Opposition Brief — William Owens, Petitioner v. Texas

No. 18-7038

IN THE

Supreme Court of the United States

WILLIAM OWENS,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

To the Texas Court of Criminal Appeals

RESPONDENT’S BRIEF IN OPPOSITION

Jerry D. Rochelle

Criminal District Attorney

Bowie County, Texas

601 Main Street

Texarkana, Texas 75501

By:

Randle Smolarz

Assistant District Attorney

Texas Bar No. 24081154

Counsel of Record

Counsel for Respondent

I.

QUESTIONS PRESENTED

The state court denied relief because the undisclosed police report

was not material under a Brady analysis. Brady v. Maryland, 373 U.S.

83 (1963).

The Question Presented is:

1.

Whether the undisclosed police report—from a different

sexual assault investigation—that included statements by a

detective and trial witness that the victim was confused and

getting sexual assault charges “mixed up” with another

individual was material under a Brady analysis; and

ii

II.

TABLE OF CONTENTS

Page

I.

QUESTIONS PRESENTED ................................................................................ II

II.

TABLE OF CONTENTS ..................................................................................... III

III.

INDEX OF AUTHORITIES ............................................................................ IV

IV. BRIEF IN OPPOSITION ...................................................................................... 1

V.

STATEMENT OF THE CASE .............................................................................. 2

A.

B.

STATEMENT OF FACTS ......................................................................................... 2

PROCEDURAL HISTORY ........................................................................................ 3

VI. ARGUMENT .......................................................................................................... 4

A. THIS IS A POOR VEHICLE TO CONSIDER THE MATERIALITY ISSUE. ...................... 4

B. THE POLICE REPORT IS NOT MATERIAL BECAUSE IT IS NOT RELEVANT. ............ 5

C. PETITIONER WAS SUFFICIENTLY AWARE OF THE CONTENTS OF THE POLICE

REPORT PRIOR TO TRIAL.............................................................................................. 9

D. THE POLICE REPORT IS NOT MATERIAL BECAUSE IT IS TOO LITTLE, TOO WEAK,

OR TOO DISTANT FROM THE MAIN EVIDENTIARY POINTS TO MEET BRADY’S

STANDARDS. .............................................................................................................. 15

VII.

CONCLUSION ................................................................................................ 19

iii

III.

INDEX OF AUTHORITIES

Cases

Flores v. State, 940 S.W.2d 189 (Tex.App.—

San Antonio 1996) ................................................................................... 12

Gowan v. State, 927 S.W.2d 246 (Tex. App.—

Fort Worth 1996) ..................................................................................... 17

Graves v. State, 382 S.W.2d 486, 490 (Tex.

Crim. App. 1964) ....................................................................................... 9

Harm v. State, 183 S.W.3d 403, 407 (Tex.

Crim. App. 2006) ....................................................................................... 9

Jackson v. State, 552 S.W.2d 798, 804 (Tex.

Crim. App. 1976) ....................................................................................... 9

Kesterson v. State, 997 S.W.2d 290 (Tex.

App.—Dallas 1999) .................................................................................... 5

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim.

App. 1997) ................................................................................................ 15

Moore v. State, 143 S.W.3d 305, 317 (Tex.

App.—Waco 2004) ..................................................................................... 9

Mosley v. State, 960 S.W.2d 200 (Tex. App.—

Corpus Christi 1997) ................................................................................. 9

State v. Blanco, 953 S.W.2d 799 (Tex. App.—

Corpus Christi 1997) ............................................................................... 13

Thomas v. State, 841 S.W.2d 399 (Tex. Crim.

App. 1992) ................................................................................................ 15

Turner v. United States, 137 S. Ct. 1885

(2017) ....................................................................................................... 16

United States v. Bagley, 473 U.S. 667 (1985)......................................... 15

iv

Wetzel

v.

Lambert,

132 S.Ct. 1195

(2012)(Breyer, J., dissenting) .................................................................. 19

v

IV.

BRIEF IN OPPOSITION

Respondent, the State of Texas (the “State”) respectfully files this

brief in opposition to William Owens’s petition for writ of certiorari.

INTRODUCTION

Petitioner argues that the State suppressed an exculpatory police

report material to his defense. Specifically, Petitioner argues that (1) the

State failed to disclose a police report that was generated in another case

that proves another individual committed the sexual assault of the victim

and (2) there is a reasonable probability that the jury would not have

convicted Petitioner.

The Texas Court of Criminal Appeals dismissed Owen’s subsequent

state habeas application because Petitioner failed to establish a Brady

claim.

Even if the lower court’s opinion addressed a substantial question

of federal law, this case is a poor vehicle to address the question that

Owens seeks review. Petitioner does not dispute that the legal standard

for materiality was used improperly. The lower court applied the

established law in the correct manner. There are no conflicts between the

circuits or the States regarding an important question of federal law. This

case would not clarify the law. The Texas Court of Criminal Appeals

correctly applied the law based on well-established laws and principles.

Because Petitioner cannot demonstrate the admissibility of the police

report would have led him to admissible evidence. Therefore, the petition

for certiorari should be denied.

Arg 1

V.

A.

STATEMENT OF THE CASE

Statement of Facts

The victim1 is the daughter of Petitioner. At four years old, the

victim told her mother and grandmother that “daddy” did something to

her. During her CAC examination, the victim told the forensic

interviewer that her “daddy” touched her “tutu” with his fingers. The

victim identified her “tutu” as her vagina. The victim also told the

interviewer that “daddy” touched her at his house in his bedroom under

her panties, and it hurt. The victim displayed characteristics of a child

who has been sexually abused during the interview. During the SANE

exam, the victim told the examiner that her daddy touched inside her

tutu with his fingers, and it hurt.

The victim also made statements against a third-party (Billy

Speights) at a different CAC interview. The victim stated “Uncle Billy”

hurt her and sexually assaulted her. when asked what did “Uncle Billy”

did to her, the victim pointed to her vagina and said he toucher her with

his finger. The victim made several inconsistent statements. The police

1 The child victim in the present case was given the pseudonym Julie Mae. In

the police report in question, which was generated in another case, the same child

victim is referred to as Jane Smith. They are one in the same individual.

Arg 2

report states the specifics of the sexual assault were unclear—such as the

when and where. As a result, the State did not pursue any charges

against Speights for sexual abuse against the victim.

B.

Procedural History

On October 27, 2011, a jury convicted Petitioner of Aggravated

Sexual Assault of a Child and assessed a punishment of Life in prison.

On September 20, 2012, the Texas Court of Criminal Appeals affirmed

the Petitioner’s conviction and sentence after direct appeal. On August

29, 2016, Petitioner filed an application for a writ of habeas corpus.

Petitioner asserted that (1) the State suppressed and failed to disclose

Brady evidence favorable to Petitioner (among other things). On

December 15, 2016 the Court of Criminal Appeals remanded Petitioner’s

claims to the trial court for resolution. On May 10, 2017, the trial court

filed its Findings of Fact and Conclusions of Law. On September 14, 2017,

the Court of Criminal Appeals issued an Order requiring both parties to

submit a brief regarding the materiality issue (as well as the ineffective

assistance of counsel issue). On November 7, 2018, the Court of Criminal

Appeals denied any habeas relief holding that Petitioner failed to prove

the Brady materiality prong. The Court of Criminal Appeals did hold that

Arg 3

the police report was newly discovered evidence. On March 27, 2019, the

Court of Criminal Appeals denied Petitioner’s Motion for Rehearing.

VI.

A.

Argument

This Is a Poor Vehicle to Consider the Materiality Issue.

Even if the lower court’s opinion addressed a substantial question

of federal law, this case is a poor vehicle to address the question that

Owens seeks review. Petitioner does not dispute that the legal standard

for materiality was used improperly. There are no conflicts between the

circuits or the States regarding an important question of federal law. This

case would not clarify the law. The Texas Court of Criminal Appeals

correctly applied the law. Also, the report is not Brady because Petitioner

cannot demonstrate the admissibility of the police report would have led

him to admissible evidence. Therefore, the petition for certiorari should

be denied.

Arg 4

B.

The Police Report is Not Material Because It is Not

Relevant.2

The State has no duty to disclose evidence that is irrelevant or not

admissible at trial.3 The trial court considered the relevance of

Petitioner’s defensive theory that only one person committed the assault

against the victim. The trial court narrowed the discussion to whether

the evidence meets the standard in Kesterson v. State.4 If the victim

alleged only one assault occurred—where victim makes an outcry one

time about Petitioner and the other time an outcry that Speights

committed the assault, then the evidence would be admissible. If there

were two separate assaults, the evidence is not admissible.5

Petitioner reasoned that the two allegations are about the same

exact assault solely because Speights allegedly committed the assault in

a comparable manner.6 Later, Petitioner’s trial counsel admits that he

does not know whether the allegation is about the same event or separate

events. In Kesterson, the defensive theory was that the child was

2 Petitioner limits the argument to materiality (to directly address the lower

court’s decision). As such, the State limits the argument to materiality. The State

argues that Petitioner fails on each Brady prong.

3 Graves v. State, 382 S.W.2d 486 (Tex. Crim. App. 1964); Lagrone v. State,

942 S.W.2d 602, 615 (Tex. Crim. App. 1997)(“[T]he prosecution has no duty to turn

over evidence that would be inadmissible (sic) at trial.”).

4 Kesterson v. State, 997 S.W.2d 290, 293 (Tex. App.—Dallas 1999).

5 2 RR 162.

6 2 RR 158 (“(Speights) stuck his finger in her and that he moved it around.”).

Arg 5

confused about which adult male actually committed the only assault,

and the two males lived in the same residence. The court of appeals

deemed the evidence relevant and exculpatory because the two adult

males actually lived at the same residence.

Here, the police report does not in itself establish that the child

victim was not assaulted by Petitioner. It also does not establish that the

child victim was not assaulted by Speights. Nothing in the report

suggests that Speights committed the sexual assault of the victim in this

case on the same date and time—instead of Petitioner. At most, the

report indicates that the victim made an outcry against Speights, which

does not in itself cast doubt that she was also assaulted by Petitioner.

Also, there is no evidence that links the allegations to be relevant to this

set of facts on guilt-innocence. Petitioner and Speights each have

distinguishing characteristics (i.e. hair color). The victim could

adequately identify each perpetrator during each separate investigation.

The police report states that the victim refers to Speights as “Uncle Billy”

and then the victim uses dad or “Bubba” in Petitioner’s CAC interview to

refer to Petitioner. The similar motion to assault the victim is not a

distinguishing property. The fact that the allegation is made in the “same

Arg 6

time period” have no relevance without more to link them together.

Otherwise, it is just two separate assaults that occurred within the “same

time period”. There is nothing to suggest Speight had an opportunity to

sexually assault the victim for the exact same assault allegation of the

victim. The victim describes open windows and a fence—both of which

indicate the Petitioner’s house. There is nothing to suggest that Speights

committed the sexual assault at Petitioner’s house. Petitioner lived with

one other person—and this was not Speights.7 There is nothing that

connects Petitioner to either location—Nora Mitchell or Elizabeth

Mitchell or the Texarkana Mobile Home Park. The sexual assault by

Petitioner occurred where Petitioner lived in Glenn Acres Mobile Home

Park.8 This is a different trailer park than where her mother lived.9 No

one else was living at the victim’s mother house.10

Also, a prosecutor must use its own judgment to determine whether

any particular evidence is required to be turned over. “[T]here are other

circumstances in which a prosecutor must, or certainly should know that

even testimony which he honestly disbelieves is of a type or from a source

7 3 RR 178.

8 3 RR 43; 3 RR 72.

9 3 RR 179.

10 3 RR 180.

Arg 7

which probably would make it very persuasive to a fair-minded jury.”11

Even if the prosecutor knew the document existed, the police report is

just not “very persuasive” since everything points directly to Petitioner.

The only evidence that is similar in both cases is the perpetrator used a

similar motion to commit a sexual assault. This is not unique and does

not make the evidence “very persuasive”. There must be more of a

connection to support the defensive theory at trial. This evidence does not

undeniably support the proffered defensive theory, and the police report

is not inconsistent with the prosecution’s theory of the case.12

The strength of the State’s case relied on the victim’s testimony as

well as the corroborating witnesses. Corroborating testimony by law

enforcement and the outcry witness of the victim can increase the overall

strength of the State’s case when determining materiality.13 The victim

provided consistent testimony and was able to resolutely explain the false

story. Therefore, the report does not tend to excuse or clear Petitioner

11 Means v. State, 429 S.W.2d 490, 495 (Tex. Crim. App. 1968).

12 Id. (“The findings of the unidentified hairs on the body of the deceased may

have been consistent with the theory advanced by the defense that someone could

have possibly entered the hotel room after [petitioner] left, but such findings do not

undeniably support the defensive theory in view of the undisputed fact of the

deceased’s avocation and the fact that the deceased did not meet the [petitioner] until

6:30 p.m. on the day in question, approximately 2 hours prior to the estimated time

of her death. Further, such findings were not inconsistent with prosecution’s theory

of the case.”).

13 Harm v. State, 183 S.W.3d 403, 409 (Tex. Crim. App. 2006).

Arg 8

from the alleged guilt. The trial court did not abuse its discretion when

it ordered the evidence would not be admissible.

C.

Petitioner was Sufficiently Aware of the Contents of the Police

Report Prior to Trial.

“[T]he state is not required to seek out exculpatory evidence

independently on [petitioner]’s behalf[] or furnish [petitioner] with

exculpatory or mitigating evidence that is fully accessible to [petitioner]

from other sources.”14 The record makes it abundantly clear that

Petitioner was aware of all the relevant information prior to trial. In

Mosley v. State15, the court discussed an analogous situation. The

defendant, the father of the victim, requested a continuance during trial

Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006)(footnotes

omitted); Jackson v. State, 552 S.W.2d 798, 804 (Tex.Crim.App.1976).

15 Mosley v. State, 960 S.W.2d 200, 206 (Tex. App.—Corpus Christi 1997); See

also Means v. State, 429 S.W.2d 490, 495 (Tex. Crim. App. 1968)(the State did not

disclose the inconclusive forensic report on the unidentified hairs found on the body.

This again involves a document. The defendant was aware of the information prior to

trial. As a result, the court held that there was not Brady claim and the defendant

was not entitled to any relief—even if such evidence would have been material);

Moore v. State, 143 S.W.3d 305, 317 (Tex. App.—Waco 2004)(the defendant conducted

its own investigation and found out that a witness had previously been indicted. The

court held that no Brady violation occurred because the defendant was aware of the

information.); Graves v. State, 382 S.W.2d 486, 490 (Tex. Crim. App. 1964)(the court

reasoned that a defendant had knowledge of information based on his access in jail

prior to trial. “It appears that the alleged newly discovered evidence was available to

defendant as both Kennard and [defendant] had been in the same jail for some time

before and during the time of the trial, and such evidence could have been ascertained

before the conclusion of the main trial by the exercise of reasonable diligence.”);

Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976)(the defendant issued a

subpoena duces tecum of Mrs. Ramsey, but the defendant’s follow-up to obtain the

sought-after information and documents. “We cannot conclude that the prosecutor

violated his duty to disclose favorable evidence to the [defendant] when the evidence

was already available to him.”).

14

Arg 9

to locate a police report known to him prior to trial. The police report

allegedly contained information about an assault by a step-sister against

another child. The defendant was specific in his request. “Neither the

prosecutor nor [defendant]’s counsel [was] able to locate the alleged

report; the prosecutor reported that no such police report number was

listed in the computer system.” The court affirmed the trial court’s ruling

that defendant was aware of the information prior to trial, and no Brady

violation occurred. This case shows that it is irrelevant that a prosecutor

stated a document does not exist, but the document does actually exist.

In United States v. Milstead16, the defendant complained that a

sworn statement of a third party taken by the bank that described the

third parties “similar business and personal liason (sic) with [an intimate

friend of defendant] carried on during the same period as [the

defendant].” The court determined that evidence was not exculpatory

because it was essentially irrelevant—“how the fact that [the intimate

friend of defendant] had engaged in conduct with other customers similar

to his with [defendant] tends to exculpate [defendant] is unclear to us.”

The court also concluded that the sworn statement was available to the

16 United States v. Milstead, 671 F.2d 950, 953 (5th Cir. 1982).

Arg 10

both parties, and the information was communicated to the defendant

prior to trial.

Here, these cases show that the physical report has negligible effect

on the analysis—the important aspect is the information the document

contains. The only difference is a physical document surfaced, which the

contents were known prior to trial. Petitioner was aware of all the

relevant information contained in the police report:

• The victim made allegations against Petitioner and

Speights;17

• The State did not purse the allegation against Speights;18

• The recantation, which was also admitted via testimony by

the State, did not concern Speights;

• The victim described the perpetrator as her dad who had

white hair, which was known because Petitioner was provided

access to the victim’s CAC interview;19

• Petitioner made the trial court aware that Speights had

blonde hair with white tips at the time of the outcry;20

• The victim alleged that both Petitioner and Speights used a

similar motion in the assault against her;21 and

• Petitioner met with Speights during pre-trial.22

17 Trial Counsel Affidavit, page 2.

18 Trial Counsel Affidavit, page 2 (“… that Speights was not charged with any

offense against the girl because the investigators in the Speights case thought the

victim was confused as to which defendant committed which act”).

19 2 RR 156.

20 2 RR 156.

21 2 RR 158.

22 2 RR 155; Trial Counsel Affidavit, page 2.

Arg 11

The record makes it abundantly clear that trial counsel was aware of all

the relevant information because (1) the record states trial counsel’s

knowledge prior to trial, (2) Petitioner was aware of the information prior

to trial because of Speights told Petitioner that the victim made a similar

allegation against Speights23, and (3) Petitioner communicated with Nora

Mitchell who confirmed the victim recanted the allegation against

Petitioner.

However, in Flores v. State24, the court held that the State

committed a Brady violation for not disclosing an oral statement that

contradicted the previously written statement. The defendant had access

to the State’s file and the written statement. The oral statement was

favorable to the defendant. The court held that the defendant could not

have learned of the oral statements with reasonable investigation even if

the defendant knew of the written statement and the identity of the

witness. The defendant was not informed of the oral statement. The court

stated that the defendant “would not reasonably be considered by defense

counsel as someone to approach for exculpatory evidence”. This is

different than the facts at issue. Here, the record is unclear whether

23 Trial Counsel Affidavit, page 2.

24 Flores v. State, 940 S.W.2d 189, 190 (Tex. App.—San Antonio 1996).

Arg 12

Petitioner was aware of the following information from the police report:

the victim described several things in the CAC interview such as a gate,

the perpetrator came in through the window, the grandmother came in

during the assault, Speights admitted being a gay man, the police report

states “Ms. Stout got the anatomical dolls out and Jane picked which one

looked like Uncle Billy. She described him as being white, a grown up, a

boy and his hair is cut off”25, and Speights was also the live-in boyfriend

of the biological mother at the time of the outcry.26 Speights informed

Petitioner of the allegation—a statement against penal interest.27 The

defendant was aware of the allegation and all the relevant parties. Nora

Mitchell was the person that stated whether the victim mixed up the

allegations and who provided information to the officer that helped close

the case of the victim against Speights. Nora Mitchell did not remember

herself coming into the victim’s room and telling Speights to stop messing

with the victim. Nora Mitchell also always kept the window in the

victim’s room locked. The information was fully accessible from other

sources, and Petitioner obtained exculpatory (i.e. the recantation) and

25 Police report, page 4.

26 2 RR 156.

27 See State v. Blanco, 953 S.W.2d 799 (Tex. App.—Corpus Christi 1997).

Arg 13

pertinent information. The pertinent information needed investigating,

but it never garnered any exculpatory information.

Also, the State had an “open file” policy during the time period in

question.28 The burden is on Petitioner to establish materiality. Trial

counsel for the State explained that Petitioner would have access to the

Speights information if he would have asked and would have pursuant to

the open file policy. The trial court’s Findings of Fact and Conclusions of

Law does not change this. The trial court states “[e]ven if trial counsel

had taken advantage of the State’s ‘open file’ policy and reviewed the file

in the [Petitioner]’s case, he would not have discovered the Speights

report or the allegations the victim made against Speights.”29 The trial

court limits its factual conclusion to whether the Petitioner viewed the

Petitioner’s file. Petitioner does not proffer anything that discounts

whether requesting access to the open file policy would allow him to view

the Speights file. Trial counsel for the State stated that the Speights file

would have been accessible to Petitioner. There is nothing to indicate that

a mere phone call to the DA’s office would have allowed Petitioner to view

28 See State’s Trial Counsel’s Affidavit.

29 See page 9 of the Trial Court’s Findings and Conclusions.

Arg 14

the Speights file or other investigation could have uncovered the

information.

D.

The Police Report is Not Material Because It is Too Little, Too

Weak, or Too Distant From the Main Evidentiary Points to

Meet Brady’s Standards.

“Under our existing law, the defendant bears the burden of showing

materiality.”30 The test for materiality is whether “there is a reasonable

probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the

outcome.”31 “To make this determination we must examine the alleged

error in the context of the entire record.”32 “Furthermore, we must

examine the error in context of the overall strength of the State's case.”33

“[A] verdict which is only weakly supported by the record is more likely

to be affected by the prosecutorial error than a verdict which is strongly

supported.”34

30 Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997).

31 United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3380, 87 L.Ed.2d

481, 490 (1985).

32 Thomas v. State, 841 S.W.2d 399, 404–05 (Tex. Crim. App. 1992) (discussing

United States v. Bagley, 473 U.S. 667, 683 (1985) and United States v. Agurs, 427

U.S. 97, 113 (1976)).

33 Id.

34 Id. at 405.

Arg 15

A Brady claim requires that the evidence is not “too little, too weak,

or too distant from the main evidentiary points to meet Brady’s

standards.”35 Applicant’s defensive theory is that Speights committed the

sexual assault—and not Applicant. The police report does not support

this conclusion. In Means v. State36, the court held the that the report of

the unidentified hairs on the deceased victim does not establish his

defensive theory that a third party entered the hotel after the defendant

left. The defendant tried to establish that the victim was a prostitute.

The defendant was suggesting that victim had another appointment after

the defendant left and the next person committed the crime. The

defendant tried to establish his theory by showing that the police found

unidentified hairs on the victim. The results of the forensic report were

inconclusive. The court opined that no Brady violation occurred because

the unidentified hairs do not “undeniably support” the defensive theory

when considering all the evidence (i.e. the victim was a prostitute and

the defendant’s appointment was two hours before the time of death)

while the results were not inconsistent with the State’s theory of the case.

35 Turner v. United States, 137 S. Ct. 1885, 1887 (2017).

36 Means v. State, 429 S.W.2d 490, 495 (Tex. Crim. App. 1968).

Arg 16

Therefore, the court held that the evidence was not material and not

prejudicial to warrant reversal.

In Gowan v. State37, the court determined that a DNA report that

did not match defendant may have exonerated him on some uncharged

offenses but does not “necessarily exclude him as a suspect in the assault

on the victim in the indictment” and does not undermine the confidence

in the outcome of the trial.

Here, as stated above, the police report points to Applicant as the

perpetrator of the sexual assault. Applicant could not provide the crucial

link that establishes there was only one sexual assault that occurred.

Applicant admittedly stated he was not sure whether one or two

occurred.38 Applicant was merely speculating and seeking to find out via

the Brady request.

Trial counsel makes asserts in his affidavit that the police report is

material.

It is clear from the trial court’s comments that had I

been in possession of the sheriff’s department report

regarding Speights, the trial court would have made a very

37 Gowan v. State, 927 S.W.2d 246, 251 (Tex. App.—Fort Worth 1996).

38 2 RR 165 (“Defendant: … the problem for the defense in this case is that

without being able to be – you know, have the Court order the prosecuting attorney

to have the police department turn over the file to us, we don’t know if we’re talking

about two similar incidents or the same incident.).

Arg 17

different ruling on the defense’s request to put on the evidence

that the victim had made a false outcry at the insistence of

her mother to exonerate her boyfriend Billy Speights.39

This assessment is not supported by the record. The determination of the

trial court was not dependent on whether the document was physically

present in the court room.40 The trial court was notified of the significant

portions of the police report and made its decision accordingly.

Trial counsel further interjects information that is not in the record.

During the pre-trial, he stated that the mother made the child provide a

false story or the female would get a whipping. There is nothing that

suggests the female victim recanted to protect Speights. This is just mere

speculation without any corroborating evidence to make it admissible at

trial. The police report points toward an assault at the Applicant’s

residence. Nothing links this speculative motive or bias to anything not

“too little, too weak, or too distant from the main evidentiary points”.

Therefore, even if Applicant did not know all the information in the

police report, the evidence would not have influenced the verdict.

39 Trial Counsel Affidavit, page 3.

2 RR 166 (“there’s an allegation made against Mr. Speight, and the

allegations are very, very, very similar about what was done. But that’s not the same

thing as saying there’s only one assault.”).

40

Arg 18

VII.

Conclusion

This Court does not “normally consider questions of … fact-specific

questions about whether a lower court properly applied the wellestablished legal principles that it sets forth in its opinion.”41 This case

falls well within this rule.

Based on the foregoing, Respondent respectfully submits that

Petitioner’s application should be denied.

Respectfully Submitted,

Jerry D. Rochelle

Criminal District Attorney

Bowie County, Texas

601 Main Street

Texarkana, Texas 75501

By:

/s/ Randle Smolarz

Randle Smolarz

Assistant District Attorney

Bowie County, Texas

State Bar No.: 24081154

randle.smolarz@txkusa.org

COUNSEL FOR RESPONDENT

41 See Wetzel v. Lambert, 132 S.Ct. 1195 (2012)(Breyer, J., dissenting).

Arg 19