# Ex Parte Brandley

> Court of Criminal Appeals of Texas · December 13, 1989 · 781 S.W.2d 886

URL: https://www.frixlaw.com/law-library/cases/9765478

## Case

- **Full name:** Ex Parte Clarence Lee BRANDLEY, Applicant
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 13, 1989
- **Citations:** 781 S.W.2d 886; 1989 Tex. Crim. App. LEXIS 216; 1989 WL 149733
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Berchelmann, Duncan, White, Miller, Campbell, McCormick, Davis
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9765478

## How later opinions describe it (automated extraction)

- recognizing cognizability of due process claims in habeas corpus proceedings
- finding the cumulative effect of the investigative procedure deprived the defendant of due process of law

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
I join Judge Campbell’s Dissenting Opinion and reiterate that even if every finding by the habeas court is taken as true, there is no legal precedent upon which the majority can grant the relief it does. The records before this Court of applicant’s two trials and two habeas hearings totally belie the habeas court’s findings of fact. The only “blind focus” which has occurred in the history of this cause comes today with an opinion that so manipulates the law and the facts as to do irreparable harm to the future of Article 11.07, V.A.C.C.P.
I write merely to point out a few of the many glaring factual errors made in the majority opinion. Although the findings of the habeas court, if taken as factual, may raise the specter that another or others may have been involved with applicant in the commission of this murder, there is absolutely no evidence which remotely tends to exculpate applicant or to show that he is not guilty.
In finding that applicant is entitled to habeas corpus relief in this case, the majority has relied extensively upon the habeas court’s findings of fact. The habeas judge 1 has concluded, and the majority agrees, that the State has violated applicant’s due process rights because “the investigative procedure was so impermissibly suggestive that false testimony was created.” Although neither the habeas court nor the majority has cited relevant authority, both rest their conclusions on “the facts underpinning” the habeas court’s conclusions. Significant findings by the habeas court, however, either are not supported by the record, are clearly erroneous, or are the result of testimony taken out of context. Almost all findings by the habeas court judge that are utilized by the majority are inaccurate in some form.
The majority begins its recitation of the facts relating to the investigation of the murder by stating that Texas Ranger Wesley Styles was called in to head the investigation and that he immediately arrested applicant. This is not supported by the record and is the first of many absolutely distorted and biased reporting of the record. The District Attorney of Montgomery County, James Keeshan, called Styles to aid in the prosecution after the Conroe Police Department had already developed evidence relating to the murder. Among the facts known to the Conroe Police and Styles before the arrest of applicant were: Cheryl Ferguson was a member of a girl’s volleyball team that had come to Conroe High School at around nine o’clock on Saturday morning, August 23, 1980, to participate in a tournament. For some reason or another, Cheryl had left the gym area where the other girls had begun to warm up for their matches. When Cheryl did not return the other girls began to search the school grounds.
Written, sworn statements were taken from applicant and three other Conroe High School janitors (Sam Martinez, Gary Acreman and Henry Peace) before applicant’s arrest and before Styles’s involvement. These initial statements are all consistent regarding the following: On Saturday morning, August 23, 1980, four janitors along with applicant, their supervisor, were preparing the school for various activities. Applicant had directed the janitors to set up chairs in the school cafeteria. The janitors finished their jobs. While looking for applicant to see if anything else needed *897 to be done, they saw a girl go into the restroom. After the girl entered the restroom, applicant arrived with toilet paper. One of the janitors told applicant that a girl was in the restroom. Applicant told the janitors to go across the street to the vocational building. The janitors did so and waited there for applicant to come open the doors. Applicant, however, never came over to the building. About forty-five minutes later, applicant called across the street to one of the janitors to come and get the keys to the doors. The janitors completed their tasks in the building and were told by applicant to go home. Peace remained to help applicant lock the cafeteria doors. While doing so, applicant and Peace ran into the volleyball players looking for Cheryl. Applicant decided to look for the girl. He and Peace found the door to the auditorium to be unlocked; they checked inside. Applicant told Peace to look in the balcony behind the stage area “because some of the kids would get behind the boards and hide.” (Applicant’s Statement.) Peace discovered Cheryl’s body behind a sheet of plywood.
The murder occurred on August 23,1980. The District Attorney’s Office, requested Styles’s assistance in the investigation on August 28, 1980, and Styles began work on the case the next day. When Styles arrested applicant he was armed with information by the Conroe Police Department along with an arrest warrant supported by the following affidavit:
“Affiant, an officer with the Conroe Police Department (CPD) investigated the above offense along with other CPD officers. The victim, a 16 year old white female was found naked and strangled in a loft area above the auditorium stage in the main building at the Conroe High School. She had been missing for about two hours when her body was found. The victim had been at the school for a short time to attend a volleyball tournament being held in a gym near the main building. CPD officers found her clothing two days later in a plastic bag identical to those used by school personnel. Affiant and other CPD officers interviewed and took statements from tournament participants and from all custodians on duty on the morning of August 23, 1980 when the crime occurred. Based on the location of the body, the disposal of the clothing and the fact that auditorium and other doors in the main building were normally locked on Saturday (as this was), it appeared that the offense was probably committed by an employee of the school.
“Affiant has probable cause to believe and does believe that the offense was committed by Clarence Brandley, a black male, for the following reasons:
“1. Brandley was arrested by CPD officers for committing an attempted rape and abduction on 3/7/79 according to CPD offense reports.
“2. Said Brandley is presently on felony probation for possession of a prohibited weapon.
“3. Said Brandley, according to four other custodians, was the only school employee in or around the main building who had keys to the auditorium, storerooms and other doors in the building at the time of the offense.
“4. According to the other custodians, Brandley’s whereabouts are unaccounted for during a 45-minute period at about the same time as that of the victim’s disappearance.
“5. A pubic hair found on the victim’s body has been determined by the Department of Public Safety Lab in Austin, Texas, to be that of a black male, and appears identical to pubic hairs removed from said Brandley’s person.
“6. Said Brandley is the only custodian or employee who was on duty at the location who is a black male.
“7. A Houston Police Department Polygraph Supervisor advised Captain Monty Koerner that said Brandley had failed a polygraph test administered to him on August 25, 1980, in connection with the offense.”
The majority’s statement that Styles arrested applicant with the “preconceived, *898 premature notion that applicant had committed the murder,” ignores that Styles had the written statements of essential witnesses before him and arrested applicant under judicial authority. Any implication made by the majority that Styles investigated the murder offense without resort to relevant information in an effort to convict applicant is not supported by the record and should be rejected.
The majority opinion also attempts to discredit the walk-through that Styles conducted with three of the janitors. The majority writes that the walk-through “generated” stories. The majority therefore holds that because one of the janitors, John Sessums, is now implicating Gary Acreman nine years after the murder, this leads to the conclusion that the walk-through “created false testimony.”
The majority is wrong. First, as Judge Campbell points out in his dissent, John Sessums did not testify at applicant’s trial. 2 It is, therefore, impossible that anything he now asserts as being true created false testimony on his part at trial. It is outstanding that the majority is willing to place faith in Sessums’s writ hearing testimony when, even before the walk-through, Sessums gave the following sworn statement to police:
“I came to the school about 8:00 A.M., I rode to work with Gary in his Datsun Pickup, orange and white color. We park in front of the vocational building. We walked over to the main building, the doors were all locked and we waited for Clarence. We waited about 10 or 15 minutes. Sammie came up after we got there and was also waiting. Clarence came down the sidewalk and opened the door. There was another subject Eckie a short stockey guy, he also came up about the time as we did. All five (5) of us then went to the cafeteria and Clarence showed us where to set up the tables and chairs. It took about a hour and a half to set up the chairs. When we finished we walked out in the hall to the front of the building. We waited 10 or 15 minutes. There were a couple of people standing in the hall around the end where the gym is. When Clarence came up a girl was coming up behind. We kidded him about watching out, there is a pretty girl coming up behind him. She had blond shoulder length hair, about 5’ tall, she had blue jeans and a pullover sweater on. Clarence told us what we had to do and where to go. The four (4) of us then went to the annex to set up chairs. Clarence said he had something to so and stayed behind. We set at the annex about five (5) minutes, then Eckie went back and got the key from Clarence. When he got back we set up the tables and chairs. We finished if and it was around 10:30 or 11:00 A.M. Clarence came over and told us it looked good and we could go home. That is when Gary and I left, I do not know when Clarence and the other two left.” [Sic throughout.]
Nowhere, in this statement does Sessums say that he heard a girl scream “no” and “don’t”; nowhere in the statement is there any indication that another person other than the janitors may be involved; and nowhere in the statement is there any indication that Acreman is involved, yet these events, if true, would be highly significant. Regardless of how the walk-through was conducted, it would be impossible for it to have generated such blatant inconsistencies.
*899 Moreover, the majority fails to consider that none of the other janitors who gave written statements to the police prior to Styles’s involvement implicated Acreman, yet if Sessums’s story were true, the events that he now says happened would have taken place when all janitors — including applicant who did not participate in the walk-through — were together. It is surprising that the majority has failed in its rendition of the facts to include applicant’s testimony, but applicant, accompanied by his lawyer, testified during the grand jury proceedings as follows:
“Q. Why were you going to put [toilet paper] into the boy’s restroom, had you already checked the other one?
“A. No. I — there was a lady had already went up there — she took the paper up there. She came back and I was on my way back.... That’s when I met all of them. They were standing....
[Questions and Responses regarding the girl who took toilet paper into the restroom]
“Q. How did you come to talk to her?
“A. She was standing in the hallway when I asked the coach about [the toilet paper] and I asked her would she run up and check that one and then I left and went back up and this is when Ackerman, Sam, Henry Peace and John was all standing. I told them, “let’s go across the street” and I sent them over across the street and I said I’ll be right over.”
When asked if he had seen any other person in the main building around the cafeteria, applicant responded that he saw a young man and lady. Applicant also testified that he saw no other black males in the building that day, no school personnel and no other custodian. Asked if he had seen anyone else, applicant testified, “Nobody else.” Thus, even applicant did not implicate Acreman or anyone else in either his affidavit to police or in his testimony before the grand jury. Moreover, and what the majority has conveniently ignored, applicant, himself, exculpates the other janitors at the school on the day of the murder. The following colloquy occurred during the grand jury testimony:
“Q. You don’t believe any of the other custodians did it?
“A. Not after the experience I’ve had with them. They don’t seem to be the type of person that would do it.
“Q. Would they have had the opportunity to do something like that?
“A. No.
“Q. You didn’t know of an opportunity that they would have had to do it?
“A. No, sir.”
In addition to his grand jury testimony, applicant executed an affidavit on August 23, 1980, concerning the events that occurred on the day of the murder. The events as outlined by applicant fail to support even remotely Sessums’s account of the events. 3 Therefore, if we accept the majority’s conclusions that the walk-through generated false testimony we *900 must also accept that the other janitors, including applicant, gave false statements in their initial reports to the police and that applicant lied in the grand jury proceedings. It is far more likely that the passing of nine years is responsible for changes in Sessums’s account of the incidents at the school, not the investigative procedures utilized by Styles. Indeed, Ses-sums testified at a prior writ hearing on August 18, 1986. At that time the only significant change in his account of the events was that he saw Acreman talk to a girl as she entered the restroom. None of the events that he now claims to have happened are included in his testimony at this hearing. 4 Again, the majority errs in accepting the habeas court’s findings of fact, such findings regarding John Sessums are clearly erroneous and should be rejected.
The majority also claims that Acreman may have given false testimony due to the walk-through. The majority is willing to place its faith in a video taped interview of Acreman that was admitted into evidence at the writ hearing. In the taped interview, Acreman implicates another person, James Dexter Robinson, as an assailant. The majority opinion, however, fails to relate how that interview occurred, to wit: Richard Reyna, a private investigator for applicant, testified that before he began his interview he told Acreman that there “was a new eye-witness account that was putting him ... and James Robinson on the landing with the girl and that there had been trouble.” Further, Reyna told Acreman: “You don’t need to take the rap for anyone.... I fed him this ... I said the girl was being grabbed and she was yelling for help.... Then I told him that James Robinson had run upstairs from the water fountain. I said we know that.”
At the writ hearing, Acreman recants what he told Reyna on the video tape and testifies that he was “scared into telling what was said.” 5 Also at the writ hearing, the habeas court judge entered a finding that “[bjased upon Gary’s Acreman’s answers to questions and his countenance during the many hours that he was on the witness stand, this court finds that his testimony at the evidentiary hearing was incredible, untruthful and generally not worthy of belief.” 6 When the majority relies upon the video taped interview of Acreman *901 to suggest that false testimony was elicited at applicant’s trial, the majority relies upon unsubstantiated hearsay by a man called unworthy of belief by the habeas court judge and whose out-of-court statements are contrary to applicant’s grand jury testimony. That is, asked if he had seen anyone else at the school on the day of the murder, applicant testified, “Nobody else.” This is significant since Acreman places Robinson with the girl at the top of the stairs leading into the bathroom. It is un-refuted that this is at a time when applicant and the four other janitors are together. Again, if the Court accepts the habeas court’s findings this means that applicant perjured himself in the grand jury proceedings. The more appropriate response to the habeas court’s findings concerning Acreman’s out-of-court statements would be to reject them. They are clearly erroneous.
The habeas court finds and the majority blindly accepts that another janitor, Sam Martinez, had changed his rendition of the facts due to the walk-through. Again the majority ignores the record. Martinez gave the following statement to police prior to the walk-through:
“Went to work around 7:35 A.M. in cafeteria to put table and chairs in cafeteria. Finished in cafeteria sometime between hour of 9:00 A.M. and 9:30 A.M., not sure when. Next went to look for Clarence, found him coming up stairs with two rolls of paper. Then saw blonde-headed girl go to the girl’s restroom. She had on blue jeans, medium hair. Next we asked Clarence what to do, he told us to go across the street to the Vocational Building. We did, and then we waited about 30 minutes before he came out of the main building and called to the short man to come to get the key to the building. Then we set up chairs there, we finished this, then he came and told us that we were finished, which was about 11:00 A.M. or little after.”
Admittedly, Martinez’s second statement, made after the walk-through is more thorough and includes a time reference that is not in the first statement but, as Judge Campbell has indicated, there are no significant discrepancies between the two statements. Moreover, the majority fails to understand that those facts that have been added are easily verifiable. That is, additional facts are added to Martinez’s second statement, but these facts for the most part relate to where Martinez was during the time that the event occurred. For example, in the first statement, Martinez relates that, “Next went to look for Clarence, found him coming up stairs with two rolls of paper.” In the second statement, this becomes:
“Then Gary, John, and I came out of the cafeteria through the same door as we had entered, and walked on down the hallway of the Auditorium area to wait for Clarence to give us our next assignment. We waited in the hall just a short way from the stairs that lead up to the choir room. There were two restrooms at the top of the stairs.... Clarence came up the stairs from the gym and was carrying toilet tissue. He started on up the stairs toward the restroom....”
Comparing the two statements it is obvious that the only significant difference between the two is that in the second various locations are added. These locations are easily verified by looking at the map of the school contained in the statement of facts from the trial. For the most part, this is true with the additional facts that have been added to the second statement. 7 The majority’s reliance upon the habeas court’s findings regarding Martinez’s statements is wrong as these findings are, again, clearly erroneous.
The majority next attacks the testimony of Henry Martin Peace. Peace testified for the State at both of applicant’s trials. Peace’s testimony implicated applicant be *902 cause Peace consistently stated that applicant told him to check the loft area in the auditorium on three occasions during the search for Cheryl Ferguson. Ms. Ferguson’s body was eventually discovered by Peace in the loft area. The majority implies that Peace’s story was a result of Ranger Styles’s coercion of Peace. Again the majority has placed its reliance upon the habeas courts’ findings and again the majority’s reliance is misplaced.
In recounting the evidence that Styles had forced Peace against a wall, choked him with the chain around his neck and threatened to blow his brains out, the majority ignores the fact that Styles had focused on Peace as a suspect and was not attempting to influence Peace’s testimony regarding applicant’s activities on the day of the murder. Peace’s testimony bears this out:
“Q. [by Judge Pickett] Are you under any kind of fear from anyone or intimidation?
“A. Well, the only person I’m not too sure about is Wesley Styles because he did come out to my house which I’m going to have to testify under oath, he did come out to my house, roughing up or standard police procedure, but he did get me by the shirt. I don’t know whether you call it shoving me, pushing me or however. But he did put me up against the wall and took everything out of my pocket. He kept telling me I killed the girl.”
The record, however, is devoid of any attempt by applicant to link the mistreatment of Peace to any fabrication of Peace’s testimony regarding applicant. The majority seems to infer that applicant has standing to complain about Peace’s potential due process violation and thereby bootstrap himself into the same position as Peace. The majority does not cite one case supporting this proposition nor do they show in any manner whatsoever that Styles treatment of Peace influenced his trial testimony one way or the other.
In addition, the majority attaches significance to Peace’s treatment by the District Attorney’s office when Peace complained of Styles’s activities. Peace testified that members of the District Attorney’s office told him he was “hallucinating” the incidents regarding Styles. The majority again fails to link the treatment of Peace to any falsified or tainted evidence that affected applicant in any manner whatsoever. Applicant’s implied argument would have this Court accord applicant standing to benefit from the alleged wrongdoing that Peace suffered and the majority opinion gives tacit approval to this new found judicial concept of standing by inference when discussing Peace’s assertion that he would have preferred one of his relatives read his statement back to him. Peace was not able to read without assistance. Peace testified:
“Q. [By counsel for applicant] Did the police take a statement from you shortly after the murder?
“A. Yes, sir, they did.
“Q. And did they write up that statement?
“A. They wrote something on a piece of paper you have. I have no idea what it was.
“Q. Did you request any aid in the reading of the statement?
“A. Yes, sir. I asked for my sister or brother-in-law to be able to be there so he could read it to me. He said it wasn’t necessary.
“Q. Would you have, trusted your sister or brother-in-law to read it correctly to you?
“A. Yes, sir.
“Q. What were you told by the police when you requested your sister or brother-in-law to read the statement to you?
“A. Well, they just told me it wasn’t necessary.
“Q. Did you believe that you would be able to leave if you didn’t sign the statement?
*903 “A. Well, they told me I would have to sign it before I could leave.
“Q. And did you try to place a call to any either your sister or brother-in-law?
“A. I wanted to but they told me I had to stay there until they got through with the statement.
“Q. Now, Mr. Peace, did you meet with a Texas Ranger by the name of Wesley Styles?”
The majority’s argument seems to follow along the lines that since Peace was not granted his request for reading assistance that his statement was false. Yet note the last line of emphasis in the replicated testimony. Applicant’s counsel never asks if the statement was inaccurate. Applicant’s counsel hops to a new topic and never broaches the consequences of Peace’s denial to pick the reader of choice for his statement. Why? Because the record is abundantly clear that when it comes to the events at the school on the day of the murder, Peace’s testimony has not changed significantly as it relates to applicant’s involvement. Even applicant’s investigator, Richard Reyna who testified at the writ hearing, indicated that Peace has remained unwaivering in his account of the events at the school on the day of the murder. Peace testified to the following at the second trial:
“Q. [questions by Morris, counsel for applicant] Now, how many statements did you give in this case, Mr. Peace?
“A. I’ve only given one.
“Q. You’ve only given one statement. And when was that statement?
“A. That was on Saturday that girl got killed.
“Q. On the 23rd day of August?
“A. Yes, sir.
“Q. And I know that you can’t read or write, can you?
“A. No, sir. I can’t.
“Q. Did somebody make this statement up and read it to you?
“A. I went to the police station with a police officer. He sat there and wrote it up on a piece of paper and then he read it back to me, and then he went and had it typed up and then they read it back to me again. And I initialed it.”
Thereafter, Peace’s testimony is consistent with his statement to authorities.
Further, the majority misstates the record when they write that Peace was not allowed to leave the police station until he signed a written statement. Peace stated that he wanted to place a call to relatives but the police officers told him he had to stay until they got through with the statement. This is a far cry from the majority’s attempt to color this testimony as representative of improper police activity. The majority’s and the habeas court’s incomplete reading of the records in this case leads them to a result not even remotely supported by the evidence. Applicant has failed to show the harm he suffered as a result of the interplay between the authorities and Peace and, indeed, applicant is incapable of showing such harm since Peace has adhered to his trial testimony regarding the events at the school.
Last, the majority points out that Peace was told that the “nigger was elected” [referring to applicant as suspect] as perpetrator of the crime because of his size and apparent strength. Aside from the odious nature of the racial epithet the majority has failed to show why applicant would not be elected as the prime suspect in this crime. Negroid pubic hairs were found in the vaginal area of the victim and applicant was the only Black at the school on the day of the murder. Further, applicant was the only janitor whose time was unaccounted for during the critical period after the victim disappeared. The victim was seen near applicant soon before her death. The strangulation marks around the victim’s throat were consistent with having been made by applicant’s belt. Applicant was the only one of the janitors with keys to the auditorium and in his statement to po *904 lice he indicated that he was aware of the loft area. The majority, however, reasons that the presence of a racial slur in and of itself can exonerate applicant. There is no legal support for the majority’s proposition that the utterance of a racial epithet applied to a suspect constitutes grounds for a due process violation when the facts clearly point to that person as being the culprit.
The majority finds another due process violation because authorities failed to follow leads that may have been inconsistent with applicant’s guilt. Again the majority can cite no relevant authority but has determined that the facts developed at the writ hearing support this conclusion. Again the majority errs in following the habeas court’s findings.
The majority writes that Texas Ranger Styles maintained a blind focus that applicant had committed the murder and points out that a Caucasian pubic hair was found near the victim’s vagina. 8 The majority, taking Styles’s testimony out of context from the writ hearing, quotes him as saying, “Let’s say I didn’t do it and it wasn’t done and why it wasn’t done, I don’t know,” as being responsive to the question of why hair from the other janitors were not compared with the Caucasian pubic hair. The majority ignores that Styles at the writ hearing testified that, “I assure you, during my investigation, if it had been anyone connected with Clarence Lee Brand-ley or other than him, he would have been charged with it, sir.” Styles further testified that the janitors alibied each other; this is supported by the testimony given by the janitors at trial and by applicant himself, who in his grand jury testimony, indicated that the other janitors would not have had the opportunity to have committed the murders. Upon cross-examination, applicant’s attorney asked Styles:
“[I]f you look back on it now twenty-twenty vision and it’s not fair to you, I don’t suppose, to point out things that have come up since you concluded your investigation, but if you look back, don’t you think it would have been the prudent thing to do at least take samples of the other janitors’ pubic hairs ... ?”
Styles answered, “[I]f you say it’s a good idea. I’m going to agree with you.” Applicant’s attorney, then responded, “No, I want you to say it.” Styles response was, “Let’s say I didn’t do it and it wasn’t done and why it wasn’t done, I don’t know.” When the majority repeats this answer in the opinion, it ignores first, the answer is taken out of context and is only indicative of what Styles would do nine years after the initial investigation when one of the janitors has altered his story of events and second, it ignores testimony by Styles that he did not investigate the other janitors because they were able to alibi each other. Certainly, that others were not investigated because they indicated that they had been in each other’s company during the murder was a reasonable action on the investigator’s part. The alternative would be that all the janitors, including applicant, were covering up for the killer or killers, as such, Styles properly centered his investigation upon applicant, the only person whose presence was unaccounted for during the time that the girl would have been killed.
Moreover, the majority asserts that the State should have investigated the other janitors because the blood on the victim’s blouse was type A and it could not have come from the victim because she had not been cut in the upper areas of her body. This is wrong. At trial, Pat Lux, the chemist who conducted the examination of the items sent to her by the Conroe Police *905 Department, testified that she did not examine the blood on the blouse. The following colloquy took place:
“Q. So you made no effort at all to determine from testing that blood stain what type [of] blood that might have been ...?
“A. Okay. I couldn’t have gotten an enzyme from that stain. That stain was too weak....
“Q. But you could have determined whether it might have been A or B or 0 type blood, possibly, right?
“A. Yes, sir.
jfc ⅝ ⅝ ⅝ ⅝ ⅝
“Q. [Y]ou attempt to determine things that might be important as evidence in a court of law, don’t you?
“A. Yes, sir. But these items were all packaged together in one package, the blood stains from the socks and from the panties. It’s hard to say if that blood stain came from these socks that were packaged in there....”
In short, the blood on the blouse could have come from the other bloody items found in the plastic bag. Indeed, all physical evidence was turned over to an expert chosen by applicant to conduct his own analysis, and even applicant’s expert failed to examine the blood spot. What the majority fails to relate in its facts, moreover, is that the blood on the blouse was examined during the trial. Moreover, it is significant that the majority opinion fails to include in its rendition of the facts that Peace’s blood was taken and inspected for comparison. That blood from the other janitors (who along with applicant in his grand jury testimony, had alibied each other during the critical time) was not taken for examination was again a reasonable action on the part of investigators. There is absolutely no due process requirement that investigators exclude beyond any reasonable doubt other possible suspects. Here the other suspects were eliminated by the State because they were in each other’s company — nothing more is required on the State’s part to conform to due process requirements.
The majority also faults the State for its failure to maintain vaginal swabs for further analysis. It should be emphasized that there is absolutely no showing that the swabs were discarded in bad faith by state agents; no such finding was made during the writ hearing and no such finding is even remotely supported by the record. Moreover, the record clearly indicates that at the time that the swabs were analyzed, state agents followed routine procedure in maintenance and examination of the swabs. Dr. Joseph Jachimczyck, the Harris County Medical Examiner, testified at applicant’s second trial as follows:
“Q. And in the ease of a murder, or homicide, committed in the course of rape or attempted rape, what is the normal procedure for handling vaginal smears, swabs, washings, stains, that sort of things?
“A. Well, we obtain the specimen and I turn them over to my chemist-toxicologist and I request the particular examinations that I want performed, and then he performs them for me and reports his results to me. Once we’ve completed our examination, we’ve either consumed the specimen, depending on the particular determination or we discard it after we’ve gotten the information that we needed.
“Q. Now in the case of a requested autopsy from another county, do you normally just perform the autopsy, and then turn over to some officer or authority from that other county, those vaginal swabs, washings, etc.?
“A. No, the usual procedure is I handle it like I do anyone of my own eases, except if specifically requested by another agency. Then I will provide them with whatever samples they would like to have. If for example, they want a sample of blood, I’ll give them a sample of *906 blood. If they want to have their own independent smears, I’ll make those available. I’ll give them a set of smears, but we do our own in our lab. We don’t send them off anywhere.
“Q. Well, do people pick up those samples frequently and send them off to another lab, such as the Department of Public Safety lab?
“A. No, sir. Not at all frequently. No.
“Q. But they do sometimes?
“A. Yes, on occasion it is done.
“Q. Now, ■ are those vaginal swabs, washings, etc. — do they have any purpose or use in identifying an attacker? — helping to identify the attacker?
“A. They may. There’s a limited use for them. Not so much identifying the attacker, but rather excluding a suspect.
“Q. Because — isn’t it a fact that the running of those liquids — or the examination of those liquids could never in any case than you can imagine identify any one single person as the person that did it?
“A. Not to my knowledge.
“Q. But it can identify a segment of the population that could have done it and exclude another segment of the population, that could not have done it.
“A. That is correct.
“Q. For instance, I believe you determined in your testing that Cheryl Fergeson had A-type blood?
“A. Yes, sir.
“Q. And you didn’t do any further testing to try to determine the blood type of the donor of any of the liquids or semen that you found in the area of the little girl’s body?
“A. No, sir.
“Q. And is it my understanding that you keep some of these for up to thirty days and then throw them out, because you don’t have room to store those things for more than thirty days?
“A. Yes, sir.
“Q. And in this case you made no — you didn’t try the blood type of those semen samples that you found?
“A. No, sir.
“Q. Would that have been possibly useful in excluding certain individuals?
“A. If they were secretors, probably yes. If they are not secretors, probably no.
•t * * ⅜ . *
“Q. But is it your testimony that none of those tests were run with regard to the vaginal swabs or stain washings or vaginal washings in this case?
“A. I did not do that. That is correct.
“Q. Doctor, did you store any of those solutions, containing semen for any period of time, to your knowledge?
“A. No, sir. I have been informed by my staff that a request was made sometime during the middle or latter part of the week of the autopsy, the autopsy being Sunday, and at that time, there were no swabs available. There was blood available, which was turned over to the Department of Public Safety lab.
“Q. Doctor, you’ll probably recall a conversation with me, when I called with regard to the possibility that you might have such samples available. Do you remember that?
“A. I remember that, now that you remind me. We did not have it at that time.
“Q. Right. That was sometime up in the first or second week of October after we got your autopsy report.
“A. Yes, sir.
“Q. I believe you stated that you wouldn’t have them in any event, because it had been longer than thirty days?
“A. That’s right. Thirty days is generally a maximum that we would have normally kept them.
*907 “Q. Well, Doctor, did you have enough from the washings of stain in the groin area, and any washings or swabs from the vaginal area to have gone further and tried to blood type those liquids and run ABO or PGM, esterase, or any of those other tests?
“A. We did not. No, sir.
“Q. You didn’t have enough?
“A. No.
“Q. So, you didn’t even have enough to blood type it?
“A. That’s right.
“Q. What did you use the samples that you had for? What did you do with them?
“A. Ran the acid phosphatase reaction.
“Q. Was that—
“A. And then they were discarded.
“Q. Well, you mean the samples were discarded, but did you have enough to proceed further and attempt to blood type the semen?
“A. No, not at the time we had the smears. These were only smears. They were not actually liquid. They were just a smear. The smears and the swabs. The wet swabs and the washings that we had we utilized that. That was consumed during the process of checking for the acid phosphatase.
“Q. Do you use a saline solution to wash the stain?
“A. Right.
“Q. And there was no way that you could have gone any further and run any tests?
“A. Of, if we were set up to do it, we could have, but we didn’t feel the need for it at the time.
“Q. Well, if you were set up — I’m sorry, I don’t believe I understand.
“A. If we were set up for it, I’ve since learned that the Department of Public Safety is set up to do this kind of sub-testing that you’re describing.
“Q. You’re not set up in your lab that you can run those particular tests?
“A. No, sir.
“Q. Well, so would it be correct to say you might have had enough, but you’re just not set up to run all them?
“A. Both are correct. I did not have enough fluid, and I was not set up to run them either.
“Q. Well, were—
“A. —But even if I had the specimens, we couldn’t run them. There wasn't enough fluid there.
“Q. Were any requests made for those fluids from the lab—
“A. As I say—
“Q. —at the time of the autopsy?
“A. —No, not at the time of the autopsy. I turned over whatever was requested at the time of the autopsy, and I’ve indicated here what those items were.
“Q. Was Captain Monty Koerner present during the autopsy?
“A. Yes, sir.
“Q. Is he chief of detectives for the Conroe Police Department?
“A. I don’t know his specific title, but he is with the Conroe Police Department.
“Q. Did he request those items from you that you gave him?
“A. Yes, sir.
“Q. He requested the items that you gave him, such as the particles of dirt and hair and those other things?
“A. Yes, sir.
“Q. Did you have any conversation with him with regard to whether or not you were going to try to blood type the semen samples or run those sub-group tests?
“A. I don’t recall, but I told him we were going to do our usual procedure, namely the acid phosphatase and the microscopic slide preparations.
*908 “Q. Well, quantitatively, how much of the seminal solution do you need in order to run the acid phosphatase test?
“A. About a CC.
“Q. Okay. About a CC, but that is a very dilute solution, isn’t it?
“A. Right.
“Q. And in making washings on the groin area, how much liquid or solution did you end up with following the washing?
“A. I don’t remember exactly how much, but not too much, because we didn’t want to dilute that stain any further than what was necessary to do the test.
“Q. Now, I believe that you said that you took a swab from the vaginal area?
“A. Yes, sir.
“Q. Is that a wet cotton swab?
“A. Well, it was dry when we started, and it became moist, when we got the specimen.
“Q. Okay. And then you made a smear on a slide?
“A. We made two — two smears each from the mouth, vagina, and rectum on the microscopic slides and stained those to demonstrate the presence or absence of spermatozoa.
“Q. Okay. And upon taking vaginal swabs and making the microscopic slides, could you have taken the semen or fluid that was left in the cotton swab and made a solution of it and run some tests?
“A. I suppose that could have been done.
“Q. But that was not done in this case?
“A. No, sir.
“Q. Well, is it possible there would have been enough upon taking the swab and washing the swab out and making the solution that you could have blood typed it?
“A. It’s always possible. It depends on the concentration of the fluid itself. And it depends on the amount of enzymes and the heaviness of the smear, and the — whether the person is a secretor or not. There are a number of variables that — but, as far as is it possible, yes, I would say it would be possible.
“Q. So you don’t know whether there was or there wasn’t enough on the swab to run those blood tests?
“A. The swah looked awful dry to me. That’s all I can say.”
Dr. Jachimczyk’s testimony on direct examination at the writ hearing is as follows:
“Q. All right. In the autopsy of Cheryl Fergeson, did you obtain what is commonly referred to as a cotton swab of the vagina area?
“A. Yes, sir.
“Q. And the purpose of that is what?
“A. Well, the purpose of obtaining the cotton swabs is to check for the presence or absence of any spermatozoa or if the presence or absence of any seminal fluid in the form of the enzyme, the acid phosphatase which was a component of seminal fluid.
“Q. In this particular case, where it was reported to you I suppose a suspicion of rape and murder, were you looking for evidence of spermatozoa or semen?
“A. Well, in view of the injury that I saw on the body, of course, I was suspicious of rape being a component in this particular death; therefore, I did my customary examination.
“Q. And doctor, when you find spermatozoa or evidence of spermatozoa or semen in the vagina, is it collected on a cotton swab?
“A. Yes, sir.
“Q. Did you do that in this case?
“A. Yes.
“Q. Did you collect spermatozoa and semen on the cotton swab?
*909 “A. Well, actually I collected the—
“Q. Fluid?
“A. Not really. There wasn’t any fluid as such. We just took a smear, literally, of those portions of the body, that is, the vagina, the rectum and the mouth and we also took a washing of a stain that was present in the left groin.
“Q. All right. Now, do you preserve or, take it back, do you know whether or not you personally gave the cotton swabs to Detective Koer-ner?
“A. I don’t remember precisely whether I did or I did not.
“Q. And is there any written memo, have you searched your file to see if there’s any written memo or such that would say what actually happened to the cotton swabs?
“A. No, sir.
“Q. Now, about a week after Monty Koerner was in your office for the autopsy, were you contacted by a Mr. Wesley Styles?
“A. I don’t remember that I was.
“Q. Do you have any present recollection of whether or not the cotton swabs were given to either Monty Koerner or Wesley Styles?
“A. I do not recall at this time, no, sir.
“Q. Do you have any recollection or written memorandum that would say that you destroyed the cotton swabs?
“A. No, sir.
“Q. Dr. Jachimczyk, is it possible in your understanding of the heart of forensic medicine, that you can determine the blood type of the donor of spermatozoa or semen if that person is a secreter?
“A. If he is a secreter and if there’s enough material there to examine, yes, that can be done.
“Q. Now, who calls the shots, Doctor? Do you decide what test you’re going to run or does the police department or the agency that retains you decide what tests are going to be run on any evidence that you have?
“A. Well, in so far as cause and manner of death is concerned, it is my decision. I do any and all necessary tests to determine the exact cause and manner of death. In so far as any evidence, where it concerns additional police investigation, I do not call the shots.
“Q. That would be done then by, in this particular case, either Monty Koer-ner or the Conroe Police Department or Wesley Styles of the Texas Rangers?
“A. Well, I can’t say for sure whether in this particular case, but in general, that’s the way it’s done.
“Q. Do you have now, Doctor, the cotton swabs?
“A. No, sir.
“Q. You have searched your file and are relatively certain that they do not exist, at least in your office?
“A. I’m positive they don’t exist.
Cross-Examination by Mr. Speers:
“Q. Dr. Jachimczyk, does your office or at least let me ask you with reference to your procedures back in August of 1980 when this autopsy was performed, did your office perform as a routine course or for that matter at any time blood grouping analysis of seminal fluid?
“A. No, sir.
“Q. Normally, in that situation if you’ve been able to recover some by cotton swab or whatever method though would be submitted to the D.P.S. Laboratory or to someone like that by the agency that was investigating the case?
“A. Well, we were not involved in that at that time. We did do a blood group but on the blood, not on the swabs themselves.”
We were not even attempting that, no.
*910 “Q. The whole purpose of your either the taking the swabs and taking the washings, all that was just to determine whether or not there was either spermatozoa that you could see under the microscope or if not, seminal fluid as revealed by the presence of acid phosphatase; is that correct?
“A. Yes, sir.
“Q. So whatever tests you did not perform in the first instance for the purpose of subsequent testing to come up with blood group of the donor, wouldn’t it?
“A. That is correct, yes, sir.
“Q. As I understand it, just to make it clear, as to the swabs that were taken by you or under your direction at the time of autopsy, the bottom line is you don’t have any idea what happened to those. Is that correct? Or do you have some idea what happened to them eventually?
“A. The ones that we did our examination on were discarded.
“Mr. DeGeurin: Your Honor, I’m going to have to object. First of all, make sure this is not from hearsay at this time, and ask that the answer be stricken until it’s demonstrated it’s not from hearsay.
“The Court: Rephrase your question, Mr. Speers.
“Q. (By Mr. Speers) Obviously you used — As I understand, there were two things done, there was some swabs taken, also some smears taken on microscope slides; is that correct?
“A. The microscope slides were prepared from the same swabs.
“Q. Okay.
“A. And then first the slides were prepared, literally smeared on a slide and then the residue is treated with a chemical and tested for the presence or absence of acid phosphatase reaction.
“Q. And after you, the swabs were used to perform that test, the acid phosphatase tests, you shucked them in the trash when you completed that test; is that right?
“A. Not immediately. We discard them — Now we keep them six months, but at that time, we kept them on the average of a month or less.
“Q. So in terms of would you have used up all the swabs that were taken performing the acid phosphatase test or other tests?
“A. Yes. Well, the swabs would still remain but the acid phosphatase would no longer be demonstrable because whatever was there will have been in a sense consumed during the process of the testing, the chemical reaction, in other words.
“Q. I guess the bottom line question, I don’t know what the answer to this is, but would the swabs that you took and at any point after you had performed the test, would they have been of any use to your knowledge to anybody in making further studies as to the blood group analysis of the donor of the sperm?
“A. No, sir. No, sir.”
⅝ ⅝ ⅜: ⅞: ⅜ ⅜
Redirect Examination by Mr. DeGeurin:
“Q. Doctor, I understand that when you make a — you take the cotton swab and rub it across a piece of glass on a slide to make a smear and from that smear you determine, you treat it and determine if there’s spermatozoa or sperm? Or semen?
“A. No. The slide has first got to be stained and whatever cells are on the slide take up this stain and then we can look for and do look for the presence or absence of stained spermatozoa.
“Q. But you actually see it through the microscope, correct and, identify it?
*911 “A. Oh, yes. You can’t see that with the naked eye, no, that’s for sure.
“Q. Now with the cotton swab you had used to smear the stain, that cotton swab is kept now six months and back then for a period of time; is that correct?
“A. Yes, sir.
“Q. And it’s on that cotton swab would be traces, would it not, of actual fluid of some sort donated by the person who raped Cheryl Ferge-son? Isn’t that correct?
“A. Run that by me again, sir. I didn’t understand your question.
“Q. The cotton swab that comes from the cavity of Cheryl Fergeson, the person you did the autopsy on?
“A. Right, yes.
“Q. You take that cotton swab, you rub it across the piece of glass for the test you’re performing to determine if there is spermatozoa or semen?
“A. Well, spermatozoa, you can’t tell semen on that at that point, only if the sperm are there or not.
“Q. Then after you have done that, you still have the cotton swab, do you not?
“A. Right.
“Q. And on that cotton swab is fluid donated by the attacker?
“A. Right.
“Q. Now, in the present art, are you aware of that from those cotton swabs, even without refrigeration left in a file cabinet drawer, then years later, a DNA molecule can be obtained and can identify like a fingerprint the person who actually did the rape?
“A. Well, I’m not sure of the accuracy that you point out.
“Q. Have you heard about the process?
“A. Not until I got the Court order that you requested.
“Q. And you are aware, aren’t you, Doctor, that from the fluid that is left or substance that is left on the cotton swab through washings or whatever is necessary, you can obtain something from which with the proper methods the blood type of the donor of that spermatozoa or semen, you can determine the blood type if that person was a secreter?
“A. Yes, sir, providing that it was not subjected to any other chemical reaction.
“Q. Now, the cotton swab, did you stick it in some kind of chemical reaction?
“A. Yes.
“Q. How many cotton swabs were there?
“A. I don’t understand — how do they work? There is a color reaction.
“Q. How many were there?
“A. Of, there are two.
“Q. Did you personally throw them both away?
“A. Now, wait just a moment. No. No. From where now are you talking? We had one from the mouth, one from the vagina and one from the rectum, so we had three.
“Q. All right. And all three of those cotton swabs are missing?
“A. All three of those, yes, they’re no longer available, that’s true.”
Thus, the swabs were discarded after the analysis was conducted upon them per the standards utilized at the lab at that time. The majority’s reliance upon testimony indicating that the present procedure, utilized by investigating authorities, is to maintain the swabs, is misplaced. What the current procedure is today — in a world where technological advances in forensic science are commonplace — is immaterial. In addition, nowhere in the record is any bad faith imputed to Dr. Jachimczyck as a result of the laboratory guidelines he followed at the time of the Ferguson autopsy. The majority is wrong when it judges the nine year old procedures under today’s standards.
*912 The most tenuous argument advanced by the majority is that regarding the State’s failure to investigate a lead by Cheryl Bradford. Supposedly, Bradford saw two men rushing through the gym around the time of the murder. She told this to her coach who in turn told the Conroe Police Department. 9 The majority faults the State for its failure to investigate further. The majority errs considerably. The Con-roe Police questioned every girl participating in the volleyball tournament along with the coaches and staff. No other person interviewed verified Bradford’s statement. An officer with the Conroe Police Department, who had interviewed each of the girls at the school, testified at trial that at that time “the gym was quite full” and that in attendance were men as well as boys. Thus, the majority would have the police investigate an unsubstantiated statement made by only one of several people interviewed that she saw two men in an area where police had seen several men. Certainly, this is an unreasonable requirement on the majority’s part.
The majority finds Bradford’s statement to be significant because, according to the majority, Bradford suffered “chills” when she saw a televised picture of James Robinson. The majority is taking Bradford’s statement out of context and the habeas court and the majority completely miss the mark on this point. Bradford, at the writ hearing, testified:
“Q. [by Mr. Speers] Now, when you were watching 60 Minutes, was there anything you saw on 60 Minutes that caused you to make phone call to the authorities?
“A. Well, I was sitting at home that afternoon, watching 60 Minutes and I was probably grading papers or I don’t know, doing something, and anyway, we really wasn’t paying attention to it and they said Clarence Brandley and they said Conroe High School and so I Started watching it. And all of a sudden they showed — they showed a guy on the television with kind of dark hair. I don’t know if it’s, if I recognized the guy, which I doubt I did because like I never saw the guy way back then face on, but I don’t know if it was me recognizing him or just the thought of everything again that made me — I just got chills all over. I couldn’t sleep that night so the next day, I had called one of the other coaches I worked with. I had told her everything. So the next day I called Conroe. I told them, you know, that I had — I was there when it happened and just made me call them again.
“Q. Then did you this statement to an investigator form the Attorneys General’s Office?
“A. Yes.
* * * * * *
“Q. [By State’s Attorney] Mrs. Bradford, just to make it clear, in fact, you can’t tell us that the person that you saw or one of the people that you apparently saw inside the gymnasium was the person whose picture you saw on 60 Minutes ?
“A. No, I can’t.”
Absolutely no basis exists for the inference that Bradford got the “chills” because she recognized Robinson from the televised photograph. The majority’s requirement that the police officers investigate Bradford’s statement further is completely unreasonable — the lone statement is not only unsubstantiated by other witnesses at the scene, it is of little probative value in inculpating Robinson and is of no value in exculpating applicant. As Judge Campbell aptly concludes, that other persons may be implicated in the murder in no way disproves *913 applicant’s guilt. 10
The majority finally faults Styles for his failure to investigate a statement made by Acreman to Peace that Acreman, after he came from the school, stated that applicant was “having fun with a good looking girl.” Notwithstanding that this statement implicates applicant, the majority suggests that it could possibly be a story created by Acreman to falsely implicate applicant and thus direct the investigation away from someone else. Thus the majority desires that Styles, who testified at the writ hearing that he did not believe the statement when told this by Peace, should have proven to himself that it was unworthy of belief. Again the majority ignores the record. At the writ hearing, Styles testified that he spent a great deal of time on the investigation of this case and that he attempted to eliminate other possibilities. Either the majority can believe or disbelieve this testimony, but requiring Styles to disprove Acreman’s statement was a deliberate falsehood created to cover up for someone else by actually finding that other person is an impossible requirement when there are no other possibilities.
Finally, as a matter of reply to the concurring opinion filed herein, I agree that due deference must be paid to the findings of fact and conclusions of law made by the habeas court. But such has never been an absolute rule. See, e.g., Ex parte Young, 479 S.W.2d 451 (Tex.Cr.App.1972), and Ex parte Guzman, 589 S.W.2d 461 (Tex.Cr.App.1979). However, and as emphasized in Judge Campbell’s dissent and reiterated herein, even if we take this habeas court’s findings as true and accurate, no basis for relief is demonstrated. Furthermore, a reading of all the records including the first trial, second trial, first habeas hearing, and the present hearing leads me to no other conclusion than the findings are clearly erroneous. To tie this Court’s hands and deny our Constitutional jurisdiction by requiring us to uphold erroneous findings of a habeas court is to return to the “good ole days” when trial courts could legitimately thwart the authority of this Court. See State ex rel. Wilson v. Briggs, 351 S.W.2d 892 (Tex.Cr.App.1961).
For all the reasons set forth above, I dissent.
CAMPBELL, J., joins this dissent.
. Neither of the trial court judges that sat during applicant’s trials participated in the hearing which resulted in the findings of fact upon which the majority rests its decision. A reading of all the records of applicant’s trials and hearings demonstrates the total failure of the habeas judge to review these records.
. Sessums's testimony at the first of applicant’s two trials and at the first writ hearing was consistent to that of his initial statements to police. Keeshan testified at the second writ hearing, however, that he did not use Sessums as a witness at the second trial because at applicant’s first trial (which resulted in a mistrial when the jurors were unable to agree on punishment) Sessums became "confused” on cross-examination and would "testify in every direction.” Apparently defense counsel concurred in the District Attorney’s assessment of Sessums as a witness. The trial record makes it abundantly clear that Sessums was presented to defense counsel to call on applicant’s behalf but that applicant declined to do so. It is ironic that the majority now accepts Sessums’s second writ testimony as credible but turns its back on all former testimony.
. Applicant's sworn statement to police is as follows:
"Beverly Dupre brought me to work a 7:40 A.M., Ackerman, Sam, John and Henry Peace were already at the school when I arrived. I opened the doors and let them into the cafeteria, and then I showed them what I wanted them to do. I then went into the gym to unlock the doors and take out the trash, then I left the alan wrench with the coach in charge of volleyball team so she could lock doors. Then I went to the Shamrock Station and bought me some cigarettes. Then I came back to the girls gym and asked the coach if the bathrooms have paper and then I left and went back to the front of the building. I sat down and waited for the guys to finish cleaning the cafeteria. When they finished with the cafeteria, I sent all of them to the vocational building across the street to set up 85 chairs for Monday and I went to put toilet paper in the restrooms. Then I went across the street and the guys finished putting up the chairs. I then told John, Ackerman, and Sam that they could go home and Henry and I went back to the main building to lock up cafeteria. We heard some girls calling for someone and they told us that one of the girls was missing and they were looking for her. I told Henry that we needed to check all doors and make sure they were locked. Henry and I started checking the doors and it was then we discovered that the auditorium door was *900 open. We went inside the auditorium and started looking around. Then we discovered that the back door of the auditorium was open. We went on to the stage and cut the lights on so we could see. I then told Henry to look up around the stage because sometimes the kids would hide in there. Henry and I were looking up on the balcony behind the stage because the kids sometimes get behind the boards and hide. Then Henry moved this sheet of plywood and called me and I went over there and saw the girl lying there. I then checked her pulse and found no pulse. I then went and got one of the Police Officers and showed him where the body was.”
.A video taped interview of John Sessums by applicant's attorney was admitted into evidence at the writ hearing. In it Sessums appears to be intoxicated and must be coached into describing events and persons. For example, before Ses-sums is able to identify Robinson he must be shown a photograph. Even after being shown a photograph, Sessums is unable to name Robinson and must refer to him as the man with no teeth.
One of applicant’s own witnesses testified at the writ hearing that Sessums is an alcoholic.
. When Reyna was asked about his investigative techniques in securing Acreman's and Sessums’s stories, he related, "My tactics were not any different than tactics applied by your officer of any other police agency. They are the same.” Thus, the majority would have this Court find that when a Texas Ranger conducts an investigation that utilizes certain techniques it produces false testimony, when, however, applicant’s investigator utilizes the same techniques it produces reliable information.
. This one finding by the habeas court is not clearly erroneous. Three witnesses who testified on behalf of applicant at the writ hearing, stated that Acreman had told them that he knew who had committed the murder. Each witness, however, testified that they did not believe Acre-man when he told them this. One of these witnesses testified that Acreman was a "nut, a kook,” and appeared to be drunk when he said this. Another described Acreman as "always acting big."
. Judge Campbell has included in his opinion the first and second statements taken from Martinez, Sessums and Acreman. As is the case in Martinez’s second statement, both Sessums’s and Acreman’s second statements merely include various locales that are easily verifiable.
. This is not altogether correct. The testimony at trial by expert witnesses was that the Caucasian hairs found near the victim’s vaginal area were "possible" pubic hairs, and, unlike the Neg-riod hairs, these Caucasian hairs had not been forcibly removed.
Further, the majority conveniently ignores that authorities had taken pubic hair samples from Peace to compare with the hair found on the victim. The majority also conveniently ignores that at trial applicant’s self-chosen expert testified that the Caucasian hair found on the victim did not compare favorably to those of Peace.
. There was no evidence introduced at the writ hearing that the police actually received this information and that it was relayed to those investigators concerned with applicant's case, The prosecutor testified at the writ hearing that he was unaware of Bradford’s statements.
. The majority fails to relate that, upon defense counsel’s request, the Attorney General’s Office conducted an independent investigation of the Brandley trial. Robert Bodish, an investigator for the A.G.'s Office with fourteen years' experience, testified at the writ hearing that he investigated Bradford’s statement. In so doing he concluded that where Bradford said that she had seen the men running through the gym, there is no access from the gym into the auditorium and that the two men would have been no where near where they would have had access to the auditorium. Thus the minute value that Bradford’s statement may have in inculpating others is further diminished.
The Attorney General’s complete report was excluded from evidence at the writ hearing upon applicant’s objection.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765478. Public record. Not legal advice.