 3 a.m. on

April 23, 1996.”

• “The supplied testimony regarding the length of time sperm persist was false and

created far too narrow a window of time for recent sexual activity.”

• “The supplied testimony regarding purported anal findings, and their presumed

significance, was false.”

The PRR also claimed that Stacey’s autopsy “provided no physical findings that would

allow a conclusion that a sexual assault . . . occurred.”

2. The State’s Experts

State’s expert Deborah Davis, Ph.D., a professor of psychology at the University of

Nevada, submitted a paper titled, “Areas of Potential Witness Memory Testimony.” In the

paper, Davis stated that:

[I]n assessing potential issues of accuracy of eyewitness testimony[,] an

expert will consider factors that can compromise accuracy at each of three

stages of memory: (1) Encoding (when the events or person are witnessed),

(2) Storage (the interval between the original events and any subsequent

recounting of them), and (3) Retrieval (when the events are retrieved from

memory and recounted to others).

REED — 62

Davis emphasized that, over time, “memory is subject to a large number of potentially

damaging influences.” Fading occurs for all memories; source dissociation (i.e., when the

association between an event and its context weakens or dissolves) occurs more and more;

the potential for new information to interfere with the original memory increases; thought

processes can change; beliefs about what happened can change; and clarity and certainty

tend to diminish.

State’s expert Dr. Suzanna Dana, a forensic pathologist for Central Texas Autopsy,

PLLC, authored a report dated June 11, 2021, in which she offered three overarching

opinions. First, Dana thought that the lividity patterns on Stacey’s body were “totally

consistent” with the position in which the body was found (“laying face up on an incline

such that the right side of the body . . . [was] at a lower[,] more dependent position than

the left side”). Dana concluded that Stacey’s body was placed “in the area and position in

which it was found shortly after her death, or no later than 6 hours after death.” Dana further

claimed that the lividity pattern on Stacey’s body was “inconsistent with the theory that

[she] was in a face down position with her right arm lower than the rest of the body . . . for

a period of several hours.”

In addition, based on the “residual rigor mortis” depicted on the Bluebonnet Drive

video, the typical progression of rigor mortis, and the environmental conditions in Bastrop

on April 23, 1996, Dana placed Stacey’s time of death “between 3 AM and 5 AM of the

day the body was found.” Dana stated that the “degree of heating” present in Bastrop on

April 23, 1996 (a high of 79 degrees Fahrenheit) “would accelerate the normal

development and loss of rigor by possibly one or two hours.” In Dana’s opinion, “[i]f death

REED — 63

had occurred before midnight” on April 22, “there should be no rigor apparent at all” in

the crime scene video, but there should be “obvious unequivocal signs of decomposition.”

And Dana stated that there was no “definitive evidence . . . of decomposition” when

Stacey’s body was found—at least not to the point of “decompositional purge fluid”

flowing from Stacey’s mouth, as Reed’s experts had theorized. Further, the “skin slip[s]”

and third-degree-burn-like areas were more consistent with “prolonged exposure to the

sun” than decomposition. Dana also noted that a 3:00–5:00 a.m. time of death was

consistent with other known facts. For example, Stacey was dressed for her 3:30 a.m. work

shift, and she usually left the house around 3:00 a.m.

Second, Dana was “unable to verify the presence or absence of anal injuries” in her

review of the autopsy photos. She noted that “[t]he anus does appear to be widened but this

could be due to postmortem relaxation.” Ultimately, Dana could not give an opinion as to

whether there was “any anal/rectal manipulation or penetration in this case.”

Third, Dana stated that the presence of intact spermatozoa “usually is more

consistent with the sperm being deposited within hours of death.” She gave this opinion

fully cognizant of “the literature that intact spermatozoa can be observed in postmortem

samples taken days after death.” But in Dana’s experience, she had not personally observed

intact spermatozoa in cases where the sampling was done more than twelve hours after

death.

Finally, Dana criticized the State’s evidence-collection processes in this case. She

believed that the “undressing of the body and the subsequent taking of swabs and other

physical evidence at the scene was inappropriate and dangerous for loss of evidence and

REED — 64

possible contamination of samples.” In Dana’s opinion, those things should have taken

place “in a controlled environment at the place of autopsy under the direct supervision of

a trained forensic pathologist.” Dana stated that it was not possible to know how much

sperm was present on and in Stacey’s body and clothing without sampling multiple areas

“as well as the entirety of the vaginal vault.” And since there was no documentation of how

the rectal swabs were obtained at the time of autopsy, Dana concluded that there was no

way to know “if semen … was actually deposited in the rectum or had flowed to the

anus . . . from the vagina.”

State’s expert Dr. Norma Jean Farley, a deputy chief medical examiner at the Bexar

County Medical Examiner’s Office, authored a report dated July 1, 2021. In it, she stated

the following opinions:

• The lividity patterns on Stacey’s body were consistent with the positioning of her

body at the Bluebonnet Drive site;

• The forensic and circumstantial evidence suggested that Stacey was killed between

3:00 and 5:00 a.m. on April 23, not in the late evening hours of April 22; and

• Spermatozoa begin to degenerate within hours of ejaculation and eventually lose

their tails, so it was “possible, but less likely” that the sexual contact in this case

occurred before the day of Stacey’s death.

D. The -10 Hearing

1. Reed’s Witnesses

The -10 hearing began on July 19, 2021. Reed called nineteen witnesses. First,

Andrew Baker primarily testified to the opinions expressed in his pre-hearing report. See

supra p. 59. But he was also asked to comment on various aspects of Dana’s pre-hearing

report. See supra p. 62. Baker noted that he and Dana agreed that Stacey’s rigor appeared

REED — 65

to be “on the wane” by the time the crime scene video was made. But he questioned Dana’s

assertion that the environmental conditions in Bastrop at the time could affect the rigor

progression by “one or two hours.” Baker was adamant that time-of-death is at best an

estimate—it “cannot be determined with certainty.” Baker also criticized Dana’s claim that

intact spermatozoa “usually [are] more consistent with the sperm being deposited within

hours of death.” Baker cited published research available at the time of trial showing that

Blakley’s “26 hour” testimony was incorrect.

On cross-examination, Baker conceded that the following factors might have

accelerated the rigor process: “antemortem exertion” (i.e., strenuous physical activity right

before death); warm climate; humidity; and the heavy blanket over Stacey’s body. The

State also asked Baker about the positioning of Stacey’s body when she was found

(propped up on a mound of dirt, partly on her back, partly on her side) and Riddick’s 2006

affidavit, see supra p. 33, in which Riddick seemed to suggest that the lividity patterns on

Stacey’s body were unremarkable. Baker tentatively agreed that if Stacey’s body was lying

on a mound with her right side lower than her left side, then the lividity pattern on her right

side was where one would expect it to be. The State also asked Baker whether it was

significant that Stacey was seemingly dressed for work on April 23, 1996. Baker stated

that, as a medical examiner, it was not his job to gauge the significance of non-forensic

circumstantial evidence like that. “That would be the Court’s job to figure out; it’s not the

medical examiner’s.”

Charles Fletcher essentially testified to the contents of his 2019 affidavit, supra p.

54, in which he claimed that Fennell told him that he thought Stacey was “fucking a

REED — 66

n*****.” But Fletcher added at least one new detail: At the hearing, Fletcher stated that he

recalled Curtis Davis being present when Fennell made this comment. It came out during

Fletcher’s testimony that Curtis Davis was deceased. Fletcher claimed to have learned of

that fact just “yesterday.” On cross-examination, Fletcher asserted that he waited so long

to come forward because he wanted to protect his family. He also ominously suggested

that he did not want what happened to Ed Selmala, see supra p. 16, to happen to him. 6

Rubie Volek revealed herself as the unnamed insurance salesperson who had alleged

in a 2019 affidavit that she once heard Fennell threaten to kill Stacey if he ever caught her

“messing around.” Supra p. 54. Volek generally testified to the contents of her affidavit.

On cross-examination, Volek claimed that she had tried to contact Bryce Benjet in the early

2000s (in response to a newspaper ad that Benjet had placed) but was unsuccessful. Volek

claimed that she attempted to contact the Governor and Attorney General in 2015 when

she learned about Reed’s impending execution.

Jim Clampit’s live testimony generally tracked the contents of his 2019 affidavit,

supra p. 55, in which he claimed that Fennell uttered something along the lines of “You

got what you deserved” at Stacey’s funeral. On cross-examination, Clampit stated that he

did not realize the importance of this information at the time. But “as the case became

publicized,” he decided he needed “to say something to somebody.” The State also showed

6

At the -10 hearing, it came out that there is a conspiracy theory that Bastrop authorities

murdered Ed Selmala because of his role within the investigation into Stacey’s death. When

asked about the conspiracy theory, Fletcher stated, “You don’t shoot yourself with your off

hand.”

REED — 67

that, in 1982, Clampit’s former employer, the Texas Parks and Wildlife Department,

suspended Clampit from his duties for committing perjury while testifying in uniform.

Arthur Snow testified somewhat consistently with his 2019 affidavit, supra p. 54,

but some key details changed. At the -10 hearing, Snow testified that what Fennell actually

said to him was, “You wouldn’t believe how easily a man’s belt would break when you

strangle a n*****-loving whore.” However, those were not the words Snow used in his

affidavit:

Toward the end of the conversation Jimmy said confidently, “I had to kill my

n*****-loving fiancé[e].”

(Emphasis added). Further, on cross-examination, Snow stated that Fennell did not

approach him personally. According to Snow, another Aryan Brotherhood member told

Snow that Fennell wanted protection. But Snow’s affidavit said otherwise:

In about 2010, a white man named Jimmy Fennell (“Jimmy”) approached

me at the Stevenson Unit wanting the protection of the Aryan Brotherhood.

Jimmy said he needed protection[.]

(Emphasis added).

Snow claimed that he was no longer affiliated with the Aryan Brotherhood and that

it was never his desire to join the gang. Snow asserted that, in some sense, it was the State’s

fault that he had joined. The State, Snow explained, “promote[s] racism” in its prisons, so

Snow had to join the Aryan Brotherhood just “[t]o stay alive.” But again, that was not the

gist of Snow’s affidavit:

I was brought up to be prejudiced against black people. As a kid, I remember

my grandparents using the word “n*****” to describe black people. They

used the term so casually. As a result of my upbringing, I adopted the same

REED — 68

values and beliefs I was taught. I didn’t know any other way to be, and so

when I went to prison, I joined the Aryan Brotherhood.

(Emphasis added).

Snow was adamant that, even if there were some differences between his affidavit

and his testimony, the core of what he was saying about Fennell was true. As for any

inconsistencies, “If you believe me, you believe me. If not, I don’t give a shit. I really don’t,

man. I’m telling the truth, and if you want to play a word game, play it … He said what he

said, man. I don’t care after that.” Snow eventually invoked his Fifth Amendment right

against self-incrimination but agreed to keep testifying after a “cooling-off break.”

When cross-examination resumed, the State questioned Snow about who had

prepared his affidavit. Snow stated that individuals from the Innocence Project had

prepared his affidavit for him based on information that he had previously given them and

that he signed it in front of them when he was in the Hays County Jail. The State then

produced jail visitation records showing that nobody from the Innocence Project visited

Snow on the date his affidavit was signed. The State also covered Snow’s lengthy criminal

history.

Michael Bordelon, a prison inmate who claimed to have befriended Fennell when

they were incarcerated together, testified that, sometime toward the end of 2012, he had a

conversation with Fennell in which Fennell said that his fiancée was “screwing a N-word”

but that he “took care of the problem.” Bordelon claimed that, as Fennell said this, he made

a neck-throttling gesture with his hands. Bordelon said that the conversation ended with

Fennell telling him, “[T]hat damn ‘N’ is going to do the time.”

REED — 69

Reed offered into evidence an affidavit that Bordelon executed in February 2020

describing these events. Of note, the affidavit did not include the allegation that Fennell

made a neck-throttling gesture when speaking about his fiancée. When the State asked

Bordelon to explain the differences between his affidavit and his testimony, Bordelon

stated, “As time goes on, you remember other things.” Bordelon admitted on cross-

examination that he decided to come forward with this information after watching an

episode of the television program Dr. Phil covering Reed’s case.

Former Bastrop H-E-B employee Victor Juarez testified that, in 1996, he saw Reed

and Stacey together at a Dairy Queen or a Wal-Mart. According to Juarez, he was driving

at the time. On cross-examination, Juarez admitted that he decided to come forward with

this information after watching an episode of the Dr. Phil show.

Former Bastrop H-E-B employee Rebecca Randall testified that she used to see

Reed and Stacey chatting together inside the store. She further claimed that, on one

occasion, she saw them having a quiet conversation while standing very close to one

another. Finally, Randall stated that she “possibly” saw Stacey playing basketball with one

of “the Reed brothers” at Fisherman’s Park. Randall suggested that she did not come

forward with this information sooner because nobody had “approached” her.

Former Bastrop H-E-B employee Paul Espinoza testified that he once saw Fennell

enter the store, march up to Stacey in an aggressive way, and “scold[]” her. According to

Espinoza, Stacey looked scared and embarrassed. Later, Espinoza went to check on Stacey

in the cooler area. She was crying and wiping away tears, but she said she was fine.

Espinoza stated that he was able to identify the man in the store as Fennell “[t]hrough

REED — 70

newspapers and the media.” He claimed that he did not come forward with this information

sooner because, as a “minorit[y],” he was scared of what the town might have done to him.

Former Bastrop H-E-B employee Suzan Hugen claimed to have been friends with

Stacey, whom she described as a good person. Hugen testified that, on one occasion, when

she and Stacey were walking out the door of the H-E-B, Fennell pulled up in his truck with

a “mad” look on his face. According to Hugen, Stacey’s “entire demeanor changed.” She

quit laughing, went “white as a ghost,” and said, “I got to go. I’ll see you tomorrow.” Hugen

stated that she saw hand marks on Stacey’s wrist that she recognized, from personal

experience, as a sign of abuse. Hugen also testified that, on another occasion, she (Hugen)

met Reed inside the store. According to Hugen, Stacey introduced Reed to her as “my very

good friend, Rodney.” Hugen claimed that Stacey was “very flirty with him, giggly, happy.

It seemed like more than a friendship.” Hugen claimed that she told BPD officer Paul

Alexander that Reed and Stacey were friends.

Forensic pathologist Gregory Davis testified that he agreed with everything in Dr.

Baker’s report and the PRR. Supra p. 61. Of note, when Reed’s habeas lawyers sought to

introduce the PRR through Davis, the State objected. The State argued that the PRR was

neither peer-reviewed nor a report from an actual pathologist; Reed’s habeas lawyers

themselves prepared the PRR, and they had been taking it to various pathologists and

asking them if they agreed with its conclusions. Davis signaled that he agreed with the

PRR’s conclusions, but the habeas judge did not allow the document in evidence. On cross-

examination, Davis conceded that it was “theoretically possible” that the facts of a warm,

REED — 71

humid day in Texas, coupled with a heavy blanket and direct sun, could “speed the process

of rigor.”

Richard Scroggins testified consistently with his 2015 affidavit, supra p. 48, in

which he claimed that he had seen a man screaming vulgarities at a young woman outside

a Whataburger in Bastrop in April 1996. Scroggins claimed that he was able to identify the

man as Fennell from a picture he saw in the Austin Chronicle in 2005. He “believe[d]” the

young woman “to be Stacey Stites.”

Brent Sappington testified more or less consistently with his 2019 affidavit, supra

p. 55, in which he claimed to have heard Fennell “yelling and screaming” at Stacey in the

apartment above his father’s. However, Brent added that, on one occasion, at church, his

father had approached an Assistant District Attorney named Ted Weems and a police

officer named Garnett Danewood to tell them what he heard at his apartment. According

to Brent, “They just simply told him that they already had their suspect, that they didn’t

need nobody’s help, . . . to mind your own business, to hush his mouth.”

Vicki Sappington testified in line with her 2019 affidavit, supra p. 55, in which she

claimed that her father-in-law had told her that he heard Fennell “yell[ing] and

scream[ing]” at Stacey in the apartment above him. On cross-examination, Vicki agreed

that if her father-in-law had “heard something” the night of April 22, 1996, he surely would

have said something to her.

Cynthia Schmidt, a GPD dispatcher from 1992–98, testified that a GPD officer

named Gary Joe Bryant once told her that Fennell had previously said to him, “If I ever

catch [Stacey] fucking a n*****, I’ll kill her.” Schmidt stated that the Texas Rangers came

REED — 72

to interview people at the GPD station about a week after Stacey died. According to

Schmidt, the Rangers’ goal was to ascertain whether “Jimmy could have had anything to

do with [Stacey’s] murder.” Schmidt said that the interviews took place in the break room

with the door ajar and GPD employees lined up in the hall outside. “And so not wanting to

speak out with the door open,” Schmidt allegedly said “no,” while nodding “yes,” when

the Rangers asked her if she thought Fennell was involved in Stacey’s death. When the

State asked Schmidt why she did not just ask the Rangers to shut the door, Schmidt

explained that she did—she had “motioned” for the Rangers to shut the door—but they did

not get the hint. In a written declaration admitted in evidence during Schmidt’s testimony,

Schmidt stated that it was not until she was “contacted by Mr. Reed’s defense team” that

she felt like she was “finally put in a position” to share what she knew. Finally, Schmidt

claimed that she attended Stacey’s viewing and heard Fennell mutter, “At least the bitch

got to wear the damn dress.”

Alicia Slater’s testimony was generally consistent with her 2014 affidavit, supra p.

47, in which Slater claimed that Stacey told Slater that she (Stacey) was sleeping with a

black man named Rodney. On cross-examination, Slater stated that she did not start

reaching out to anyone about the Reed case until after she watched a documentary and saw

several Facebook articles about Reed’s case. Slater later acknowledged that she had

appeared on the Dr. Phil show to discuss what she knew about Reed’s case.

Calvin “Buddy” Horton testified consistently with his 2014 affidavit, supra p. 53,

in which Horton claimed that he had seen Reed and Stacey leaving the Dairy Queen in

Bastrop together in October or November 1995. Horton also reiterated that he was not

REED — 73

surprised “to see Stacey with a black man,” the implication evidently being that Stacey had

previously dated black men. On cross-examination, Horton conceded that he executed his

affidavit “19-plus years” after the events in question.

Brenda Dickinson, who worked at the Bastrop H-E-B from 1994 through 2004 and

claimed to have been friends with Stacey, testified that Stacey was initially excited about

her engagement, but that over time, she (Stacey) began to see Fennell in a different light.

He became jealous, controlling, and threatening. Dickinson testified that she went to an

H-E-B Christmas party with Stacey in 1995. Stacey said that Fennell was not there because

she did not want him there—he would only “make a scene.” At a certain point, Stacey said

she needed to get home because it was “past [her] curfew.” Dickinson also claimed that

she once saw Stacey “talking to an African American man in the store.” When Dickinson

asked Stacey who her “secret admirer” was, Stacey giddily responded, “He’s just a friend.”

According to Dickinson, Stacey said that her friend’s name was “Rodney.” Dickinson also

stated that, on one occasion, Stacey told her she was going out to lunch with “Rodney.”

Lastly, Reed called Fennell to the witness stand. Fennell acknowledged that the last

time he was subpoenaed to testify in relation to the Reed case (for the -08 hearing, in 2017)

he had invoked the Fifth Amendment on the advice of counsel. He testified that he decided

to testify at this hearing because he was no longer in prison.

Fennell stated that “[a] piece of [him] was ripped out” when Stacey died. He testified

that he started taking Xanax to cope with the grief and anxiety. He claimed that he could

not remember the funeral because he was “so deep in depression.” But he was certain that

he did not tell Stacey’s body that she “got what [she] deserved.”

REED — 74

Reed’s lawyers adduced evidence showing that Fennell emptied his bank account

on the morning of April 23, 1996. When they asked Fennell about it, Fennell initially

denied that he closed his bank account on the 23rd. Then, he stated that he could not recall

whether he had closed his account that day. When Fennell was shown a bank slip proving

that his account was closed and the funds withdrawn on April 23, Fennell said he had no

reason to disagree with the bank records. On cross-examination, Fennell testified that,

when his truck was found on the morning of April 23, his checkbook, which had been

inside the center console, was gone. According to Fennell, that might have been why he

contacted his bank. A BPD report was admitted showing that, on April 23, 1996, BPD chief

Ronnie Duncan had indeed told Fennell to contact his bank.

Regarding his criminal offenses and sexual misconduct, Fennell stated that, around

the time of Stacey’s murder, he “snapped.” Fennell testified that the wound caused by

Stacey’s murder had “festered up” in him, culminating in a sex addiction. That addiction,

Fennell testified, was the first “domino” to fall in terms of his sexual miscreancy. Fennell

claimed to have accepted responsibility for his actions. He also claimed that, in prison, he

“turned to God” and “started getting the help that [he] needed.” Fennell testified that, while

in prison, he received a bachelor’s degree in ministry and a master’s degree in theology.

Fennell also testified that he never associated with the Aryan Brotherhood or met

an inmate named Arthur Snow. He denied telling anyone that he had to kill his “N-word-

loving fiancé[e]” or that “You wouldn’t believe how easy a man’s belt would break when

you strangle a N-word-loving whore.” Fennell stated that he knew Michael Bordelon from

the Estes Unit, but he denied making any of the statements that Bordelon accused him of

REED — 75

making. Fennell further denied the accusations of Charles Fletcher, Jim Clampit, and

Richard Derleth. He denied that he was violent towards Stacey.

Significantly, Fennell admitted that, earlier in life and on more than one occasion,

he had used the “N-word.” When asked to clarify, Fennell responded, “I didn’t say I never

said that word. I said I didn’t use it all the time like people said I [did].” Fennell stated that

he stopped using “that word” when he became a police officer—he tried to be “more

professional about how [he] addressed people.”

Finally, Fennell stated that, in preparation for the hearing, he had been in contact

with the Attorney General’s office. Specifically, Fennell affirmed that he had (1) texted

with OAG investigator Missy Wolfe, (2) participated in “a couple of meetings with the

lawyers,” and (3) reviewed his trial testimony. When Reed’s habeas lawyer accused

Fennell of underselling the extent to which he had communicated with the State’s habeas

team, Fennell conceded that he had exchanged close to 100 text messages with Wolfe in

preparation for the hearing.

2. The State’s Witnesses 7

State’s expert Deborah Davis testified in line with her report concerning the

limitations on human memory at various stages. See supra p. 61. The State gave Davis

several hypotheticals corresponding to the people who had come forward over the years

claiming to have remembered evidence relevant to the Reed case. Davis consistently stated

7

For brevity’s sake, we do not include all of the State’s witnesses in this summary.

However, we have taken all of the relevant evidence, from the -10 hearing and elsewhere, into

account in assessing Reed’s actual innocence claims.

REED — 76

that there were reasons to doubt such claims, including: the passage of time; the lack of

contemporaneous reporting; media influences; the person not realizing the event’s

significance; poor opportunities for observation; stereotypes; and suggestibility.

Importantly, Davis agreed with the State that “media” (e.g., social media, newspaper,

television) accounts can sometimes constitute “outside influences that could [distort] a

person’s memory” of an event. She also stated that memory is influenced, at least in part,

by the person’s attentiveness at the moment of encoding: “[I]f you don’t think something

is important at the time, you’re less likely to pay attention to it.”

State’s expert Suzanna Dana essentially testified to the contents of her report

concerning time of death, the inconclusive evidence of anal penetration, and the relevance

of intact spermatozoa. See supra p. 62. Regarding intact spermatozoa, Dana stated that the

studies Baker cited for the proposition that spermatozoa can remain intact for longer than

26 hours had been done with live individuals—and “you can’t really take those studies

from live people and use them to evaluate findings in a dead person.” Dana also disagreed

with Baker’s description of the rigor “curve” (the process by which rigor begins, increases,

plateaus, decreases, and ends). It was Dana’s belief, based on what she regarded as the

correct, affected-by-the-ambient-circumstances rigor curve, that Stacey died around 3:00–

5:00 a.m. (or “thereabouts”) on April 23, 1996. However, Dana agreed with Baker that a

bruise’s color and appearance has no bearing on its age. Dana stated that Blakley’s

testimony to the contrary was potentially misleading and beyond Blakley’s expertise.

Like Dana, State’s expert Norma Jean Farley testified consistently with her report

concerning time of death, the relevance of intact spermatozoa, and the non-dispositive

REED — 77

evidence of anal penetration. See supra p. 64. Farley added that, in her opinion, the

evidence suggested that Stacey was carried to, and placed at, the Bluebonnet Drive crime

scene: “[I]t looks like someone was carrying her. The knees are bent, the arms are over the

head, she’s being laid there.” Farley also agreed with Drs. Baker and Dana that one cannot

“accurately date” a bruise based on its color.

Amber Moss, who worked in the DPS Crime Lab in Garland, Texas, testified that

she had performed postconviction DNA testing in this case. Moss explained that the

original DNA testing in this case was known as “DQ alpha and D1S80” testing. Moss stated

that those kinds of tests are “less discriminating than what we do today.” Reviewing the

original (1997–98) DNA results, Moss noted that testing done on the vaginal swabs and

Stacey’s underwear had produced results “consistent with Rodney Reed[’s]” DNA profile.

Further, the “male DNA on the breast swabs was consistent with Rodney Reed.” Finally,

under the original forensic testing, th

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