Opposition Brief — Willie Roy Jenkins, Petitioner v. Texas
Supreme Court briefNov 19, 2025
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No. 25-5397
IN THE
Supreme Court of the United States
WILLIE ROY JENKINS,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the Texas Court of Criminal
Appeals
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF
CERTIORARI
KELLY HIGGINS
Criminal District Attorney
Hays County, Texas
GWENDOLYN S. VINDELL
Assistant Attorney General/
Assistant District Attorney
Hays County, Texas
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
Gwendolyn.vindell2@oag.texas.gov
Counsel for Respondent
CAPITAL CASE
QUESTION PRESENTED
1. Whether the Court has jurisdiction over claims that were disposed of on adequate
and independent state law grounds?
2. Whether a writ of certiorari is warranted for fact-dependent, Texas-law-focused
false testimony and new-science claims predicated on legal bases never before
recognized by the Court?
3. Whether the Court should expend its limited resources to consider highly factbound federal false testimony claims, that were alternatively denied on the merits
by the Texas Court of Criminal Appeals, when Jenkins seeks nothing more than
mere error correction?
i
TABLE OF CONTENTS
QUESTION PRESENTED .............................................................................................i
TABLE OF CONTENTS ............................................................................................... ii
TABLE OF CITED AUTHORITIES ............................................................................ iii
BRIEF IN OPPOSITION ............................................................................................... 1
STATEMENT OF THE CASE ....................................................................................... 3
I.
Facts of the Crime ............................................................................................... 3
II. State’s Punishment Evidence ............................................................................. 9
III. Conviction and Initial Postconviction Proceedings .......................................... 11
IV. Subsequent Postconviction Proceedings ........................................................... 13
REASONS FOR DENYING THE WRIT ..................................................................... 15
I.
Jenkins’s Claims Were Denied on Adequate and Independent State
Law Grounds Depriving the Court of Jurisdiction. ..................................... 15
A.
The CCA’s error-preservation bar is adequate. ....................................... 17
B.
The CCA’s abuse-of-the-writ bar is independent. .................................... 24
II. Jenkins Provides No Compelling Reason for Further Review. ....................... 28
III. His Case Is a Poor Vehicle for Consideration of the Questions
Presented. ...................................................................................................... 29
IV. Jenkins’s State Law Claims Are Barred by Nonretroactivity
Principles And Without Merit. ..................................................................... 31
V. The CCA’s Straightforward Application of Napue Does Not Warrant
Review. ...................................................................................................... 34
CONCLUSION ............................................................................................................. 36
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Aguilar v. Dretke, 428 F.3d 526 (2005) ....................................................................... 19
Beard v. Kindler, 558 U.S. 53 (2009) .................................................................... 16, 21
Bousley v. United States, 523 U.S. 614 (1998) ............................................................ 33
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ............................................. 33
Cash v. Maxwell, 132 S. Ct. 611 (2012)....................................................................... 30
City & County of San Francisco v. Sheehan, 575 U.S. 600 (2015)............................. 19
Coleman v. Thompson, 501 U.S. 722 (1991) ......................................................... 16, 26
Cruz v. Arizona, 598 U.S. 17 (2023) ............................................................................ 18
Cutter v. Wilkinson, 544 U.S. 709 (2005) .................................................................... 29
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) ...................................... 33
Edwards v. Vannoy, 593 U.S. 255 (2021) ................................................................... 32
Estelle v. McGuire, 502 U.S. 62 (1991)........................................................................ 24
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007) ............................... 26, 27
Ex parte Carter, --S.W.3d--, 2025 WL 2161258 (Tex. Crim. App. July 30, 2025)..........
............................................................................................................................. 22, 32
Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) ......................................... 30
Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) ......................................... 22
Ex parte Colone, 663 S.W.3d 611 (Tex. Crim. App. 2022) ..................................... 21,22
Ex parte De La Cruz, 466 S.W.3d 855 (Tex. Crim. App. 2015) .......................... Passim
i
Ex parte Devoe, No. WR-80,402-01, 2014 WL 148689 (Tex. Crim. App. Jan. 15, 2014)
............................................................................................................................. 19, 22
Ex parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996) ..................................... 21, 22
Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) .......................... 18, 21
Ex parte Jenkins, No. WR-86,569-01, 2023 WL 2290883 (Tex. Crim. App. Mar. 1,
2023) .......................................................................................................................... 14
Ex parte Jenkins, Nos. WR-86,569-01, -02, 2025 WL 1122336 (Tex. Crim. App. Apr.
16, 2025) ............................................................................................................ Passim
Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) ................................. 17, 21
Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002).......................................... 24, 25
Ex parte Kussmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018) .............................. 27, 30
Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App. 2004) .......................................... 13
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) ............................................. 25
Ex parte Reed, 670 S.W.3d 689 (Tex. Crim. App. 2023) ............................................. 33
Ex parte Rhoades, No. WR-78,124-01, 2014 WL 5422197 (Tex. Crim. App. Oct. 1,
2014) .................................................................................................................... 19, 22
Ex parte Richardson, 201 S.W.3d 712 (Tex. Crim. App. 2006) ............................ 17, 18
Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) ..................................... 21
Expressions Hair Design v. Schneiderman, 581 U.S. 37 (2017) .......................... 19, 26
Foster v. Chatman, 578 U.S. 488 (2016) ..................................................................... 16
Glossip v. Oklahoma, 604 U.S. 226 (2025).......................................................... Passim
Harper v. Lumpkin, 64 F.4th 684 (5th Cir. 2023) ...................................................... 19
Harris v. Reed, 489 U.S. 255 (1989) ............................................................................ 16
Herb v. Pitcairn, 324 U.S. 117 (1945) ......................................................................... 24
ii
Herrera v. Collins, 506 U.S. 390 (1993) ................................................................ 28, 30
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008) ................................................ 26
Illinois v. Gates, 462 U.S. 213 (1983) .......................................................................... 18
James v. Kentucky, 466 U.S. 341 (1984) ..................................................................... 16
Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016).......................................... 11
Kunkle v. Texas, 125 S. Ct. 2898 (2004)...................................................................... 29
Kyles v. Whitley, 498 U.S. 931 (1990).......................................................................... 32
Lawrence v. Florida, 549 U.S. 327 (2007) ................................................................... 32
Lee v. Kemna, 534 U.S. 362 (2002) .............................................................................. 16
Moore v. Texas, 122 S. Ct. 2350 (2002) ....................................................................... 25
Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 17
Pierre v. Vannoy, 891 F.3d 224 (5th Cir. 2018) .......................................................... 27
Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010)...................................................... 26, 27
Skinner v. State, 484 S.W.3d 434 (Tex. Crim. App. 2016) ......................................... 13
Stewart v. Smith, 536 U.S. 856 (2002) ........................................................................ 16
Teague v. Lane, 489 U.S. 288 (1989) ........................................................................... 32
United States v. Johnston, 268 U.S. 220 (1925) ......................................................... 31
United States v. Olano, 507 U.S. 725 (1993) .............................................................. 23
Valdez v. State, No. AP-77,042, 2018 WL 3046403 (Tex. Crim. App. June 20, 2018)
................................................................................................................................... 20
Walker v. Martin, 562 U.S. 307 (2011)........................................................................ 20
Yee v. City of Escondido, 503 U.S. 519 (1992) ............................................................ 18
Young v. Ragen, 337 U.S. 235 (1949) .......................................................................... 21
iii
Statutes
28 U.S.C. § 1257(a) ...................................................................................................... 18
28 U.S.C. § 2244(b) ...................................................................................................... 24
Article 11.071 § 5 of Texas Code of Criminal Procedure .................................... Passim
Article 11.071 § 5(a) ............................................................................................... 15, 25
Article 11.071 § 5(a)(1)........................................................................................... 25, 27
Article 11.071 § 5(a)(2)................................................................................................. 25
Article 11.071 § 5(a)(3)................................................................................................. 25
Texas Code of Criminal Procedure Article 11.073, 2.................................................... 2
iv
BRIEF IN OPPOSITION
A serial rapist, convicted in both Texas and California, Petitioner Willie Roy
Jenkins was sentenced to death in Texas for the 1975 rape and murder of Sheryl
Norris. Norris was found dead in her apartment bathroom, with her nude-from-thewaist-down body face up over the edge of her bathtub, partially submerged in the
water, and with feces and blood in her genital and buttocks area. Jenkins denied
knowing Norris, but his sperm was inside Norris’s body and his DNA was, at the time,
on the blouse she was wearing when she died. Jenkins was found guilty of Norris’s
rape and murder, and after hearing about Jenkins’s sexually violent history during
punishment, the jury answered the special issues in such a way that a death sentence
was imposed.
Jenkins challenges his conviction primarily on the theory that, despite his
pattern of raping women at random, his sperm, in this one instance, consensually
found its way inside a victim he denied knowing. To that end, Jenkins sought initial
state collateral review, alleging, inter alia, that the State knowingly presented false
evidence during the guilt phase of trial. The Texas Court of Criminal Appeals (CCA),
largely adopting the habeas trial court’s 200-page findings of fact and conclusions of
law (FFCL) and conducting its own review, found Jenkins’s false testimony claims
procedurally barred because they could’ve been raised sooner and, alternatively,
meritless. See Ex parte Jenkins, Nos. WR-86,569-01, -02, 2025 WL 1122336, at *3
(Tex. Crim. App. Apr. 16, 2025) (unpublished).
1
While Jenkins’s initial writ proceedings were pending, the Texas Department
of Public Safety (DPS) conducted a State-initiated reinterpretation of the DNA
evidence due to changes in mixture interpretation statistics. The upshot of the newer,
more sensitive DNA testing was: 1) Jenkins’s link to the sperm in Norris’s body was
even stronger than it was at trial; but 2) the mixture on the blouse Norris wore when
she died is no longer interpretable. See Pet. App’x D, at 4. Jenkins filed a subsequent
state writ raising three claims arising under state law—1) a new-science claim via
Texas Code of Criminal Procedure Article 11.073, 2) an unknowing false testimony
claim, and 3) an actual innocence claim. The CCA dismissed Jenkins’s subsequent
application as an abuse of the writ without considering the merits. See Jenkins, 2025
WL 1122336, at *3.
Jenkins now seeks certiorari review of the CCA’s procedural and merits
rejections of the claims raised in both writs. But the request is jurisdictionally
foreclosed because the state court’s disposition of both writs relied upon adequate and
independent state procedural grounds. Review should nevertheless be denied, as
Jenkins fails to make a compelling case for this Court to expend its limited resources,
especially given that his case is a poor vehicle to address those questions where he
raises arguments that were not raised to the CCA and at least some of his claims—
including those he tries to cumulate with other cognizable claims—are predicated on
legal bases that have never been recognized by this Court as arising under the
Constitution. Instead, Jenkins has a pending federal habeas proceeding that would
serve as a better vehicle for his arguments. Certiorari review should be denied.
2
STATEMENT OF THE CASE
I.
Facts of the Crime
On November 24, 1975, just days before the Thanksgiving holiday, twenty-
year-old Sheryl Norris asked her boss if she could have the afternoon off so she could
pack for her trip home. 37 Reporter’s Record (RR) 110–15. Norris left work around
noon that day. 37 RR 111–15. Her live-in boyfriend Charles Wayne Andrus called the
apartment several times around 12:50 p.m., but Norris did not pick up. 37 RR 137–
38. Andrus had left their apartment that morning to drop off laundry and take his
car to the mechanic before heading to the Texas State University campus to study for
exams. 37 RR 136–37. After finishing one of those exams, Andrus picked his car up
around 5:00 p.m. and drove home. 37 RR 136, 138–39.
When Andrus arrived, the front door was ajar, and music was blaring “almost
at a deafening level.” 37 RR 140–41. Andrus found Norris in the bathroom lying face
up, bent backwards over the bathtub, with her pants down. 37 RR 144. Thinking she
had slipped or had an accident, Andrus reached down and grabbed Norris’s arm, but
it was stiff, and Andrus immediately knew she was dead. 37 RR 144–45. Worried the
assailant might still be in the apartment, Andrus ran to the neighbor’s apartment
and called the police. 37 RR 145.
A San Marcos Police Department (SMPD) officer was dispatched to the scene.
37 RR 172, 174. The officer encountered a visibly upset Andrus who said he had found
his girlfriend dead in their apartment. 37 RR 175–76. The officer went into the
apartment, found Norris’s dead body in the bathroom, and called for assistance. 37
RR 176–77. Several SMPD officers and Texas Rangers arrived. 37 RR 177–79. DPS
3
sent a crime scene unit, including Criminologist Joe Ronald Urbanovsky, to assist in
the collection and preservation of evidence. 37 RR 179–80, 204, 207, 210–11, 213,
216–17, 259–60.
Norris’s body was taken to the Pennington Funeral Home in San Marcos,
where Dr. Charles Bell conducted her autopsy. 37 RR 213, 217, 219. Dr. Bell collected
evidence and specimens, including a swabbing of Norris’s vagina that was preserved
on a slide. 37 RR 219–20, 222–25, 274–76. Microscopic examination of the slide
revealed the presence of spermatozoa. 37 RR 222–23, 275–76. Urbanovsky was
present for Norris’s autopsy, 37 RR 219–20, and he also saw spermatozoa on the slide,
37 RR 223.
Based on the crime scene evidence, investigators believed Norris struggled
with her attacker before her murder. 37 RR 270. A folded dollar bill and several coins
were scattered on the floor, unusual in the otherwise tidy apartment. 37 RR 181, 184,
251–52, 253–54, 255–56. A pair of underwear was found in the middle of the floor in
the bedroom. 37 RR 216–17, 258. In the living room, there was a hole in the sheetrock
wall up near a light switch. 37 RR 224. A white powdery substance was recovered
from the toe of Norris’s boot, the upper area of her left boot, and the bottom of her
pants. 37 RR 225–27, 261, 264–65. Through testing, DPS concluded the substance
was consistent with material recovered from the hole in the sheetrock of the
apartment. 37 RR 226–27, 242, 261, 264–65, 269. Given the proximity of the hole to
the light switch, Norris had likely kicked the wall during the apparent struggle. 37
RR 269–70.
4
Investigators also believed Norris had been raped shortly before her murder.
37 RR 214, 218, 222, 223–34, 265. Norris’s body was lying face up, bent backwards
over the water-filled bathtub, with arms extended and shoulders and head submerged
under water. 37 RR 177, 186, 262–64. Norris wore only a white blouse, a bra, and a
pair of knee-high boots. 37 RR 214, 258, 262–64. She wore no pants or underwear,
and sperm was present on the vaginal smear slide taken during her autopsy. 37 RR
216–17, 222–23, 258, 275–76. There was also fecal matter in the middle of the bed,
on the edge of a sheet, on the bathroom floor by Norris’s foot, and under her body. 37
RR 256–57, 260–61. Blood and fecal matter were on Norris’s buttocks and genital
area. 37 RR 218, 264–65. Two scarves were knotted tightly around her neck, and
abrasions indicated strangulation. 37 RR 214, 220–21, 264. Norris’s submerged
wristwatch was stopped at 12:31 p.m., suggesting she was killed within thirty
minutes of leaving work for lunch. 37 RR 263. The evidence pointed to a combined
rape/murder that occurred in a very short period. 37 RR 117, 214, 218, 222, 223–24,
265. At trial, Dr. Jeffrey Barnard, Chief Medical Examiner (ME) for Dallas County
and Director of the Southwestern Institute of Forensic Science (SWIFS), 1 testified
that Norris’s death was a homicide caused by strangulation and drowning. 38 RR 91,
99–100.
The case remained cold, 37 RR 221–22, 224–25, until forensic testing
eventually advanced enough to lead to Jenkins in 2010. In 1976, hair analysis and
blood-typing were largely unremarkable—some hairs were similar to Andrus’s, and
1
Dr. Bell was not called to testify, as the State believed he died. See 37 RR 59.
5
blood from the door in the bathroom was the same blood type as Norris. 37 RR 230–
31; 49 RR at State’s Exhibit (SX) 22.
But in 1997, prompted by a phone call from Norris’s older sister inquiring
about the status of the investigation into Norris’s murder, 37 RR 96–98; 38 RR 132–
33, SMPD Detective Penny Dunn began re-investigating the case, including
submitting evidence for analysis using polymerase chain reaction (PCR) DNA testing,
37 RR 237; 38 RR 134–35, 138–41. After again finding sperm on the vaginal smear
slide obtained during the 1975 autopsy, a DPS DNA analyst collected a sample from
the slide using two sterile swabs, one used for testing and the other frozen and stored.
39 RR 71–73, 81. Using differential extraction, 2 DPS obtained a sperm cell fraction
and epithelial cell fraction. 39 RR 98–104. DQ-Alpha and D1S80 amplification kits,
49 RR at SX 73, excluded Norris’s boyfriend Andrus as a contributor to the sperm cell
fraction of the vaginal smear slide, 39 RR 102–05, 109.
In 1999, the vaginal smear was analyzed using Short Tandem Repeat (STR)
testing. 39 RR 148, 151–53. A partial profile for an unknown male contributor was
identified. 39 RR 154, 167–68, 170, 195. The partial profile did not contain enough
Differential extraction was described to the jury as “normally done on semen
stains” because they usually “contain sperm and epithelial cells.” 39 RR 98. The
sperm cells, often called the “male component,” have thicker cell walls and can
therefore sustain “more rigorous extraction procedures.” Id. The epithelial cells, often
called the female component because it contains essentially the skin cells of the
victim, 39 RR 100, are “more sensitive and break[] apart more easily.” 39 RR 98. To
separate the two components, the sample is subjected to “conditions where it will
selectively break apart the epithelial cells.” Id. They then separate the epithelial cell
fraction and “what’s left is the undigested or still intact sperm cell heads.” Id. Those
sperm cell heads are then broken apart in “a harsher type of environment or
chemicals,” leaving “the DNA from the male contributor.” 39 RR 98–99.
2
6
markers to be uploaded into the Combined DNA Index System (CODIS). 39 RR 170–
72. Nevertheless, the DNA profile could be used for making one-to-one comparisons
to known DNA profiles. 39 RR 172. Andrus was again excluded as the contributor. 39
RR 195. Dunn continued to submit known DNA samples of other potential suspects
for comparison. 38 RR 144–47; 39 RR 172–74. No suspects were identified. 39 RR 177.
In 2008, DNA technology advanced to be better able to analyze degraded
samples. 38 RR 150; 39 RR 60–63, 222. On July 22, 2010, DPS reported that it had
analyzed the extract of the sperm cell fraction of the vaginal smear and obtained a
partial DNA profile consistent with a mixture. 38 RR 150; 39 RR 222. The DNA profile
of the major contributor to the mixture was entered into CODIS. 39 RR 228. Shortly
after, DPS advised Dunn that there was a “hit” in the CODIS database, meaning the
DNA profile of an offender in the national database matched the DNA profile from
the sperm cell fraction of the vaginal smear. 38 RR 151; 39 RR 160. That offender was
verified by the CODIS database as being Willie Roy Jenkins. 38 RR 152.
Though the jury didn’t hear this evidence during guilt, see infra Statement of
the Case II, Jenkins was at that time incarcerated in California as a Sexually Violent
Predator (SVP). 38 RR 152. Dunn went to California to obtain DNA samples from
Jenkins, and she interviewed Jenkins about Norris’s rape/murder. 38 RR 158–59.
Jenkins denied knowing Norris and denied any knowledge about the crime. 38 RR
159. Regardless, Jenkins could not be excluded as a contributor, and the probability
of selecting an unrelated person at random who could be a contributor to the same
DNA profile is approximately 1 in 365.6 quadrillion Caucasians, 1 in 5.705
7
quadrillion African Americans, and 1 in 20.37 quintillion Hispanics. 39 RR 237–38,
244–45.
With this direct link between Jenkins and the victim he denied knowing,
investigators delved further into the circumstances of the murder. Military records
showed that in 1975, Jenkins was stationed at the United States Marine Corps base
in Twentynine Palms, California. 38 RR 187. Jenkins was granted emergency leave
from the base for thirteen days beginning November 23, 1975, the day before Norris
was murdered. 38 RR 192–93. Jenkins could have left the base as early as 4:30 p.m.
on November 22nd if he was off duty and had his leave papers. 38 RR 193–94. While
on emergency leave, Jenkins drove to Texas to visit his wife, Merle Jenkins, who was
then hospitalized in San Antonio. 39 RR 30–32, 36–38. He stayed at the home of his
wife’s father in Marion, Texas, 39 RR 38, about thirty miles from San Marcos, where
Norris was murdered. Jenkins was familiar with the area: he grew up in Marion and
attended one semester at Texas State University on a football scholarship before
quitting to join the Marines. 38 RR 153; 39 RR 24–25.
Jenkins was then indicted on November 19, 2010, for two counts of intentional
murder (one by strangling and one by drowning) while in the course of committing or
attempting to commit aggravated rape. 1 Clerk’s Record (CR) 4. But while preparing
for trial, investigators discovered a second link between Jenkins and the victim:
Jenkins’s DNA was identified in a handprint on the white blouse Norris was wearing
when she died. 38 RR 162–65; 39 RR 248–50, 255–58. DNA testing of the blouse
revealed a partial DNA profile consistent with a mixture, and Jenkins could not be
excluded as a contributor to the profile at 15 locations. 39 RR 255–58. The probability
8
of selecting an unrelated person at random who could be a contributor to the DNA
profile at those loci was reported to be 1 in 457.9 trillion for Caucasians; 1 in 44.68
trillion for African Americans; and 1 in 8.977 quadrillion for Hispanics. 39 RR 259.
II.
State’s Punishment Evidence
The CCA summarized Jenkins’s pattern of sexual violence as follows:
The State called witnesses to testify to five different rapes
committed by [Jenkins]. One rape victim testified that [Jenkins] raped
her in California on August 8, 1975—a mere three months before raping
and killing Norris. The victim described riding her bicycle near Joshua
Tree National Park when [Jenkins] pulled her from her bicycle and
dragged her into his car. [Jenkins] drove off with the victim on the
floorboard of his car. The victim testified that she saw a pencil in the
floorboard and considered stabbing [Jenkins], but decided against it
because she feared [Jenkins] would kill her. After driving a distance
from where he abducted her, [Jenkins] stopped the car and raped the
victim. Then [Jenkins] drove back to the scene of the abduction, where
police had already gathered because a friend of the victim recognized
her abandoned bicycle and suspected foul play, and [Jenkins] “stopped
about 50 or 60 feet in front of all these police officers and just pushed
[her] out of the car and then he rode right through them.” [Jenkins] pled
guilty to rape in San Bernardino County, California[ 3] and was
originally given a probated sentence of three years. [Jenkins]’s probation
was later revoked.
Another victim was raped twice by [Jenkins] in San Antonio,
Texas, in early 1977. The victim testified that the experiences were so
traumatizing that she had difficulty remembering the details of the
rapes. The victim told of one of the rapes occurring at a used furniture
store where she worked after graduating from high school. After raping
the victim, [Jenkins] left the store and drove off, but not before the
victim was able to run out of the store and see the license plate number
on [Jenkins]’s car. Despite having [Jenkins]’s license plate number, the
victim did not report the rape to police at that time. The victim then told
of a second rape that occurred at the same store. Her memory was not
clear, but she did then report both sexual assaults to the police. The
victim was asked by police to identify her rapist from a live line-up, and
she identified [Jenkins]. The victim did not testify in court against
Notably, Jenkins pleaded guilty on November 20, 1975, 41 RR 94; 49 RR at SX
90, just four days before he raped and murdered Norris.
3
9
[Jenkins] at that time and testified that she has tried to block the rapes
from her mind.
[Jenkins]’s next victim was sexually assaulted in May 1977, when
she was in her early twenties. The victim died before this trial. Barbara
Niemann and Eddie Pinchback, both with the San Antonio Police
Department, testified to their investigation of the rape. Niemann
interviewed the victim and said that the victim identified her assailant
from a line-up. Pinchback testified that [Jenkins] was eventually
arrested for the rape. Pinchback also testified that he interviewed a
witness by the name of Willie Wood in connection with the rape. Willie
Wood testified that he was the person the victim initially encountered
after she was raped and that he and some of his coworkers were the ones
who called the police. Wood testified that the victim came running into
the grocery store warehouse in San Antonio, where he worked the 11
p.m. to 7 a.m. shift, and that the victim was naked from the waist down
and crying hysterically. Wood testified that the victim had cuts and
bruises all over her head. [Jenkins] pled guilty to aggravated rape in
this case. On November 14, 1977, he was convicted in Bexar County and
sentenced to seven years’ imprisonment.
Another victim, C.P.V., testified that [Jenkins] raped her on
August 20, 1983, in California when she was trying to get a ride back
home to another town. C.P.V. testified that she initially felt safe about
taking a ride from [Jenkins] because there was an older man in the
backseat of the car and she had not had problems when she had
previously accepted rides. However, after dropping the older man off at
a bus station, [Jenkins] drove to a secluded spot and raped C.P.V. in the
car. [Jenkins] pled guilty to “rape by force” in Kern County, California
on October 14, 1983. He was sentenced to eight years’ of imprisonment.
The last rape victim to testify against [Jenkins] testified that
[Jenkins] raped her on June 16, 1991, when she was twenty-one years
old. The victim had gone to a laundromat in the early morning hours of
June 16, but upon discovering that she needed coins for the laundromat,
the victim began walking to a gas station. [Jenkins] drove by and offered
the victim a ride. Once the victim was in the car, [Jenkins] drove to a
dark road and raped her in his car. After the rape, [Jenkins] allowed the
victim to leave the car. The victim walked back to the laundromat to get
her clothes and went home without reporting the rape because she was
so embarrassed. However, she eventually reported the rape to police and
picked [Jenkins] out of a line-up. [Jenkins] pled guilty to “rape by force”
in Kern County, California. He was convicted and sentenced to eight
years’ imprisonment, enhanced to ten years for two prior rape
convictions.
10
Jenkins v. State, 493 S.W.3d 583, 594–96 (Tex. Crim. App. 2016). Evidence was also
presented showing that Jenkins had molested his two stepdaughters while they were
children. Id. at 595–96. And Jenkins was classified as an SVP under California law
and civilly committed to Atascadero State Hospital for treatment. Id. at 596 & n.12.
But “being institutionalized did not slow down [Jenkins]’s propensity for violence,”
Jenkins, 493 S.W.3d at 619, so the State also showed that Jenkins “brutalized” others
from his psychiatric institution and pre-trial detention while he was in custody, id.
at 593.
III.
Conviction and Initial Postconviction Proceedings
Jenkins was convicted and sentenced to death, 2 CR 342–45, and his conviction
and sentence were affirmed, Jenkins, 493 S.W.3d at 589. While direct appeal was
pending, he filed an application for state habeas relief raising nine grounds for relief.
See generally Appl. Relevant here, he argued the State knowingly presented false
evidence that: 1) Dr. Bell was dead and had concluded Norris was raped; 2) Andrus
downplayed his drug-dealing and criminal history; 3) Andrus’s alibi had been
“confirmed quite strongly”; and 4) several original investigating officers had died.
Appl. 20–66. Jenkins “recognize[d] that much of the State’s false testimony could
have been exposed based on evidence provided to trial counsel during the discovery
process.” Id. at 65. So he also raised ineffectiveness claims faulting trial counsel for
failing to correct or rebut the same allegedly false testimony. See id. at 88–102.
A seven-day evidentiary hearing on Jenkin’s ineffective-assistance claims was
held in 2021. Evidence at the hearing established that trial counsel had copies in
11
their files and were otherwise fully aware of all the evidence Jenkins relied on during
postconviction proceedings to demonstrate supposed falsity. See, e.g., 7 Evid. Hr’g
Reporter’s Record (EHRR) 88, 93–94, 118, 156, 191–92, 195–96, 200, 202–03; 8 EHRR
163–64, 166; 10 EHRR 232–33, 245. Most notably, trial counsel testified that they
knew (even if the State didn’t) that Dr. Bell was not dead at the time of trial because
the defense spoke with him. See 7 EHRR 88, 156. Trial counsel testified that they
strategically chose not to call Dr. Bell because of his age, memory issues, and the
possibility that contesting the sexual assault would have opened the door at guilt to
Jenkins’s sexually violent past. 7 EHRR 160; 8 EHRR 168, 170; 10 EHRR 230.
Following the hearing, the parties submitted proposed FFCL, and closing
arguments were held. On May 12, 2022, the trial court largely adopted the State’s
proposed FFCL and recommended the denial of relief. In particular, the trial court
recommended that Jenkins’s false testimony claims be procedurally barred because
they were available at trial and therefore could’ve been raised on direct appeal. See
Pet. App’x B, at 25, 28, 32–33, 35, 40–41, 44–46, 49–50. The trial court alternatively
recommended that the claims be denied on the merits. See id. at 18–51. Jenkins
raised no objections to the trial court’s FFCLs to the CCA after the record was
forwarded to it.
On April 15, 2025, the CCA adopted all but two paragraphs 4 of the trial court’s
FFCL. Jenkins, 2025 WL 1122336, at *3. Based on the FFCL and its own independent
The two unadopted paragraphs were related to Jenkins’s claim that his lead
trial counsel—a former judge who presided over capital murder trials—was not
statutorily qualified to serve as first-chair counsel in a capital case. See Jenkins, 2025
WL 1122336, at *3 (not adopting paragraph numbers 226 and 227); Pet. App’x B.
4
12
review, the CCA denied Jenkins’s initial writ, agreeing that the false testimony
claims were procedurally barred because they could have been raised sooner and that
the claims were alternatively meritless. Id. (citing Ex parte Nelson, 137 S.W.3d 666,
667 (Tex. Crim. App. 2004)).
IV.
Subsequent Postconviction Proceedings
While the initial writ proceedings were pending, the Texas Forensic Science
Commission issued a communication regarding the use of Combined Probability of
Inclusion/Exclusion (CPI). See Skinner v. State, 484 S.W.3d 434, 493 n.7 (Tex. Crim.
App. 2016). The State accordingly requested on May 30, 2017, that DPS re-evaluate
Jenkins’s case for the use of CPI and conduct reinterpretation if eligible. See Pet.
App’x D, at 3. Several months later, DPS reported that Jenkins’s “case may benefit
from reinterpretation.” Id.
In July 2022, DPS informed the parties that, due to more sensitive DNA
testing, it had detected low levels of contamination in the reagent blank associated
with the epithelial cell fraction of the vaginal swab obtained from Norris’s autopsy.
See id. Needing a known sample for the victim to finish the reinterpretation of the
blouse, DPS inquired whether any other evidence could be used to derive a DNA
profile for Norris or whether it should proceed with the available evidence. Id. The
State requested that DPS proceed. See id.
Shortly after, Jenkins moved the CCA to stay the then-pending initial writ
proceedings until completion of the reinterpretation. See Jenkins, 2025 WL 1122336,
at *2. The CCA granted Jenkins’s motion and remanded the case to the trial court to
consider the new developments and determine whether they affected the claims
13
Jenkins raised in his initial writ. Ex parte Jenkins, No. WR-86,569-01, 2023 WL
2290883, at *1 (Tex. Crim. App. Mar. 1, 2023).
DPS reported the results of the reinterpretation in June 2023. Pet. App’x D, at
3–4. “Most significantly, [DPS] reported that [Jenkins] is linked even more strongly
as the contributor to the DNA in Norris’s vagina (by odds in the septillions versus the
previous quadrillions).” Jenkins, 2025 WL 1122336, at *2. However, the DNA mixture
on Norris’s white blouse is now uninterpretable because the known profile available
for Norris is now itself a mixture, unrelated to the contamination identified in 2022.
See Pet. App’x D, at 4.
On February 26, 2024, the trial court entered supplemental FFCL
recommending that the post-trial DNA developments were unrelated to and had no
effect on the claims Jenkins raised in his initial writ. Id. at 6–7. As such, the trial
court concluded any new claims predicated on those developments would be untimely
amendments to the initial writ over which the trial court had no jurisdiction. Id. at
7–8. Those findings, and the associated clerk’s record, were then forwarded to the
CCA.
Jenkins then filed his subsequent state writ in the CCA. Jenkins, 2025 WL
1122336, at *2. He raised three claims related to the new DNA developments: 1) the
new results justify Article 11.073 relief because they contradict trial evidence tying
Jenkins to the blouse and “may” undermine Jenkins’s link to the sperm; 2) the new
results render false trial evidence regarding the blouse and the quality of the DNA
analysis; and 3) he is actually innocent. See id.; see also Subsequent Appl. for Writ of
Habeas Corpus 25–36, 56–58, 63, Ex parte Jenkins, 2025 WL 1122336, at *3 (Sub.
14
Appl.). Jenkins also raised Article 11.073, false testimony, and actual innocence
claims that scientific developments since trial undermine Dr. Barnard’s and
Urbanovsky’s opinions that Norris had been raped. See Sub. Appl. 37–44, 58–59, 63.
Jenkins argued he could overcome Article 11.071 § 5 of Texas Code of Criminal
Procedure because the science was new and not ascertainable by him when he filed
his initial writ. See id. at 50–54, 61–62, 76.
On April 16, 2025, in the same order disposing of Jenkins’s initial writ, the
CCA adopted the trial court’s supplemental FFCL. Jenkins, 2025 WL 1122336, at *3.
The CCA held Jenkins “failed to satisfy the requirements of Article 11.071 § 5(a)” and
dismissed the writ as an abuse of the writ “without considering the merits of the
claims.” Id.
REASONS FOR DENYING THE WRIT
I.
Jenkins’s Claims Were Denied on Adequate and Independent State
Law Grounds Depriving the Court of Jurisdiction.
Jenkins seeks certiorari review of: 1) federal false testimony claims that were
barred for failure to be raised sooner, and 2) state-law false testimony, new-science,
and actual innocence 5 claims that were barred as abusive. Each of these state-law
determinations strips this Court of jurisdiction.
The petition is unclear on which state-law claims he seeks this Court’s review.
At times, he refers only to the false testimony claims. See Pet. 24 (arguing the CCA
“refused to specify the basis for not authorizing Mr. Jenkins’s false evidence claims
raised in his subsequent application”). At others, he appears to fault the CCA’s
dismissal of his new-science and actual innocence claims, see id. at 16 (stating that
the CCA dismissed his “new false evidence and actual innocence claims”), 25 (same),
27 (claiming new science developments were “part of the procedural gateway for his
actual innocence claim”). At yet others, he relegates reference to his new-science and
actual innocence claims to footnotes. See Pet. 13 n.2. Jenkins’s lack of clarity makes
5
15
“This Court lacks jurisdiction to entertain a federal claim on review of a state
court judgment ‘if that judgment rests on a state law ground that is both
‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s
decision.’” Foster v. Chatman, 578 U.S. 488, 497 (2016) (quoting Harris v. Reed, 489
U.S. 255, 260 (1989)). To be adequate, the state law ground must be “‘firmly
established and regularly followed.’” Lee v. Kemna, 534 U.S. 362, 885 (2002) (quoting
James v. Kentucky, 466 U.S. 341, 348 (1984)). A “discretionary rule can be ‘firmly
established’ and ‘regularly followed’ even if the appropriate exercise of discretion may
permit consideration of a federal claim in some cases but not others.” Beard v.
Kindler, 558 U.S. 53, 60–61 (2009). Ultimately, situations where a state law ground
is found inadequate are but a “small category of cases.” Kemna, 534 U.S. at 381. To
be independent, the state law ground must not “depend upon a federal constitutional
ruling on the merits.” Stewart v. Smith, 536 U.S. 856, 860 (2002). There is no
presumption of federal law consideration. Coleman v. Thompson, 501 U.S. 722, 735
(1991). Rather, the state court’s decision must “fairly appear to rest primarily on
federal law, or to be interwoven with the federal law.” Id. Where there is no “clear
indication that a state court rested its decision on federal law, a federal court’s task
will not be difficult.” Id. at 739–40.
his case a poor vehicle to address the questions he presents. See Sup. Ct. R. 14.4 (“The
failure of a petitioner to present with accuracy, brevity, and clarity, whatever is
essential to ready and adequate understanding of the points requiring consideration
is sufficient reason for the Court to deny a petition.” (emphasis added)).
16
A.
The CCA’s error-preservation bar is adequate.
Jenkins’s initial writ raised several knowing-use-of-false-testimony claims
under Napue v. Illinois, 360 U.S. 264 (1959). However, Jenkins fully admitted that
much of the alleged falsity could have been exposed by trial counsel with evidence
provided to them during pre-trial discovery. See supra Statement of the Case III. And
evidence at the evidentiary hearing repeatedly proved this true. Counsel was aware
of those documents but strategically chose not to object to or rebut what amounted
to, at most, mere inconsistencies either because: they preferred not to draw the jury’s
attention to certain facts; they did not think it would matter; they worried contesting
some of it would open the door to Jenkins’s highly probative sexual assault history;
or some combination of the above. See id.; see also Pet. App’x B, at 96–112.
Because of this conclusive evidence demonstrating that counsel was aware of—
sometimes even more than the State—any alleged falsity and intentionally chose to
do nothing about it, the CCA adopted the trial court’s FFCL that Jenkins’s false
testimony claims were barred because they could have been raised sooner. Jenkins,
2025 WL 1122336, at *3; see also Ex parte Jimenez, 364 S.W.3d 866, 880 (Tex. Crim.
App. 2012) (“[W]e recently noted our trend . . . to draw stricter boundaries regarding
what claims may be advanced on habeas petitions because the Great Writ should not
be used to litigate matters which should have been raised on appeal or at trial.”
(cleaned up) (quoting Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim. App.
2006)).
Jenkins argues that the CCA’s imposition of this procedural bar was not based
on an adequate state law ground for two reasons. First, he argues it was a novel,
17
“unforeseeable,” and “unsupported” application of a bar that has never been used by
the CCA because such claims are “always” considered on the merits and prior
availability has only affected the harm standard to be applied. See Pet. 17–22 (citing,
e.g., Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011); Cruz v. Arizona,
598 U.S. 17, 25 (2023)). Second, Jenkins argues the CCA’s rule contravenes Glossip
v. Oklahoma, 604 U.S. 226, 252 (2025), which held defense counsel’s knowledge is
irrelevant to the due process inquiry. See Pet. 22–24. Jenkins is wrong on both fronts.
Initially, Jenkins presented neither of these arguments to the CCA, even
though the trial court’s FFCL recommended his claims be barred because he didn’t
raise them sooner. Texas law permits parties to object to trial court FFCL, see Tex.
R. App. 73.4(b)(2), and if he felt that the trial court’s recommendation that a bar be
imposed was novel, unforeseeable, or unfair, he could have raised that objection to
the CCA, but he did not. He did not argue that the imposition of a bar would overrule
the CCA’s prior precedent, and he did not even cite or ask the CCA to consider (or
reconsider) Glossip’s effect on its error-preservation bar, despite Glossip’s availability
before the CCA issued its decision. Compare Glossip, 604 U.S. at 226 (decided Feb.
25, 2025), with Jenkins, 2025 WL 1122336, at *1 (decided Apr. 16, 2025). Because
these arguments were “‘not pressed or passed upon’ in state court,” Illinois v. Gates,
462 U.S. 213, 219 (1983), such questions are not part of the “[f]inal judgment[] or
decree[] rendered by the highest court of” Texas necessary for this Court’s
jurisdiction, 28 U.S.C. § 1257(a). Regardless, “the Court has, with very rare
exceptions, refused to consider petitioners’ claims that were not raised or addressed
below,” Yee v. City of Escondido, 503 U.S. 519, 533 (1992); see also City & County of
18
San Francisco v. Sheehan, 575 U.S. 600, 609 (2015) (dismissing a question “not
passed on below” as improvidently granted).
Nevertheless, Texas’s should’ve-been-raised-earlier rules have long been
recognized as adequate state grounds capable of barring federal review. See Harper
v. Lumpkin, 64 F.4th 684, 693–294 (5th Cir. 2023) (citing Aguilar v. Dretke, 428 F.3d
526, 535 (2005)); cf. Expressions Hair Design v. Schneiderman, 581 U.S. 37, 45 (2017)
(noting this Court generally defers to a court of appeals’s interpretation of their
respective states’ laws). And Jenkins is incorrect that the CCA has never applied that
rule to a false testimony claim—the CCA has adopted trial court FFCL similar to
Jenkins’s barring false testimony claims raised in initial writs because they were not
raised sooner. See, e.g., Ex parte Rhoades, No. WR-78,124-01, 2014 WL 5422197, at
*1 (Tex. Crim. App. Oct. 1, 2014) (unpublished) (adopting finding that the applicant’s
false-testimony complaints were barred on habeas review because the testimony was
not objected to at trial); Ex parte Devoe, No. WR-80,402-01, 2014 WL 148689, at *1
(Tex. Crim. App. Jan. 15, 2014) (unpublished) (same). 6
More than that, as Jenkins concedes, Pet. 19, the CCA expressly considered,
in the context of a false testimony claim, the general rule that “a convicted person
may not raise a claim for the first time in a habeas-corpus proceeding if he had a
reasonable opportunity to raise the issue at trial or on direct appeal and failed to do
so.” Ex parte De La Cruz, 466 S.W.3d 855, 864 (Tex. Crim. App. 2015). Applying that
principle to De La Cruz’s facts, the CCA found his false testimony claim was not
The trial court FFCL in these two cases are included in an appendix because
they are not available on the electronic database.
6
19
barred because his claims were “premised on new factual and legal bases that were
not reasonably available to him during his trial or direct appeal,” and he therefore
had no “adequate opportunity” to raise earlier. Id. at 864–65. In other words, unlike
Jenkins, De La Cruz “raised his claim . . . at the earliest possible opportunity.” Id. at
865. The CCA thus concluded that the circumstances of De La Cruz’s case, “in
conjunction, weigh in favor of consideration of his claim on the merits.” Id.
Jenkins downplays De La Cruz’s import by suggesting the CCA just “noted the
general principle” but “ultimately declined” to “revisit[] its false evidence
jurisprudence[.]” Pet. 19. But the CCA did not just “note” the principle; it applied it
to the specific facts of De La Cruz’s case and found a bar was not appropriate.
Jenkins’s nitpicking of the word “note” does not mean he can claim unfair surprise
that the bar may be applied in the right case—his. Texas is allowed to “extend its
prior [procedural bar] jurisprudence, including by applying the Rule to new situations
as they arise.” Cruz, 598 U.S. at 30; see also Valdez v. State, No. AP-77,042, 2018 WL
3046403, at *7–8 (Tex. Crim. App. June 20, 2018) (appellant’s false evidence claims
were barred on direct appeal due to lack of a contemporaneous objection at trial).
Moreover, Jenkins’s argument that De La Cruz does not overrule the CCA’s
precedent applying a more stringent harm standard relies on a false dichotomy—the
CCA doesn’t have to overturn its harm-standard jurisprudence to find that, in some
circumstances, a petitioner’s failure to raise a false testimony claim earlier bars its
review. See Walker v. Martin, 562 U.S. 307, 320 (2011) (“A discretionary rule ought
not be disregarded automatically upon a showing of seeming inconsistencies.”).
Indeed, Jenkins acknowledges (at 23) that fact questions usually surround whether
20
a claim was reasonably available sooner. See Ghahremani, 332 S.W.3d at 482 (“[T]he
determinative factor in whether a defendant can raise the issue on direct appeal is,
frequently, how well the State hid its information.”). A state court is permitted
discretion to sidestep that question and simply hear the merits of the claim. See
Beard, 558 U.S. at 60–61. This is especially true where, as in the cases Jenkins cites,
Pet. 17–18, the parties do not raise a potential procedural bar. 7
But even had the CCA considered issues not raised in those cases, it is not clear
imposition of the bar would have been warranted. True, Ex parte Fierro established
the higher harm standard for false testimony claims that could’ve been raised sooner.
934 S.W.2d 370, 374 & n.10 (Tex. Crim. App. 1996). But Fierro was decided both
before the CCA recognized in 2004 its “trend . . . to draw stricter boundaries” around
when claims are properly raised for the first time in habeas, see Jimenez, 364 S.W.3d
at 880, and before the Court expressly considered the bar’s application in false
testimony claims in De La Cruz in 2015.
And since Fierro, the CCA either: 1) found claims were not available to be
raised earlier, see, e.g., Ghahremani, 332 S.W.3d at 482; Ex parte Weinstein, 421
S.W.3d 656, 663 (Tex. Crim. App. 2014) (trial judge found neither State nor defense
were aware of the falsity); Ex parte Colone, 663 S.W.3d 611, 612 (Tex. Crim. App.
The fact that Jenkins cites a litany of cases in which no procedural bar was
imposed makes his simultaneous argument (at 23–24) that the CCA’s rule would
entirely preclude consideration of false testimony claims ring hollow. His citation to
Young v. Ragen also does not help him, as Young dealt with a state categorically
barring postconviction review of federal due process claims. 337 U.S. 235, 238 (1949).
Texas has a “clearly defined method by which [Jenkins] may raise claims of denial of
federal rights,” id. at 239; he just can’t benefit from it because he didn’t adequately
preserve his claims.
7
21
2022) (meritorious State suppression-of-evidence and concomitant false testimony
claims); Ex parte Carter, --S.W.3d--, 2025 WL 2161258, at *2 (Tex. Crim. App. July
30, 2025) (subsequent false testimony claims were authorized under Article 11.071 §
5(a), meaning they were not previously available); or 2) punted on whether the higher
harm standard would apply because no materiality had been found, see, e.g., Ex parte
Chavez, 371 S.W.3d 200, 210 (Tex. Crim. App. 2012). Only in Ex parte Lalonde did
the CCA appear to find that the higher standard should apply because the applicant
attempted, but was not permitted, to raise the claim on direct appeal. See 570 S.W.3d
716, 723. But the CCA ultimately did not apply the harmless error standard because
it found no materiality. 8 Id. at 724. Thus, few cases since Fierro have had facts like
Jenkins’s—clear evidence that defense counsel, at trial, was fully aware of, and chose
not to pursue, evidence that could prove alleged falsity. And in those that did—like
Rhoades and Devoe—the CCA barred them. Thus, the CCA’s application of a bar in
Jenkins’s case is not inconsistent with, nor did it overrule, its prior jurisprudence.
Jenkins’s argument that Glossip invalidates the CCA’s procedural bar is
similarly unavailing. Glossip addressed Oklahoma’s “mistaken interpretation of
Napue” on the merits of a federal constitutional claim. 604 U.S. at 252. This Court
did not purport to address a state court’s own interpretation of its state preservation
rules. And Jenkins makes no assertion that the preservation bar is interwoven with
Notably, the CCA found under a related claim that the State had suppressed
the perjury evidence at trial. See Lalonde, 570 S.W.3d at 725. Given that finding as
well as the applicant’s unsuccessful attempt to raise the claim sooner, it certainly
seems at least within the CCA’s equitable discretion to choose not to procedurally bar
the perjury claim, even if a bar had been raised.
8
22
federal law, so this Court’s holdings about the proper application of that federal law
is inapposite to the adequacy of the bar. Indeed, to the extent it touched on any errorpreservation issues, the Court, in rejecting the dissent’s argument that Glossip
“ignored the lithium issue on direct appeal,” noted that “Glossip had no reason to
know at the time of his direct appeal that [the prosecutor] knowingly failed to correct
Sneed’s false testimony . . . so he would have had no occasion to raise his Napue”
claim then. Id. at 240 n.4. (emphasis added). Jenkins did have occasion to do so, and
he still didn’t.
Surely the Court did not intend to upend state court procedure by suggesting
that even where evidence definitively proves trial counsel had in their possession
every piece of evidence a defendant now claims proves falsity, 9 the state court cannot
require defense counsel to object at trial, raise it on appeal, or forfeit it forever more.
Cf. United States v. Olano, 507 U.S. 725, 731 (1993) (“No procedural principle is more
familiar to this Court than that a constitutional right . . . may be forfeited in criminal
. . . cases by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.” (cleaned up)). While the defense’s inaction may be
Even in Glossip, the evidence defense counsel had was not on all fours with the
falsities: the false testimony “concerned the reasons for his lithium prescription, not
the mere fact that he had taken it,” and “Glossip’s counsel was aware of the latter,
not the former.” 604 U.S. at 252; see also id. at 253 n.10 (“[T]he defense did not know
during trial that Sneed had been diagnosed with bipolar disorder; to the contrary,
Glossip later sought (and the State successfully opposed) discovery on that issue.”).
And fundamentally, the state in Glossip withheld eight boxes of documents, including
those underlying his false testimony, and other, prosecutorial misconduct claims. See
id. at 231, 237–38. There are no similar allegations of suppression in Jenkins’s case.
9
23
irrelevant to Due Process, see Glossip, 604 U.S. at 253 n.10, 10 the potential for
sandbagging is most certainly within the purview of a state’s procedural rules to
prevent.
The crux of Jenkins’s complaint is he thinks the CCA’s procedural bar is
incorrect. But whether an applicant could have raised a claim sooner is purely a
question of Texas state law, cf. Moore v. Texas, 122 S. Ct. 2350, 2353 (2002) (mem.)
(Scalia, J., dissenting), and “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions,” Estelle v. McGuire,
502 U.S. 62, 67–68 (1991); see also Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945) (“Our
only power over state judgments is to correct them to the extent that they incorrectly
adjudge federal rights.”).
B.
The CCA’s abuse-of-the-writ bar is independent.
Texas, like Congress, has imposed significant restrictions on second-in-time
habeas applications. Compare Tex. Code Crim. Proc. art. 11.071 § 5, with 28 U.S.C.
§ 2244(b). A Texas court may not reach the merits of a claim in a subsequent
application “except in exceptional circumstances.” Ex parte Kerr, 64 S.W.3d 414, 418
(Tex. Crim. App. 2002). The applicant bears the burden of providing “sufficient
Again, Glossip dealt with facts, withheld by the state, that objectively
disproved a key witness’s testimony about why he was prescribed a medication by a
doctor he denied seeing. 604 U.S. at 618, 253 n.10. The alleged falsities in Jenkins’s
case are nowhere near the same ilk—they amount to mere inconsistencies in witness
testimony that is cross-examination fodder for the defense to elicit if they so choose.
See infra Argument V. Certainly, the State is not required to preemptively present to
the jury every piece of conceivably impeaching evidence it (indisputably) disclosed to
defense counsel regarding a particular witness—that would render entirely pointless
Brady’s obligation to turn over that evidence in the first place and would
fundamentally alter the adversarial nature of criminal proceedings.
10
24
specific facts establishing,” Article 11.071 § 5(a), one of these “exceptional
circumstances,” Ex parte Kerr, 64 S.W.3d at 418.
First, an applicant can prove either factual or legal unavailability of a claim.
Article 11.071 § 5(a)(1). A claim is legally unavailable when its legal basis “was not
recognized or could not have been reasonably formulated from a final decision of the
[this Court], a court of appeals of the United States, or a court of appellate jurisdiction
of this state,” id. § 5(d), and factually unavailable when its factual basis “was not
ascertainable through the exercise of reasonable diligence,” id. § 5(e). Second, an
applicant can prove that, but for a constitutional violation, “no rational juror could
have found the applicant guilty beyond a reasonable doubt.” Id. § 5(a)(2). This
requires an applicant to “make a threshold, prima facie showing of innocence by a
preponderance of the evidence.” Ex parte Reed, 271 S.W.3d 698, 733 (Tex. Crim. App.
2008). Third, an applicant can prove “by clear and convincing evidence,” but for a
constitutional violation “no rational juror would have answered in the [S]tate’s favor
one or more of the special issues.” Article 11.071 § 5(a)(3).
Below, Jenkins accepted the burden of proving an exception to the abuse-ofthe-writ bar. Sub. Appl. 50–54, 61–62, 76. He argued factual unavailability, 11 id., but
the CCA disagreed, finding Jenkins failed to “satisfy the requirements of Article
11.071 § 5” and dismissing the claims “as an abuse of the writ without considering
the merits of the claims,” Jenkins, 2025 WL 1122336, at *3. Before this Court, Jenkins
does not challenge the adequacy of § 5 and for good reason—the Fifth Circuit “has
He also sought authorization for his unknowing false testimony claims under
§ 5(a)(2), see Sub. Appl. 61–62, but he does not seek review of that determination here.
11
25
held that, since 1994, the Texas abuse of the writ doctrine has been consistently
applied as a procedural bar, and that it is an independent and adequate state ground
for the purpose of imposing a procedural bar.” Hughes v. Quarterman, 530 F.3d 336,
342 (5th Cir. 2008); cf. Expressions Hair Design, 581 U.S. at 45. The only question,
then, is whether Section 5 is independent of federal law.
Jenkins argues that it’s not. Pet. 24–28. He argues § 5 requires the applicant
to satisfy two prongs: 1) making a prima facie showing of a constitutional claim, and
2) showing the factual or legal unavailability of the claim. See id. at 25 (citing Ex
parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007)). While conceding the
second prong is “a state law ground,” id. at 27, Jenkins argues the first prong is
interwoven with federal law because it is “a federal law inquiry into the factual
sufficiency of the claim.” Id. at 25–26. Jenkins emphasizes that the CCA did not
specify upon which prong it was dismissing his subsequent application; thus, it is
impossible to tell whether the CCA relied on state or federal law. Id. Jenkins is wrong
on all fronts.
The CCA explicitly stated it was not considering the merits of Jenkins’s
subsequent writ, and Jenkins’s speculation about sub silentio federal law
consideration cannot overcome this express statement. See Coleman, 501 U.S. at 735.
Indeed, Jenkins describing the CCA’s decision as “unelaborated,” see Pet. 25, 27, and
“unclear,” id. at 25, dooms his argument because if there is no clear indication that a
state court rested its decision on federal law, this Court will not presume that such a
state court decision was interwoven with it. Coleman, 501 U.S. at 735, 739–40; see
also Rocha v. Thaler, 626 F.3d 815, 835 (5th Cir. 2010) (rejecting contention “that
26
[Article 11.071] § 5(a)(1) is dependent on federal law in all cases”). And the Fifth
Circuit has recognized that the CCA conducts its § 5 analysis in the order laid out by
Campbell:
Campbell establishes that the two requirements of § 5(a)(1) should be
applied sequentially. The CCA first examines whether the factual or
legal basis of the claim was unavailable at the time of the original
application. Only if the applicant can surmount the unavailability
hurdle does the CCA proceed to ask whether the application makes out
a claim that is prima facie meritorious.
Rocha, 626 F.3d at 834 (emphasis added); accord Campbell, 226 S.W.3d at 421–22
(dismissing claim as abuse of the writ where claim was unavailable but without prima
facie merit). There is no indication that the CCA proceeded to a prima facie merits
analysis in Jenkins’s case. 12
Importantly, it is difficult to see how the CCA’s dismissal even could be
intertwined with federal law when Jenkins’s claims were themselves state-law
creations. See Ex parte Kussmaul, 548 S.W.3d 606, 633 (Tex. Crim. App. 2018)
(Article 11.073 is a “statutory, non-constitutional” creation); Pierre v. Vannoy, 891
F.3d 224, 230 (5th Cir. 2018) (Ho, J., concurring), as revised (June 7, 2018) (“There is
a long line of unbroken precedent from both this Court and the U.S. Supreme Court
holding that false trial testimony does not implicate a defendant’s due process rights
Jenkins inaccurately suggests the trial court concluded that the facts were
previously unavailable. Pet. 27. The trial court found the new test results unrelated
to the claims in Jenkins’s initial writ because those claims were all trial related, and
the new results didn’t exist at the time of trial. See Pet. App’x D, at 6. This is a subtle,
but important, difference, as § 5 requires the applicant to show that the subsequent
claims “could not have been presented previously in a timely initial application.”
Article 11.071 § 5(a)(1) (emphasis added). The trial court expressly left that question
to the only court with jurisdiction to decide it—the CCA. See Pet. App’x D, at 8.
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if the State was unaware of the falsity at the time the testimony was given.”); Herrera
v. Collins, 506 U.S. 390, 400 (1993) (actual innocence is not a cognizable federal
claim). Thus, even if the abuse-of-the-writ bar can sometimes be interwoven with
federal law or even if the CCA proceeded to the second step, it did not decide a federal
issue because there was no federal question to decide.
Ultimately, § 5—a state-law ground clearly and unambiguously applied by the
CCA—prohibits this Court from exercising jurisdiction over Jenkins’s subsequent
claims. See Kunkle v. Texas, 125 S. Ct. 2898, 2898 (2004) (mem.) (Stevens, J.,
concurring) (“I am now satisfied that the Texas court’s determination was
independently based on a determination of state law, see Tex. Code Crim. Proc. art.
11.071 § 5 [], and therefore that we cannot grant petitioner his requested relief.”).
Jenkins’s petition should be denied.
II.
Jenkins Provides No Compelling Reason for Further Review.
The Court requires those seeking a writ of certiorari to provide “[a] direct and
concise argument amplifying the reasons relied on for allowance of the writ.” Sup. Ct.
R. 14.1(h) (emphasis added). The Court, however, would be hard pressed to discover
any such reason in Jenkins’s petition, let alone amplification thereof. Jenkins makes
no allegations of circuit or state-court-of-last-resort conflict, and he makes no effort
to explain why they are important to the judiciary or citizenry at large. See Sup. Ct.
R. 10(a)–(c). The best he musters is an argument that the CCA’s procedural bar of his
initial writ claims conflicts with this Court’s precedent, see Pet. 22, but as explained
above, this Court did not address state preservation rules in Glossip, so there is no
conflict upon which to grant the writ. And since the CCA made no federal law
28
determinations in barring Jenkins’s claims, and addressed state-law-only claims in
his subsequent application, the state court has not decided an important question of
federal law. See Sup. Ct. R. 10(c) (certiorari is warranted when “a state court . . . has
decided an important question of federal law that has not been, but should be, settled
by this Court” (emphasis added)).
Left with no true ground for review in his briefing, the only reasonable
conclusion is that Jenkins seeks mere error correction. But that is hardly a good
reason to expend the Court’s limited resources. See Sup. Ct. R. 10 (“A petition . . . is
rarely granted when the asserted error consists of . . . the misapplication of a properly
stated rule of law.”). And such a request is especially problematic here because the
court below did not reach the merits of the claims Jenkins raised in his subsequent
writ, and this Court is one “of review, not of first view.” Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005).
The state court proceedings in Jenkins’s case were more than adequate; he is
merely displeased with the final result. Certiorari review is not merited on this basis.
Jenkins’s petition should be denied.
III.
His Case Is a Poor Vehicle for Consideration of the Questions
Presented.
Jenkins’s petition suffers significant vehicle problems. As argued above, his
first question presented raises arguments not pressed to the CCA—he did not ask the
CCA to consider whether its procedural bar was inconsistent with its prior precedent,
and he did not ask the CCA to consider Glossip at all, much less its effect on its
29
procedural rules. These vehicle problems should defeat his request for certiorari
review. See Yee, 503 U.S. at 533.
Similar flaws afflict his second and third questions presented. He purports to
have raised claims under Napue, Pet. 36, which held that “a conviction obtained
through use of false evidence, known to be such by representatives of the State, must
fall under the Fourteenth Amendment.” 360 U.S. at 269. While the claims Jenkins
raised in his initial writ were properly raised under Napue, in his subsequent writ,
Jenkins cited Napue but did not—as required, id.—allege that Texas knowingly used
false evidence, see Sub. Appl. 55–56. Instead, he relied on Texas’s more defendantfriendly unknowing-use rule. Id. (citing Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim.
App. 2009)). Indeed, his subsequent false evidence claim relied on the same “new
science” supporting his Article 11.073 claim, which he argued was not available to
him at trial. And his Article 11.073 and actual innocence claims are themselves not
federal questions. See Kussmaul, 548 S.W.3d at 633; Herrera, 506 U.S. at 400.
This raises several problems for Jenkins. First, this Court has no jurisdiction
to address state law questions, so even if Jenkins could overcome Texas’s abuse-ofthe-writ bar on those claims, the Court would still have no jurisdiction to address
their merits. Second, this Court is “unlikely” to extend Napue so broadly. Cash v.
Maxwell, 132 S. Ct. 611, 615 (2012) (Scalia, J., dissenting from denial of certiorari).
And even if the Court someday were to expand Napue, this would not be the case in
which to do so because Jenkins does not allege a circuit split as to what Napue
requires. Expanding Napue in the way Jenkins needs would be a monumental
decision. The Court should not take such an extraordinary step where the issue has
30
received almost no analysis in the lower court decision or the certiorari petition.
Third, he attempts to cumulate his state law claims with his federal due process ones,
see Pet. 28–38—an argument which he also did not press to the CCA, presenting
vehicle problems for his third question presented.
And even putting all of that aside, Jenkins’s third question presented is highly
fact bound, and this Court does “not grant a certiorari to review evidence and discuss
specific facts.” United States v. Johnston, 268 U.S. 220, 227 (1925); cf. Foster, 578 U.S.
at 500 (“[I]n the absence of exceptional circumstances, we defer to state court factual
findings unless we conclude that they are clearly erroneous.”). That task fell to the
CCA.
At bottom, this case presents an exceptionally poor vehicle for reaching the
merits of Jenkins’s claims. But Jenkins is not without a potential remedy to raise
many of these arguments—he still has federal habeas available. See Lawrence v.
Florida, 549 U.S. 327, 335 (2007) (review is rarely granted “‘at this stage of the
litigation even when the application for state collateral relief is supported by arguably
meritorious federal constitutional claims,’ choosing instead to wait for ‘federal habeas
proceedings.’” (quoting Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J.,
concurring))). Because a better vehicle remains for Jenkins’s arguments, certiorari
should be denied
IV.
Jenkins’s State Law Claims Are Barred by Nonretroactivity Principles
And Without Merit.
Jenkins’s three state-law claims do not warrant further review. First, to make
them cognizable, the Court would need to establish new constitutional rules of
31
criminal procedure, which nonretroactivity principles prohibit, since Jenkins’s
conviction has long been final. See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality
opinion); Edwards v. Vannoy, 593 U.S. 255, 272 (2021). Second, the claims lack merit.
Even if Jenkins were raising a Napue claim, it would fail, as the State did not know
of any falsity (which Jenkins admits, see Sub. Appl. 61–62), and it was not false, at
the time of trial. See Napue, 360 U.S. at 269; Carter, 2025 WL 2161258, at *12
(“Opinion testimony that is scientifically accurate at the time of trial does not ‘create
a misleading impression of the facts’ at trial because it leads the jury to a correct
interpretation of the evidence according to the well-accepted understandings of the
scientific community at that time.” (citation omitted)).
Regardless, all three state law claims fail for the same reason: none of the posttrial developments would change the overwhelming evidence that Jenkins raped and
murdered Norris. Jenkins’s sperm was found in Norris’s dead body, a fact even more
strongly confirmed now. Yet Jenkins denied knowing Norris, and he could only have
been in Texas for a maximum of 40 hours before the murder occurred, not including
the time it took for him to drive to Texas from California. Norris was home from her
lunch break for a maximum of 30 minutes before she was raped and murdered. And
the jury could infer from the physical evidence that she was raped—blood and fecal
matter were found from her bedroom to her bathroom to around her genital and anal
area, she was naked from the waist down and strangled with scarves, and sperm from
someone other than her live-in boyfriend was found inside her.
Jenkins suggests (at 31) none of that proves rape: Norris just happened to be
in a room where “it is not uncommon for an individual’s pants to be around their
32
ankles or for blood and feces to be present in the vaginal/anal areas” when a heretoundiscovered stranger murdered (but not raped) her the day after she apparently had
consensual sex with another stranger—Jenkins. Under this counterfactual, the jury
would have to believe that Norris went home for lunch, filled her bathtub “inten[ding]
to take a bath,” id., either before or after she apparently removed her pants and
underwear in her bedroom, defecated there, then was moved (either freely or forcibly)
to the bathroom with her pants still around her ankles, where she continued to
defecate and get blood on her somehow, 13 before ultimately being strangled or
drowned to death, all while Jenkins’s semen was just coincidentally inside her.
Nothing about the post-trial scientific developments would affect the jury’s decision
that not only was Norris raped, but it was Jenkins who raped and murdered her.
Worse, had Jenkin’s absurd consent theory been presented at guilt, it would
have opened the door to his serial rapes of women he also didn’t know. See supra
Statement of the Case II. Under the doctrine of chances, “highly unusual events”—
like Jenkins’s repeated, violent sexual assaults of random women—“are unlikely to
repeat themselves inadvertently or by happenstance.” De La Paz v. State, 279 S.W.3d
336, 347 (Tex. Crim. App. 2009); see also Casey v. State, 215 S.W.3d 870, 880 (Tex.
Crim. App. 2007). That is, if Jenkins wants to argue consent, he’d have to also explain
the five other women he raped. See Ex parte Reed, 670 S.W.3d 689, 759–60 (Tex. Crim.
App. 2023) (citing Bousley v. United States, 523 U.S. 614, 623–25 (1998)). Jenkins’s
There is no evidence that Norris was menstruating when she was murdered.
It’s unclear how Jenkins explains blood in her vaginal/anal areas if she was not raped.
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trial counsel successfully avoided opening this door for a reason; Jenkins now runs
headlong into that reason. Certiorari review should be denied.
V.
The CCA’s Straightforward Application of Napue Does Not Warrant
Review.
Even if the Court could reach the merits of Jenkins’s Napue claims, there is no
basis to second guess the CCA’s decision, based on the trial court’s FFCL, that they
had no merit. First, Jenkins failed to prove falsity in all but one claim. To be sure, the
testimony that Dr. Bell was dead was false. See Pet. App’x B, at 26. But Jenkins’s
remaining complaints related to Dr. Bell, Pet. 28–29, were either not evidence at all,
see Pet. App’x B, at 26, 29, or distorted the record, see id. Similarly, Jenkin’s other
claims related to Andrus’s drug dealing, criminal history, and alibi, as well as any
link between those and Norris’s death, 14 Pet. 33–35, either distorted the record or
nitpicked at mere inconsistencies in the testimony. See Pet. App’x B, at 33–34–35,
40–41, 51; see also De La Cruz, 466 S.W.3d at 870–71 (the existence of inconsistencies
in the evidence does not, “without more,” support a finding of falsity). The jury was
not under any false impressions about Andrus’s criminal activities making him a
suspect in Norris’s murder or his alibi not being confirmed by another person. Pet.
App’x B, at 33–34, 40; see also id. at 98–99 (trial counsel didn’t probe Andrus more
The trial court rejected Jenkins’s argument, Pet. 35, that Dunn testified falsely
that Lieutenant James O’Connell was dead, as O’Connell was not mentioned during
Dunn’s testimony at all. See Pet. App’x B, at 50. The trial court also found Janet
Brightman’s forty-year-later memories related to Andrus’s alibi, Pet. 35 n.7, and
O’Connell’s disproven memories and rank speculation, id. at 35, not credible. See Pet.
App’x B, at 39, 44, 48–49. Jenkins says nothing about these credibility findings.
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because Andrus’s answers “paint[ed] [him] as a dope dealer that was not telling the
truth all the time” and “evasive in dodging the questions”).
Second, Jenkins failed to prove State knowledge. Glossip, 604 U.S. at 626. Of
course, if there was no falsity, the State could not have knowingly solicited or failed
to correct such. See, e.g., Pet. App’x B, at 34–35. Notably, the testimony regarding
Andrus’s alibi was both elicited and clarified by defense counsel; thus, there was
nothing for the State to correct. See id. at 40; Napue, 360 U.S. at 269. And as to Dr.
Bell, the trial court found the State neither knew nor should have known that he was
not dead, given their reasonable investigation of him in 1996. See Pet. App’x B, at 26–
27.
Third, even if Jenkins could prove falsity and knowledge, he wholly failed to
prove the alleged falsities were reasonably likely to have affected the judgment of the
jury. See Napue, 360 U.S. at 271. Like his state law claims, no amount of nitpicking
testimony to try to blame Andrus would’ve had any effect on Jenkins’s lack of
innocent explanation for his sperm being inside Norris’s vagina and his DNA being
on Norris’s blouse when she died. See Pet. App’x B, at 27–28, 30–31, 35–36, 41–42,
50–51. Whether Dr. Bell concluded Norris was raped, Urbanovsky (who personally
observed the crime scene) and Dr. Barnard (a certified forensic pathologist that would
have been called even if Dr. Bell, a private pathologist, was alive) each concluded the
same. 15 See id. at 24–25, 27–28. With Jenkins only in Texas for a short window and
True, Jenkins attacks these conclusions, and the conclusion that his DNA was
on Norris’s blouse, in light of post-trial developments, and he asks this Court to
cumulate those post-trial developments with his Napue claims. Pet. 36–38. He cites
Glossip as support, but Glossip’s cumulative error analysis was dicta, as the Court
15
35
Norris’s rape and murder happening within an even shorter window, none of the
alleged falsities had any effect on the jury’s determination that all signs pointed to
Jenkins being the one who raped and murdered her. Certiorari should be denied.
CONCLUSION
Jenkins fails to show that this Court has jurisdiction over the matters for
which he seeks review, or that there are otherwise compelling grounds to issue a writ
of certiorari. Consequently, the petition should be denied.
Respectfully submitted,
KELLY HIGGINS
Criminal District Attorney
Hays County, Texas
_____________________
GWENDOLYN S. VINDELL
Assistant Criminal District Attorney/
Assistant Attorney General
Texas Bar No. 24088591
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400
Gwendolyn.vindell2@oag.texas.gov
Counsel for Respondent
had already found a Napue violation. See 604 U.S. at 250–51. Moreover, the state
conceded the errors cumulated, id., which the State does not do here. And even
without the blouse or expert opinion that Norris was raped, Jenkins would not prove
materiality. See supra Reasons for Denying the Writ IV.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.