Appendix — Texas v. Brandley

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MAY 29 1980

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IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

THE STATE OF TEXAS,

Petitioner,

Vv.

CLARENCE LEE BRANDLEY,

Respondent.

On Petition For Writ Of Certiorari

To The Texas Court Of Criminal Appeals

APPENDIX A

PETER C. SPEERS, III

District Attorney

Ninth Judicial District of Texas

Montgomery County, Texas

Montgomery County Courthouse

Room 125

Conroe, Texas 77301

(409) 539-7800

A-1

APPENDIX A

Ex parte Clarence Lee Brandley, Applicant.

No. 70719.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 13, 1989.

Rehearing Denied Jan. 17, 1990.

[781 S.W.2d 886]

Before the court en banc.

OPINION

BERCHELMANN, Judge.

This is an application for writ of habeas corpus.

Tex. Code Crim. Proc. Ann. art. 11.07. Applicant was

twice tried for the capital murder of Cheryl Fergeson.

Applicant’s first trial ended in a mistrial when the jury

was unable to reach a verdict. In his second trial, appli-

cant was found guilty as indicted. On direct appeal, we

affirmed applicant’s conviction holding, among other

things, that the evidence was sufficient to support the

jury’ verdict. Brandley v. State, 691 S.W.2d 699

(Tex.Cr.App. 1985). While the record on direct appeal

supports that holding, the evidence adduced pursuant

to this application raises other constitutional issues

irrelevant to the sufficiency question.

Applicant’s petition for writ of habeas corpus

raises seven grounds, one of which alleges that the

State’s investigative procedure violated his right to due

process of law and a fundamentally fair trial. One of

A-2

the facts underpinning that assertion demonstrates

that the State failed to provide appellant’s counsel with

potentially exculpatory information in the State’s

possession that two men were witnessed near the scene

of the crime shortly after the victim was last seen alive.

Because applicant alleged claims of constitu-

tional dimension based upon controverted, previously

unresolved facts which are material to his confinement,

we ordered the trial court to hold a hearing pursuant to

this application. See Tex. Code Crim. Proc. Ann. art.

11.07, Sec. 2. In Ex parte Adams, 768 S.W.2d 281

(Tex.Cr.App. 1989), less than a year ago this Court

unanimously found that Adams’s application for writ of

habeas corpus, alleging a due process violation based

upon facts requiring an evidentiary hearing, was pro-

perly before us. This Court has long recognized the

cognizibility of due process claims in original habeas

corpus proceedings. Ex parte Bush, 166 Tex.Cr.R. 259,

313 S.W.2d 287 (1958).

The trial court held an extensive hearing pur-

suant to this application and entered findings of fact

and conclusions of law favorable to applicant. Therein

the judge presiding over the hearing concluded that

applicant was denied a fair trial and due process of

law. Commenting upon the testimony adduced at the

hearing, the trial court stated:

The litany of events graphically described

by the witnesses, some of it chilling and

shocking, leads me to the conclusion the

pervasive shadow of darkness has obscured

the light of fundamental decency and

human rights. I can only sadly state justice

has been on trial here, but of more signi-

ficance, injustice has been on trial.

A-3

Applicant alleges that the State’s pretrial

investigative procedures were "so impermissibly

suggestive of applicant that it created false testimony

calculated to manufacture circumstantial evidence

against applicant in violation of his right to due process

and a fundamentally fair trial." The trial court found

that the State failed to "conduct a proper investi-

gation," and that the investigation had a "blind focus"

which ignored leads to evidence inconsistent with the

"premature conclusion that [ajplicant] had committed

the crime." The trial court’s conclusions of law state

that the investigative procedure was "so impermissibly

suggestive that false testimony was created, thereby

denying [applicant] of due process of law and a

fundamentally fair trial."

While this Court is not bound by the findings of

a trial court in a habeas corpus proceeding, Ex parte

Bates, 640 S.W.2d 894 (Tex.Cr.App. 1982), where the

trial court’s findings are supported by the record, they

should be considered, if not accepted. Ex parte Adams,

768 S.W.2d at 288; Ex parte McCormick, 645 S.W.2d

801 (Tex.Cr.App. 1983). In Ex parte Turner, 545 S.W.2d

470 (Tex.Cr.App. 1977), we held that although this

Court has the ultimate power to decide matters of fact

in habeas proceedings, generally if the trial court’s

findings are supported by the record, they should be

accepted by this Court.1

1In his dissenting opinion to this cause, the Presiding

Judge disregards the overwhelming evidence supporting the trial

court’s findings in an impassioned attempt to reject those findings.

Instead of looking at the evidence in support of the findings, that

opinion attempts to contradict them by citing snippets of grand

jury and trial testimony, at times out of context and other times in

a less than complete fashion, in addition to offering personal

gratuitous obserations. Of course, this is not, nor has it ever been,

the appropriate standard of review of a trial court’s findings. See,

for example, Judge Duncan’s concurring opinion, infra, for a more

detailed explanation of this problem.

A-4

I.

Set forth below is a summary of the findings of

fact, entered by the judge presiding over the habeas

hearing, which are supported by the record.

Applicant was indicted, convicted and sentenced

to death for the sexual assault and murder of Cheryl

Fergeson. Fergeson’s death occurred on Saturday,

August 23, 1980, during a girls’ volleyball tournament

held at Conroe High School. The fall semester was

scheduled to begin on Monday, August 31. The author-

ities announced to the public that a suspect would be

arrested prior to the commencement of classes. Texas

Ranger Wesley Styles was called in to head the investi-

gation. Styles began his investigation on the evening of

Thursday, August 28, three days before classes were

scheduled to resume. The next day, prior to interview-

ing any witnesses, Styles arrested applicant, a janitor

of the high school. On Saturday, August 30, Styles

arranged for three other Conroe High School janitors,

Gary Acreman, Sam Martinez and John Sessum, to

meet at the high school. Styles did not interview them

separately, but instead conducted a "walk through"

wherein the janitors were walked through the sequence

of events of the day of the murder, and were questioned

in each others presence. Gary Acreman did most of the

talking at the walk through.

John Sessum testified at applicant’s first trial.

His testimony at trial was consistent with the story

_ generated by the walk through, that is, that applicant

approached the stairwell after the victim walked up the

stairs and headed into the restroom. At the evidentiary

hearing, however, Sessum admitted that he committed

perjury at applicant’s first trial and lied in his

statement to the authorities because he was in fear of

both Acreman and Styles. He testified at the hearing

that Acreman talked to the victim as she approached

the stairwell. Acreman followed her up the stairs,

talked to her at the top of the stairs, and then grabbed

the victim. Acreman was accompanied by a former

janitor of the high school, later identified as James

Dexter Robinson.2 The victim screamed, "No" and

"Don’t," and cried for help. Contrary to his prior state-

ments, Sessum testified that applicant did not arrive

until five or ten minutes after the girl was accosted.

Sessum further testified that when Acreman

drove him home the day of the murder, Acreman

warned him that if Sessum told anyone there would be

"trouble" for Sessum. Acreman repeated his warning to

Sessum prior to the “walk through." When Sessum

tried to tell Styles about Acreman, Styles threatened to

arrest Sessum if Sessum did not cooperate with the

walk through. Sessum testified that in 1987 he was

assaulted by an unknown man who was inquiring

about Sessum implicating Acreman in the death of the

victim. The trial court found Sessum’s testimony at the

evidentiary hearing credible.

Gary Acreman testified at both of applicant's

trials and the evidentiary hearing. His testimony at

2Brenda Medina, the woman with whom Robinson lived at

the time of the murder, testified at the evidentiary hearing that

the day of the murder Robinson did not return home until after

midnight. Robinson awakened Medina and stated that he had to

leave the state because he killed a girl, but that he had hidden the

girl’s body so well that no one would find her until he was out of

town. Robinson left the state early that morning, leaving behind

his blood stained tennis shoes. The record reflects that Medina

first told this information to her attorney in 1986. Medina’s

attorney informed the District Attorney’s Office of the extra jndi-

cial confession. When Medina’s attorney learned that the District

Attorney’s office failed to inform defense counsel of this infor-

mation, he notified defense counsel about Robinson’s confession.

trial was consistent with the story generated by the

walk through; viz: the victim walked up the stairs and

toward the restroom, followed shortly thereafter by

applicant. At the hearing, applicant entered into

evidence two videotaped statements made by Acreman

in which Acreman proclaimed applicant’s innocence

and stated that James Dexter Robinson followed the

victim up the stairs, Acreman heard the girl yell, "No,"

and Acreman saw Robinson grab the girl and drag her

into the restroom as she screamed for help. In the

videotaped statements, Acreman stated that Robinson

threatened him into lying about the murder. Acreman

repeated again and again on the videotaped statements

that applicant had nothing to do with the murder and

that applicant was “being railroaded."

At the hearing, Acreman recanted the state-

ments on the videotapes. After much vacillation,

Acreman admitted that Robinson was, in fact, at the

school that day. Acreman admitted that the statements

generated by the walk through were incorrect in that

they failed to acknowledge that Acreman spoke to the

victim shortly before her death. Acreman claimed that

the conversation completely slipped his mind until the

evidentiary hearing held seven years after the murder.

Acreman testified to a new found memory that he left

the other janitors after speaking with the victim,

despite his trial testimony that he, Sessum and

Martinez were together when the girl was murdered.

The third janitor attending the walk through

was Sam Martinez.. Prior to the walk through,

Martinez gave a statement with a differing version of

events of the day of the murder. Two days after the

murder, Martinez gave a statement that the victim

walked up a stairwell and headed towards the restroom

after applicant had come up the stairs. After Styles’

walk through, Martinez changed his story to coincide

A-7

with walk through version of events; that is, applicant

approached the stairwell after the victim walked up the

stairs and headed into the restroom. Martinez

explained the inconsistencies between the two

statements by stating that the walk through "helped

me a whole lot." At the evidentiary hearing, Martinez

changed the story produced by the walk through by

stating that the victim asked the janitors where the

restroom was located and that Acreman spoke to the

victim. Prior to the evidentiary hearing, Martinez, who

gave two statements to the police and testified at both

of applicant’s trials, never admitted this conversation

took place. Martinez also changed the walk through

version of events to which he testified at applicant’s

trials by stating that Acreman spent approximately

thirty minutes away from Martinez and Sessum

shortly after the victim went into the restroom.

Sessum, Acreman and Martinez signed written

statements following the walk through, but Styles did

not supervise the taking of the statements. Styles

testified that he had no idea whether the statements

were accurate, and could offer no explanation why

Sessum’s statement was not signed until one month

after the walk through. The trial court noted that the

three written statements taken immediately following

the walk through were consistent as to the critical

sequence of events and the critical time frames.

Henry Martin Peace, the janitor who discovered

the victim, testified on behalf of the State at both of

applicant’s trials. Peace circumstantially implicated

applicant by stating that applicant repeatedly ordered

Peace to search the loft where the girl’s body was

found, until Peace ultimately discovered the victim.

At the hearing Peace stated that Styles arrived

at Peace’s home one night and forced Peace against the

wall, choking Peace by twisting the chain Peace wore

around his neck. Peace, a man the trial court noted as

being under five foot tall, was taken to the Cleveland

Police Station until 1:30 in the morning. In route,

Styles threatened to "blow" Peace’s brains out. When

Peace complained of Styles’ treatment to the District

Attorney’s Office, Peace was told that the office would

"take care of it." Later the members of the District

Attorney’s Office told Peace he was "hallucinating" that

Styles had manhandled him. Peace testified that he

continues to fear Styles.

Peace was not allowed to leave the police station

until he signed a written statement, despite his

inability to read or write. Peace asked that a family

member be permitted to read the statement to him

before he signed it, but the police denied Peace’s

request. On another occasion, Peace was told by a

police officer that Peace was too small to have

committed the sexual assault and murder, but that

"the nigger" [referring to applicant] was big enough to

have committed the crime; therefore, “the nigger was

elected.”

The trial court found that the murder investiga-

tion was so contrived that it created false testimony

and that the investigation failed to follow any leads

which did not comport with the preconceived, pre-

mature notion that applicant committed the murder.

Styles admitted at the evidentiary hearing that before

he arrived in Conroe and prior to interviewing any wit-

nesses, applicant was his only suspect. Styles main-

tained this blind focus despite the fact that a Cau-

casian pubic hair, not belonging to the victim, was

found near the victim’s vagina. The State resisted all

efforts to obtain hair samples for comparison from the

three janitors who saw the victim moments before the

A-9

assault.3 When pressed for a reason why he did not

want to obtain a hair sample from Acreman to compare

with the Caucasian pubic hair found near the victim’s

vagina, Styles testified at the evidentiary hearing,

"Let’s say I didn’t do it and it wasn’t done, and why it

wasn’t done, I don’t know."

Additionally, the State resisted all attempts to

obtain blood samples from Acreman, Martinez and

Sessum despite finding blood inconsistent with

applicant’s blood type on the victim’s shirt. Type A

blood was found on the shirt, and although the victim

had Type A blood, there were no lacerations to any part

of her body, indicating that the blood may have

originated from the perpetrator. Applicant has Type O

blood. Not until years after the murder, when the

Texas Attorney General’s Office began to investigate

the validity of applicant’s conviction, did the State

finally obtain samples of blood from Acreman and

Robinson. Both men have Type A blood.

Moreover, after the autopsy discovered the

existence of semen in the victim’s vagina, the State

failed to run an analysis of the sample to determine the

blood type of the donor. Dr. Joseph Jachimczyck, now

3It would be futile to obtain samples for comparison today,

for the exhibit containing the Caucasian hair became missing

while the record was being prepared for direct appeal.

4The blood samples finally obtained from Acreman and

Robinson cannot be compared with the blood found on the victim’s

shirt because the blood stained shirt also became missing when

the record was being prepared for direct appeal.

Notwithstanding the Presiding Judge’s assertion to the

contrary in his dissenting opinion, these facts regarding the bloody

clothing are uncontradicted by the record and the parties in this

cause.

4-10

the Harris County Medical Examiner, testified at the

evidentiary hearing that his office did not test for the

blood type of the donor, and that he did not know

whether the samples were given to the Conroe Police

Department. A detective from the Sex Crimes Unit of

the Homicide Division of the Houston Police

Department testified at the hearing that it was

standard police procedure in 1980 to preserve the

vaginal swabs taken in sexual assault investigations,

and that there is no justification to discard the swabs

because they can scientifically exclude suspects based

on blood typing, Rh factor and other genetic

characteristics of the donor of the spermatozoa.

Likewise, the State failed to investigate a lead

from Cheryl Bradford, a volleyball participant.

Bradford testified at the evidentiary hearing that the

day of the murder, she passed the victim in the hallway

as Bradford returned from the restroom. Bradford

thereafter proceeded to the gymnasium and began

warming up for the game. Twenty to thirty minutes

after last seeing the victim alive, Bradford observed

two white men rushing through the gymnasium. She

recalled seeing the men because there were no males

attending the volleyball tournament. Her descriptions

of the two men matched the height, weight, and hair

color characteristics of the pair now accused by Sessum

as having committed the murder, Gary Acreman and

James Dexter Robinson.® After the victim’s body was

discovered, Bradford told her volleyball coach about the

men. Bradford and her coach contacted the Conroe

5Bradford’s statements undermine the State’s theory of

the case that applicant was the only janitor whose presence was

unaccounted for at the time of, and following, the murder. Addi-

tionally, this information conflicts with the now recanted trial

testimony of Acreman, Martinez and Sessum that they were exclu-

sively in each other’s company after the girl entered the restroom.

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Police Department with the lead, but the police “were

not real interested in [her] information and were in a

rush to get [her] off the phone.” The police never

contacted Bradford for further information, nor did any

government agency ever inform defense counsel of the

incident. Eight years after the murder, Bradford saw a

televised program questioning the validity of

applicant’s conviction. She got "chills" when she saw a

televised picture of James Dexter Robinson, although

unable to identify Robinson as one of the men she saw

rushing through the auditorium. She subsequently

recontacted the authorities about witnessing the men.

Trial counsel for applicant were never informed about

this information.

Styles also failed to investigate a lead given by

Peace after Styles conducted the walk through with the

other janitors. Peace informed Styles that the day of

the murder Acreman re-entered the high school alone

and stated that applicant was "having fun with a good

looking girl.” Despite the prospect that either Acreman

may have witnessed the offense or a related act, or that

Acreman may have floated a false story about

applicant, Styles never asked Acreman about the

meaning of the statement. Regarding his failure to

investigate the statement, Styles testified, "I might’ve

should have asked [Acreman], but I didn’t." He also

stated that he did not investigate the statement

because it was “hearsay.”

Il.

Where the State’s investigative procedure is so

improper, it may result in a denial of an accused’s

rights to due process of law. Foster v. California, 394

A-12

U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969);

Dispensa v. Lynaugh, 847 F.2d 211, 218 (5th Cir. 1988).

In Foster, the Supreme Court held that where the State

orchestrated an identification procedure "so unneces-

sarily suggestive and conducive to irreparable

mistaken identification" of an accused, the State’s

conduct may amount to a denial of due process, judged

by the totality of the circumstances. Id., 394 U.S. at

442, 89 S.Ct. at 1128, citing and quoting Stovall v.

Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18

L.Ed.2d 1199 (1967).

Although Foster involves impermissible State

conduct in an identification procedure, the Due Process

Clause of the Fourteenth Amendment is not limited to

the State’s action in that narrow context. For example,

due process is not satisfied where the State contrives a

conviction "through the pretense of a trial which in

truth is but used as a means of depriving a defendant

of liberty." Mooney v. Holohan, 294 U.S. 103, 112, 55

S.Ct. 340, 342, 79 L.Ed. 791 (1935) (State’s use of

perjured testimony). Nor is due process satisfied where

the State fails to correct unsolicited perjury. Napue uv.

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3

L.Ed.2d 1217 (1959), nor where the State suppresses

evidence favorable to the accused. Brady v. Maryland,

373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215

(1963). Likewise, where the State’s conviction is based

in part upon the introduction of a coerced confession, a

defendant’s right to due process is violated, Rogers v.

Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5

L.Ed.2d 760 (1961), and where the State conceals a

material witness whose testimony is shown to create a

reasonable doubt of guilt that did not otherwise exist,

there is also a deprivation of due process. Hernandez v.

Estelle, 674 F.2d 313 (5th Cir. 1981).

A-13

Although our review of the record supports the

trial court’s finding that the State’s investigation was

flawed, we must now determine whether these facts

support the trial court’s conclusion of law that the

investigation lead to a denial of applicant’s right to due

process and fundamental fairness. We look to the

"totality of the circumstances" to make _ that

determination. Ex parte Adams, 768 S.W.2d at 293;

Foster, 394 US. at 442, 89 S.Ct. at 1128.

We note at the outset, as we did on direct appeal,

that applicant’s conviction is based entirely on

circumstantial evidence. Brandley, 691 S.W.2d at 701.

State misconduct is more likely to affect the outcome of

the trial based upon circumstantial evidence than one

in which there is direct evidence, untainted by State

misconduct, linking a defendant to the crime.¢

The State’s suppression of Bradford’s informa-

tion that she saw a man meeting Acreman’s description

near the scene of the crime shortly after the victim was

attacked undermines Acreman’s now recanted testi-

mony that he was in a different building with the other

janitors at the time in question. At the very least, it es-

tablishes that men other than applicant were near the

scene of the crime shortly after the victim was last seen

alive. Given Bradford’s hearing testimony that she saw

no men attending the volleyball tournament at the

time in question, this information becomes more signif-

icant by establishing other suspects, if not impeaching

6For example, where a defendant alleges a due process

violation based upon the State’s failure to inform him of

potentially exculpatory evidence, the "materiality" requirement

focuses upon whether the suppressed evidence might have affected

the outcome of the trial. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,

2398, 49 L.Ed.2d 342 (1976). See also U.S. v. Bagley, 473 U.S. 667,

105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

A-14

Acreman’s testimony regarding his whereabouts.7

A review of applicant’s pleadings reflects that

applicant, albeit inartfully, alleges that this evidence

supports a due process claim under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 which

prohibits State suppression of “evidence favorable to an

accused ... where the evidence is material either to

guilt or to the punishment, irrespective of the good

faith or bad faith of the prosecution," Id., at 87, 83 S.Ct.

at 1196. In United States v. Bagley, 473 U.S. 667, 105

S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court

held that the due process requirements addressed in

Brady, supra, applied to the suppression of impeach-

ment evidence, and where such evidence was sup-

pressed, a new trial must be granted where the confid-

ence in the outcome of the trial is undermined. Bagley,

at 683, 105 S.Ct. at 3383. To require reversal pursuant

to a Brady claim, however, the State’s suppression of

evidence must be considered material. Evidence is

considered material where there is a reasonable

7The State urges that the District Attorney’s Office was

not aware of Bradford’s statements to the police. However, in de-

terming a due process violation we have declined in the past to

distinguish different agencies under the same government, focus-

ing instead upon the prosecuting team, which includes both inves-

tigative and prosecutorial personnel. Ex parte Adams, 768 S.W.2d

at 292, citing U.S. v. Antone, 603 F.2d 566, 569 (5th Cir. 1979).

Additionally, any suggestion by the Presiding Judge in his

dissenting opinion that Bradford’s testimony at the hearing is

unworthy of belief or is immaterial because it is "unsubstantiated"

simply begs the question. Ex parte Brandley, 781 S.W.2d at 904

(McCormick, P.J. dissenting). Moreover, to imply that her

testimony is irrelevant because a police officer testified at trial

that there were men at the tournament is factually misleading.

Bradford’s testimony regarding seeing no other men concerns the

time frame in which the victim disappeared. The police officer's

testimony relates to a time frame hours later.

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probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. Bagley, at 682, 105 S.Ct. at 3383 (1985).

In United States v. Agurs, 427 U.S. 97, 96 S.Ct.

2392, 49 L.Ed.2d 342 (1976), the Supreme Court

addressed the materiality requirement:

It necessarily follows that if the omitted

evidence creates a reasonable doubt that

did not otherwise exist, constitutional error

has been committed. This means that the

omission must be evaluated in the context

of the entire record. If there is no reason-

able doubt about guilt whether or not the

additional evidence is considered, there is

no justification for a new trial. On the other

hand, if the verdict is already of question-

able validity, additional evidence of

relatively minor importance might be

sufficient to create a reasonable doubt.

Id., at 112-113, 96 S.Ct. at 2402 (footnote omitted).

In Bagley, 473 U.S. at 683, 105 S.Ct. at 3384, the

Supreme Court instructed appellate courts to make the

materiality determination "in light of the totality of the

circumstances and with an awareness of the difficulty

of reconstructing in a post-trial proceeding the course

that the defense and the trial would have taken had

the defense [been given access to the suppressed evi-

dence]." Whether Bradford’s statements to the police

are analyzed pursuant to applicant’s broader due

process claim based upon the entire investigation, or

regarding applicant’s more specific due process claim

under Brady, we are compelled to look further and

consider the totality of the circumstances of the trial.

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Additionally, applicant submits that the "walk

through" of Acreman, Sessum and Martinez contrib-

uted to a due process violation by creating false testi-

mony. The trial court found that the walk through

served as a means of intimidating Sessum into follow-

ing the story generated by the walk through, for

Sessum was threatened with arrest when he attempted

to inform the authorities about Acreman’s involvement

in the murder. The walk through undoubtedly injected

false testimony into applicant’s first trial, for Sessum

admitted that he committed perjury at applicant’s first

trial. However, Sessum did not testify at applicant’s

second trial. Acreman and Martinez did testify at the

second trial, adhering to the walk through story. Both

Acreman and Martinez acknowledged at the eviden-

tiary hearing that the walk through story is incom-

plete, in that Acreman did, in fact, speak with the vic-

tim shortly before she was murdered. The habeas judge

found Martinez’s and Acreman’s explanations that they

forgot Acreman’s conversation with the girl, until seven

years after the murder, are unworthy of belief.

Both men also recanted the walk through story

and professed a new found memory at the evidentiary

hearing by testifying that Acreman was not with

Martinez and Sessum for a thirty minute interval after

Acreman spoke with the victim. The harm resulting

from the walk through story that Acreman was with

the other janitors when the victim was abducted is

underscored by this Court’s treatment of the evidence

on direct appeal. We found the evidence sufficient to

support applicant’s conviction holding that there were

no reasonable hypotheses other than applicant’s guilt,

based in part upon the fact that the whereabouts of

Acreman, Sessum and Martinez were accounted for at

the time of the murder. Brandley, 691 S.W.2d at 704.

A-17

Additionally, Styles’ manhandling and threats to

kill the diminutive Peace, the State’s star witness,

taints the reliability of Peace’s trial testimony. The psy-

chological pressure exerted on Peace to circumstantial-

ly implicate applicant would potentially undermine the

fact finder’s confidence in the product of such coercion.®

8Although acknowledging Peace’s repeated perjury on col-

lateral issues, the dissenting opinion surmises that the investi-

gative procedure "did not produce any unreliable testimony” from

Peace. Ex parte Brandley, 781 S.W.2d 904 (Campbell, J. dissent-

ing). The record contradicts this bold assertion. Peace’s hearing

testimony conflicts with his trial testimony regarding Styles’

mistreatment. At trial, Peace testified as follows:

Q. (Defense -Counsel] Did Ranger Styles

influence you in any way on your testimony

in this case?

A. [Peace] No, Sir. Nobody has.

ese e22¢8

Q. Wesley Styles--was he good to you? Treat

you fair?

A. He didn’t mistreat me. No, Sir.

Peace’s hearing testimony recounts abusive treatment

which, according to Peace, was reported to the District Attorney’s

Office. Notwithstanding the District Attorney's knowledge of

Styles’ mistreatment of Peace, the State failed to correct Peace’s

false testimony adduced at trial. This evidence alone arguably

supports yet another due process violation: The State’s use of

perjured testimony. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173,

3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103,

2 L.Ed.2d 9 (1957). See also Ex parte Adams, 768 S.W.2d 281.

Moreover, Peace acknowledged at trial that the statement the

police prepared for Peace, and signed by Peace despite his inability

to read or write, is riddled with inconsistencies. He testified to five

separate false statements in the document.

(Footnote continued on next page)

A-18

The State’s refusal to obtain hair and blood

samples from the three janitors who saw the victim

enter the restroom creates problems of a different type.

Despite evidence that a Caucasian hair, not belonging

to the victim, was found on her, and despite the evid-

ence that blood inconsistent with applicant’s blood type

was found on the victim’s shirt, the State resisted

efforts to obtain samples from Acreman, Martinez and

Sessum. Because these pieces of evidence were lost in

Montgomery County while the record was being

prepared for direct appeal, no tests can now be

performed on these items.

Absent a showing of bad faith on the part of the

police, failure to preserve potentially useful evidence

does not, in and of itself, result in the denial of due

process of law. Arizona v. Youngblood, __ U.S. __,

109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). However, in

the case at bar, the State’s apparent refusal to perform

certain scientific tests on the physical evidence at hand

resulted in a lack of direct evidence in this case. This

lack of direct evidence buttresses applican‘’s claim that

the error resulting from the State’s other improper

conduct affected the outcome of his trial.

Although any of these incidences alone might not

support applicant’s claim, there can be no doubt that

the cumulative effect of the investigative procedure,

judged by the totality of the circumstances, resulted in

a deprivation of applicant’s right to due process of law

by suppressing evidence favorable to the accused, and

by creating false testimony and inherently unreliable

(Footnote continued from previous page)

Lastly, Peace also acknowledged committing perjury at

applicant’s first trial regarding Peace’s display of a pistol at the

high school prior to the date of the murder. Simply put, the

dissenting opinion’s implication that Peace’s statements have been

consistent is simply not supported by the record.

A-19

testimony.® Accordingly, applicant’s conviction must be

reversed.

Due process of law is the cornerstone of a civil-

ized system of justice. Our society wins not only when

the guilty are convicted but when criminal trials are

fair; our system of justice suffers when an accused is

treated unfairly. Brady, 378 U.S. at 87, 83 S.Ct. at

1197. The State’s investigative procedure produced a

trial lacking the rudiments of fairness. The principles

of due process, embodied within the United States

Constitution, must not, indeed cannot, countenance

such blatant unfairness.

The violent end to Cheryl Fergeson’s young life

is both senseless and tragic. The end of a life so full of

promise is a loss not only to her loved-ones, but also to

our society as a whole. Our outrage over her murder,

however, cannot justify the subversion of justice that

took place during the investigation, which ultimately

affected the trial of her accused perpetrator.

We therefore set aside applicant’s conviction,

and order applicant released to the Sheriff of

Montgomery County to answer the indictment upon

which applicant was convicted.

WHITE, J., concurs in the result.

DUNCAN, Judge, concurring.

I join the majority opinion; however, I write

separately only to comment briefly upon the dissenting

opinions. In fiscal year 1987-1988 (September 1, 1987

9We hold that the error attendant to this case would not

prevent the readmission of evidence upon retrial, assuming, of

course, that the procedural prerequisites to its admission are met.

A-20

to August 31, 1988), this Court denied or dismissed

2,259 post-conviction applications for writs of habeas

corpus. See Texas Judicial System: 60th Annual Report

(Office of Court Administration: Austin, 1988), p. 168.

These sheer numbers, if nothing else, emphasize the

commitment of this Court to respect the objective and,

under certain circumstances, subjective findings made

by the trial court in a post-conviction habeas corpus

hearing. Ten months ago, in Ex parte Adams, 768

S.W.2d 281 (Tex.Cr.App. 1989), this Court

unanimously quoted with approval the language of Ex

parte Moore, 126 S.W.2d 27 (Tex.Cr.App. 1939). In

Moore the Court stated:

Where the ruling of the trial judge depends

upon the existence or non-existence of a

certain fact and testimony pro and con is

introduced thereon and the evidence is

conflicting it becomes the duty of the trial

judge to determine the issue, and unless it

appears to this court that his finding was

without support in the evidence, and that

he had committed an error in his judgment

thereon, we would not interfere with his

findings thereon. Id., 126 S.W.2d at 28.

The cases are absolutely legion, and I do not use

that word loosely, to support the foregoing proposition.

That is as it should be. This Court should not get into

the position of having to make credibility judgments

every time there is conflicting testimony. This case is

really very simple: this Court initially found that there

was a legitimate constitutional issue raised regarding a

claimed deprivation of due process and ordered a

hearing to be conducted; the hearing was held; Judge

Pickett made findings of fact and conclusions of law

recommending relief be granted; the findings of fact are

A-21

supported by the record and the conclusions of law are

not erroneous. Therefore, they should be accepted.

We must take the record as we find it. Accord-

ingly, we cannot add facts, assume facts, disregard

facts, or accord certain facts greater or lesser signifi-

cance. That is simply not our function. There is no

question that the abundance of material presented

with this case makes our task extremely difficult. That

is why the trial judge is accorded the deference to make

findings of fact. All that we should do is determine

whether they are supported by the record. That is all. I

have read every page of the writ hearing and although

I may not have made the same findings of fact or con-

clusions of law as Judge Pickett, I do find that they are

supported by the record. Consequently, unless we are

willing to overrule all of the cases: to the contrary or

conjure up a way to deceptively distinguish them we

actually have no choice but to accept the findings and

conclusions that have support in the record.

Judge Campbell, in his dissenting opinion, also

takes issue with the specific ground upon which relief

is granted and claims that it is actually newly

discovered evidence “wrap[ped] ... in the more

attractive cloak of due process ..." Dissenting Opinion,

slip op. p. 898. To continue the metaphor: whether the

issue is clothed or wrapped in due process is irrelevant.

I agree that this Court should not be the repository of

every complaint that can be made relative to a claim of

newly discovered evidence. But, in the context of this

case, when fundamental liberties have been deprived

then the newly discovered evidence is the equivalent of

a due process violation. And, Judge Campbell's

conclusion implicitly concedes that a due process right

was implicated. He dismisses it on the basis that he

would not have made the same findings as Judge

Pickett. As I stated previously, I might not have either,

but that is not the issue. Judge Pickett’s findings are

supported by the record. Thus, they should be accepted.

The majority opinion recognizes this. That is

why I have joined the opinion.

MILLER, J., joins.

McCORMICK, Presiding Judge, dissenting.

I join Judge Campbell’s Dissenting Opinion and

reiterate that even if every finding by the habeas court

is taken as true, there is no legal precedent upon which

the majority can grant the relief it does. The records

before this Court of applicant’s two trials and two

habeas hearings totally belie the habeas court's find-

ings of fact. The only “blind focus" which has occurred

in the hisvory of this cause comes today with an opinion

that so manipulates the law and the facts as to do

irreparable harm to the future of Article 11.07,

V.A.C.C.P.

I write merely to point out a few of the many

glaring factual errors made in the majority opinion.

Although the findings of the habeas court, if taken as

factual, may raise the specter that another or others

may have been involved with applicant in the

commission of this murder, there is absolutely no

evidence which remotely tends to exculpate applicant

or to show that he is not guilty.

A-23

In finding that applicant is entitled to habeas

corpus relief in this case, the majority has relied

extensively upon the habeas court’s findings of fact.

The habeas judge: has concluded, and the majority

agrees, that the State has violated applicant’s due

process rights because "the investigative procedure was

so impermissibly suggestive that false testimony was

created." Although neither the habeas court nor the

majority has cited relevant authority, both rest their

conclusions on “the facts underpinning” the habeas

court’s conclusions. Significant findings by the habeas

court, however, either are not supported by the record,

are clearly erroneous, or are the result of testimony

taken out of context. Almost all findings by the habeas

court judge that are utilized by the majority are

inaccurate in some form.

The majority begins its recitation of the facts re-

lating to the investigation of the murder by stating that

Texas Ranger Wesley Styles was called in to head the

investigation and that he immediately arrested appli-

cant. This is not supported by the record and is the first

of many absolutely distorted and biased reporting of

the record. The District Attorney of Montgomery

County, James Keeshan, called Styles to aid in the pro-

secution after the Conroe Police Department had al-

ready developed evidence relating to the murder.

Among the facts known to the Conroe Police and Styles

before the arrest of applicant were: Cheryl Fergeson

was a member of a girl’s volleyball team that had come

to Conroe High School at around nine o’clock on Satur-

day morning, August 23, 1980, to participate in a tour-

1Neither of the trial court judges that sat during appli-

cant’s trials participated in the hering which resulted in the find-

ings of fact upon which the majority rests its decision. A reading of

all the records of applicant’s trials and hearings demonstrates the

total failure of the habeas judge to review these records.

A-24

nament. For some reason or another, Cheryl had left

the gym area where the other girls had begun to warm

up for their matches. When Cheryl did not return the

other girls began to search the school grounds.

Written, sworn statements were taken from ap-

plicant and three other Conroe High School janitors

(Sam Martinez, Gary Acreman and Henry Peace) be-

fore applicant’s arrest and before Styles’s involvement.

These initial statements are all consistent regarding

the following: On Saturday morning, August 23, 1980,

four janitors along with applicant, their supervisor,

were preparing the school for various activities.

Applicant had directed the janitors to set up chairs in

the school cafeteria. The janitwrs finished their jobs.

While looking for applicant to see if anything else

needed to be done, they saw a girl go into the restroom.

After the girl entered the restroom, applicant arrived

with toilet paper. One of the janitors told applicant

that a girl was in the restroom. Applicant told the

janitors to go across the street to the vocational build-

ing. The janitors did so and waited there for applicant

to come open the doors. Applicant, however, never

came over to the building. About forty-five minutes

later, applicant called across the street to one of the

janitors to come and get the keys to the doors. The

janitors completed their tasks in the building and were

told by applicant to go home. Peace remained to help

applicant lock the cafeteria doors. While doing so,

applicant and Peace ran into the volleyball players

looking for Cheryl. Applicant decided to look for the

girl. He and Peace found the door to the auditorium to

be unlocked; they checked inside. Applicant told Peace

to look in the balcony behind the stage area "because

some of the kids would get behind the boards and

hide." (Applicant’s Statement.) Peace discovered

Cheryl’s body behind a sheet of plywood.

A-25

The murder occurred on August 23, 1980. The

District Attorney's Office, requested Styles’s assistance

in the investigation on August 28, 1980, and Styles

began work on the case the next day. When Styles

arrested applicant he was armed with information by

the Conroe Police Department along with an arrest

warrant supported by the following affidavit:

Affiant, an officer with the Conroe Police

Department (CPD) investigated the above

offense along with other CPD officers. The

victim, a 16 year old white female was

found naked and strangled in a loft area

above the auditorium stage in the main

building at the Conroe High School. She

had been missing for about two hours when

her body was found. The victim had been at

the school for a short time to attend a

volleyball tournament being held in a gym

near the main building. CPD officers found

her clothing two days later in a plastic bag

identical to those used by school personnel.

Affiant and other CPD officers interviewed

and took statements from tournament

participants and from all custodians on

duty on the morning of August 23, 1980

when the crime occurred. Based on the

location of the body, the disposal of the

clothing and the fact that auditorium and

other doors in the main building were

normally locked on Saturday (as this was),

it appeared that the offense was probably

committed by an employee of the school.

Affiant has probable cause to believe and

does believe that the offense was committed

by Clarence Brandley, a black male, for the

following reasons:

A-26

1. Brandley was arrested by CPD

officers for committing an attempted

rape and abduction on 3/7/79 according

to CPD offense reports.

2. Said Brandley is presently on felony

probation for possession of a prohibited

weapon.

3. Said Brandley, according to four other

custodians, was the only _ school

employee in or around the main building

who had keys to the auditorium,

storerooms and other doors in the

building at the time of the offense.

4. According to the other custodians,

Brandleys whereabouts are unac-

counted for during a 45-minute period at

about the same time as that of the

victim’s disappearance.

5. A pubic hair found on the victim’s

body has been determined by the

Department of Public Safety Lab in

Austin, Texas, to be that of a black male,

and appears identical to pubic hairs

removed from said Brandley’s person.

6. Said Brandley is the only custodian or

employee who was on duty at the loca-

tion who is a black male.

7. A Houston Police Department Poly-

graph Supervisor advised Captain

Monty Koerner that said Brandley had

failed a polygraph test administered to

him on August 25, 1980, in connection

with the offense.

A-27

The majority's statement that Styles arrested applicant

with the “preconceived, premature notion that

applicant had committed the murder," ignores that

Styles had the written statements of essential

witnesses before him and arrested applicant under

judicial authority. Any implication made by the

majority that Styles investigated the murder offense

without resort to relevant information in an effort to

convict applicant is not supported by the record and

should be rejected.

The majority opinion also attempts to discredit

the walk-through that Styles conducted with three of

the janitors. The majority writes that the walk-through

"generated" stories. The majority therefore holds that

because one of the janitors, John Sessums, is now

implicating Gary Acreman nine years after the murder,

this leads to the conclusion that the walk-through

“created false testimony.”

The majority is wrong. First, as Judge Campbell

p.ints out in his dissent, John Sessums did not testify

at applicant’s trial.2 It is, therefore, impossible that

anything he now asserts as being true created false

testimony on his part at trial. It is outstanding that the

2Sessums’s testimony at the first of applicant’s two trials

and at the first writ hearing was consistent to that of his initial

statements to police. Keeshan testified at the second writ hearing,

however, that he did not use Sessums as a witness at the second

trial because at applicant’s first trial (which resulted in a mistrial

when the jurors were unable to agree on punishment) Sessums

became “confused” on cross-examination and would “testify in

every direction.” Apparently defense counsel concurred in the

District Attorney's assessment of Sesseums as a witness. The trial

record makes it abundantly clear that Sessums was presented to

defense counsel to call on applicant’s behalf but that applicant

declined to do so. It is ironic that the majority now accepts

Sessums’s second writ testimony as credible but turns its back on

all former testimony.

A-28

majority is willing to place faith in Sessums’s writ

hearing testimony when, even before the walk-through,

Sessums gave the following sworn statement to police:

I came to the school about 8:00 A.M., I rode

to work with Gary in his Datsun Pickup,

orange and white color. We park in front of

the vocational building. We walked over to

the main building, the doors were all locked

and we waited for Clarence. We waited

about 10 or 15 minutes. Sammie came up

after we got there and was also waiting.

Clarence came down the sidewalk and

opened the door. There was another subject

Eckie a short stockey guy, he also came up

about the time as we did. All five (5) of us

then went to the cafeteria and Clarence

showed us where to set up the tables and

chairs. It took about a hour and a half to set |

up the chairs. When we finished we walked

out in the hall to the front of the building.

We waited 10 or 15 minutes. There were a

couple of people standing in the hall around

the end where the gym is. When Clarence

came up a girl was coming up behind. We

kidded him about watching out, there is a

pretty girl coming up behind him. She had

blond shoulder length hair, about 5’ tall,

she had blue jeans and a pullover sweater

on. Clarence told us what we had to do and

where to go. The four (4) of us then went to

the annex to set up chairs. Clarence said he

had something to so and stayed behind. We

set at the annex about five (5) minutes,

then Eckie went back and got the key from

Clarence. When he got back we set up the

tables and chairs. We finished if and it was

around 10:30 or 11:00 A.M. Clarence came

A-29

over and told us it looked good and we could

go home. That is when Gary and I left, I do

not know when Clarence and the other two

left."

[Sic throughout.]

Nowhere, in this statement does Sessums say that he

heard a girl scream "no" and "don’t"; nowhere in the

statement is there any indication that another person

other than the janitors may be involved; and nowhere

in the statement is there any indication that Acreman

is involved, yet these events, if true, would be highly

significant. Regardless of how the walk-through was

conducted, it would be impossible for it to have

generated such blatant inconsistencies.

Moreover, the majority fails to consider that

none of the other janitors who gave written statements

to the police prior to Styles’s involvement implicated

Acreman, yet if Sessums’s story were true, the events

that he now says happened would have taken place

when all janitors -- including applicant who did not

participate in the walk-through -- were together. It is

surprising that the majority has failed in its rendition

of the facts to include applicant’s testimony, but

applicant, accompanied by his lawyer, testified during

the grand iury proceedings as follows:

"Q. Why were you going to put [toilet

- paperjinto the boy’s restroom, had

you already checked the other one?

"A. No.I-- there was a lady had already

went up there -- she took the paper

up there. She came back and I was

on my way back.... That’s when I met

all of them. They were standing....

A-30

[Questions and Responses regarding the

girl who took toilet paper into the restroom]

"Q. How did you come to talk to her?

"A. She was standing in the hallway

when I asked the coach about [the

toilet paper] and I asked her would

she run up and check that one and

then I left and went back up and this

is when Ackerman, Sam, Henry

Peace and John was all standing. I

told them, "“let’s go across the street"

and I sent them over across the

street and I said Ill be right over."

When asked if he had seen any other person in the

main building around the cafeteria, applicant respond-

ed that he saw a young man and lady. Applicant also

testified that he saw no other black males in the build-

ing that day, no school personnel and no other custo-

dian. Asked if he had seen anyone else, applicant testi-

fied, "Nobody else.” Thus, even applicant did not impli-

cate Acreman or anyone else in either his affidavit to

police or in his testimony before the grand jury. More-

over, and what the majority has conveniently ignored,

applicant, himself, exculpates the other janitors at the

school on the day of the murder. The following colloquy

occurred during the grand jury testimony:

"Q. You don’t believe any of the other

custodians did it?

"A. Not after the experience I’ve had

with them. They don’t seem to be the

type of person that would do it.

"A.

In addition to his grand jury testimony, appli-

cant executed an affidavit on August 23, 1980, con-

cerning the events that occurred on the day of the

murder. The events as outlined by applicant fail to sup-

port even remotely Sessums’s account of the events.

A-31

Would they have had the opportunity

to do something like that?

No.

You didn’t know of an opportunity

that they would have had to do it?

No, sir."

8Applicant’s sworn statement to police is as follows:

Beverly Dupre brought me to work a 7:40

A.M., Ackerman, Sam, John and Henry

Peace were already at the school when I

arrived. I opened the doors and let them into

the cafeteria, and then I showed them what I

wanted them to do. I then went into the gym

to unlock the doors and take out the trash,

then I left the alan wrench with the coach in

charge of volleyball team so she could lock

doors. Then I went to the Shamrock Station

and bought me some cigarettes. Then I came

back to the girls gym and asked the coach if

the bathrooms have paper and then I left

and went back to the front of the building. I

sat down and waited for the guys to finish

cleaning the cafeteria. When they finished

with the cafeteria, I sent all of them to the

vocational building across the street to set

up 85 chairs for Monday andI went to put

toilet paper in the restrooms. Then I went

across the street and the guys finished

putting up the chairs. I then told John,

Ackerman, and Sam that they could go home

(Footnote continued on next poge)

Therefore, if we accept the majority’s conclusions that

the walk-through generated false testimony we must

also accept that the other janitors, including applicant,

gave false statements in their initial reports to the

police and that applicant lied in the grand jury

proceedings. It is far more likely that the passing of

nine years is responsible for changes in Sessums’s

account of the incidents at the school, not the

investigative procedures utilized by Styles. Indeed,

Sessums testified at a prior writ hearing on August 18,

1986. At that time the only significant change in his

account of the events was that he saw Acreman talk to

a girl as she entered the restroom. None of the events

that he now claims to have happened are included in

(Footnote continued from previous page)

and Henry and I went back to the main

building to lock up cafeteria. We heard some

girls calling for someone and they told us

that one of the girls was missing and they

were looking for her. I told Henry that we

needed to check all doors and make sure

they were locked. Henry and I started check-

ing the doors and it was then we discovered

that the auditorium door was open. We went

inside the auditorium and started looking

around. Then we discovered that the back

door of the auditorium was open. We went

on to the stage and cut the lights on su we

could see. I then told Henry to look up

around the stage because sometimes the

kids would hide in there. Henry and I were

looking up on the balcony behind the stage

because the kids sometimes get behind the

boards and hide. Then Henry moved this

sheet of plywood and called me and I went

over there and saw the girl lying there. I

then checked her pulse and found no pulse. I

then went and got one of the Police Officers

and showed him where the body was.

A-33

his testimony at this hearing.4 Again, the majority errs

in accepting the habeas court’s findings of fact, such

findings regarding John Sessums are clearly erroneous

and should be rejected.

The majority also claims that Acreman may have

given false testimony due to the walk-through. The

majority is willing to place its faith in a video taped

interview of Acreman that was admitted into evidence

at the writ hearing. In the taped interview, Acreman

implicates another person, James Dexter Robinson, as

an assailant. The majority opinion, however, fails to

relate how that interview occurred, to wit: Richard

Reyna, a private investigator for applicant, testified

that before he began his interview he told Acreman

that there "was a new eye-witness account that was

putting him ... and James Kobinson on the landing

with the girl and that there had been trouble." Further,

Reyna told Acreman: "You don’t need to take the rap

for anyone .... I fed him this ... I said the girl was being

grabbed and she was yelling for help .... Then I told

him that James Robinson had run upstairs from the

water fountain. I said we know that."

At the writ hearing, Acreman recants what he

told Reyna on the video tape and testifies that he was

4A video taped interview of John Sessums by applicant’s

attorney was admitted into evidence at the writ hearing. In it

Sessums appears to be intoxicated and must be coached into

describing events and persons. For example, before Sessums is

able to identify Robinson he must be shown a photograph. Even

after being shown a photograph, Sessums is unable to name

Robinson and must refer to him as the man with no teeth.

One of applicant’s own witnesses testified at the writ

hearing that Sessums is an alcoholic.

“scared into telling what was said."5 Also at the writ

hearing, the habeas court judge entered a finding that

"[b]lased upon Gary Acreman’s answers to questions

and his countenance during the many hours that he

was on the witness stand, this court finds that his

testimony at the evidentiary hearing was incredible,

untruthful and generally not worthy of belief."¢ When

the majority relies upon the video taped interview of

Acreman to suggest that false testimony was elicited at

applicant’s trial, the majority relies upon unsubstan-

tiated hearsay by a man called unworthy of belief by

the habeas court judge and whose out-of-court state-

ments are contrary to applicant’s grand jury testimony.

That is, asked if he had seen anyone else at the school

on the day of the murder, applicant testified, "Nobody

else." This is significant since Acreman places Robinson

with the girl at the top of the stairs leading into the

bathroom. It is unrefuted that this is at a time when

applicant and the four other janitors are together.

Again, if the Court accepts the habeas court’s findings

this means that applicant perjured himself in the

grand jury proceedings. The more appropriate response

5When Reyna was asked about his .investigative tech-

niques in securing Acreman’s and Sessums’s stories, he related,

"My tactics were not any different than tactics applied by your

officer of any other police agency. They are the same.” Thus, the

majority would have this Court find that when a Texas Ranger

conducts an investigation that utilizes certain techniques it

produces false testimony, when, however, applicant’s investigator

utilizes the same techniques it produces reliable information.

6This one finding by the habeas court is not clearly erro-

neous. Three witnesses who testified on behalf of applicant at the

writ hearing, stated that Acreman had told them that he knew

who had committed the murder. Each witness, however, testified

that they did not believe Acreman when he told them this. One of

these witnesses testified that Acrerman was a “nut, a kook,” and

appeared to be drunk when he said this. Another described

Acreman as “always acting big.”

A-35

to the habeas court’s findings concerning Acreman’s

out-of-court statements would be to reject them. They

are clearly erroneous.

The habeas court finds and the majority blindly

accepts that another janitor, Sam Martinez, had

changed his rendition of the facts due to the walk-

through. Again the majority ignores the record.

Martinez gave the following statement to police prior to

the walk-through:

Went to work around 7:35 A.M. in cafeteria

to put table and chairs in cafeteria.

Finished in cafeteria sometime between

hour of 9:00 A.M. and 9:30 A.M., not sure

when. Next went to look for Clarence, found

him coming up stairs with two rolls of

paper. Then saw blonde-headed girl go to

the girl’s restroom. She had on blue jeans,

medium hair. Next we asked Clarence what

to do, he told us to go across the street to

the Vocational Building. We did, and then

we waited about 30 minutes before he came

out of the main building and called to the

short man to come to get the key to the

building. Then we set up chairs there, we

finished this, then he came and told us that

we were finished, which was about 11:00

A.M. or little after.

Admittedly, Martinez’s second statement, made after

the walk-through is more thorough and includes a time

reference that is not in the first statement but, as

Judge Campbell has indicated, there are no significant

discrepancies between the two statements. Moreover,

the majority fails to understand that those facts that

have been added are easily verifiable. That is, addi-

tional facts are added to Martinez’s second statement,

ae Te eR ee ae

A-36

but these facts for the most part relate to where

Martinez was during the time that the event occurred.

For example, in the first statement, Martinez relates

that, "Next went to look for Clarence, found him com-

ing up stairs with two rolls of paper.” In the second

statement, this becomes:

Then Gary, John, and I came out of the

cafeteria through the same door as we had

entered, and walked on down the hallway of

the Auditorium area to wait for Clarence to

give us our next assignment. We waited in

the hall just a short way from the stairs

that lead up to the choir room. There were

two restrooms at the top of the stairs....

Clarence came up the stairs from the gym

and was carrying toilet tissue. He started

on up the stairs toward the restroom...

Comparing the two statements it is obvious that the

only significant difference between the two is that in

the second various locations are added. These loca-

tions are easily verified by looking at the map of the

school contained in the statement of facts from the

trial. For the most part, this is true with the additional

facts that have been added to the second statement.’

The majority's reliance upon the habeas court’s find-

ings regarding Martinez’s staterments is wrong as these

findings are, again, clearly erroneous.

The majority next attacks the testimony of

Henry Martin Peace. Peace testified for the State at

TJudge Campbell has included in his opinion the first and

second statements taken from Martinez, Sessums and Acreman.

As is the case in Martinez’s second statement, both Sessums’s and

Acreman’s second statements merely inciude various locales that

are easily verifiable.

A-37

both of applicant’s trials. Peace’s testimony implicated

applicant because Peace consistently stated that

applicant told him to check the loft area in the

auditorium on three occasions during the search for

Cheryl Fergeson. Ms. Fergeson’s body was eventually

discovered by Peace in the loft area. The majority

implies that Peace’s story was a result of Ranger

Styles’s coercion of Peace. Again the majority has

placed its reliance upon the habeas courts’ findings and

again the majority’s reliance is misplaced.

In recounting the evidence that Styles had forced

Peace against a wall, choked him with the chain

around his neck and threatened to blow his brains out,

the majority ignores the fact that Styles had focused on

Peace as a suspect and was not attempting to influence

Peace’s testimony regarding applicant’s activities on

the day of the murder. Peace’s testimony bears this out:

"Q. [by Judge Pickett] Are you under any

kind of fear from anyone or

intimidation?

"A. Well, the only person I’m nct too sure

about is Wesley Styles because he did

come out to my house which I’m

going to have to testify under oath,

he did come out te my house,

roughing up or standard police

procedure, but he did get me by the

shirt. I don’t know whether you call

it shoving me, pushing me or

however. But he did put me up

against the wall and took everything

out of my pocket. He kept telling me

I killed the girl."

A-38

The record, however, is devoid of any attempt by

applicant to link the mistreatment of Peace to any

fabrication of Peace’s testimony regarding applicant.

The majority seems to infer that applicant has

standing to complain about Peace’s potential due

process violation and thereby bootstrap himself into the

same position as Peace. The majority does not cite one

case supporting this proposition nor do they show in

any manner whatsoever that Styles treatment of Peace

influenced his trial testimony one way or the other.

In addition, the majority attaches significance to

Peace’s treatment by the District Attorney’s office when

Peace complained of Styles’s activities. Peace testified

that members of the District Attorney’s office told him

he was “hallucinating” the incident regarding Styles.

The majority again fails to link the treatment of Peace

to any falsified or tainted evidence that affected appli-

cant in any manner whatsoever. Applicant’s implied ar-

gument would have this Court accord applicant stand-

ing to benefit from the alleged wrongdoing that Peace

suffered and the majority opinion gives tacit approval

to this new found judicial concept of standing by infer-

ence when discussing Peace’s assertion that he would

have preferred one of his relatives read his statement

back to him. Peace was not able to read without assis-

tance. Peace testified:

"Q. [By counsel for applicant] Did the

police take a statement from you

shortly after the murder?

"A. Yes, sir, they did.

"Q. And did they write up that

statement?

"Q.

"A.

"Q.

"A.

"Q.

"A.

A-39

They wrote something on a piece of

paper you have. I have no idea what

it was.

Did you request any aid in the

reading of the statement?

Yes, sir. I asked for my sister or

brother-in-law to be able to be there

so he could read it to me. He said it

wasn’t necessary.

Would you have trusted your sister

or brother-in-law to read it correctly

to you?

Yes, sir.

What were you told by the police

when you requested your sister or

brother-in-law to read the statement

to you?

Well, they just told me it wasn’t

necessary.

Did you believe that you would be

able to leave if you didn’t sign the

statement?

Well, they told me I would have to

sign it before I could leave.

And did you try to place a call to any

either your sister or brother-in-law?

I wanted to but they told me I had to

stay there until they got through

with the statement.

"Q. Now, Mr. Peace, did you meet with a

Texas Ranger by the name of Wesley

Styles?”

The majority's argument seems to follow along

the lines that since Peace was not granted his request

for reading assistance that his statement was false. Yet

note the last line of emphasis in the replicated

testimony. Applicant’s counsel never asks if the

statement was inaccurate. Applicant’s counsel hops to a

new topic and never broaches the consequences of

Peace’s denial to pick the reader of choice for his

statement. Why? Because the record is abundantly

clear that when it comes to the events at the school on

the day of the murder, Peace’s testimony has not

changed significantly as it relates to applicant’s

involvement. Even applicant’s investigator, Richard

Reyna who testified at the writ hearing, indicated that

Peace has remained unwaivering in his account of the

events at the school on the day of the murder. Peace

testified to the following at the second trial:

"Q. [questions by Morris, counsel for ap-

plicant] Now, how many statements

did you give in this case, Mr. Peace?

"A. I’ve only given one. k

"Q. You've only given one statement.

And when was that statement?

"A. That was on Saturday that girl got

killed.

"Q. Onthe 23rd day of August?

A-41

"A. Yes, sir.

"Q. And I know that you can’t read or

write, can you?

"A. No, sir. I can’t.

"Q. Did somebody make this statement

up and read it to you?

"A. I went to the police station with a

police officer. He sat there and wrote

it up on a piece of paper and then he

read it back to me, and then he went

and had it typed up and they they

read it back to me again. And I

initialed it."

Thereafter, Peace’s testimony is consistent with his

statement to authorities.

Further, the majority misstates the record when

they write that Peace was not allowed to leave the

police station until he signed a written statement.

Peace stated that he wanted to place a call to relatives

but the police officers told him he had to stay until they

got through with the statement. This is a far cry from

the majority's attempt to color this testimony as

representative of improper police activity. The

majority's and the habeas court’s incomplete reading of

the records in this case leads them to a result not even

remotely supported by the evidence. Applicant has

failed to show the harm he suffered as a result of the

interplay between the authorities and Peace and,

indeed, applicant is incapable of showing such harm

since Peace has adhered to his trial testimony

regarding the events at the school.

5 Non eee

on a awe . ——s oe

A-42

Last, the majority points out that Peace was told

that the "nigger was elected" [referring to applicant as

suspect] as perpetrator of the crime because of his size

and apparent strength. Aside from the odious nature of

the racial epithet the majority has failed to show why

applicant would not be elected as the prime suspect in

this crime. Negroid pubic hairs were found in the vagi-

nal area of the victim and applicant was the only Black

at the school on the day of the murder. Further, appli-

cant was the only janitor whose time was unaccounted

for during the critica) period after the victim disap-

peared. The victim was seen near applicant soon before

her death. The strangulation marks around the victim’s

throat were consistent with having been made by appli-

cant’s belt. Applicant was the only one of the janitors

with keys to the auditorium and in his statement to po-

lice he indicated that he was aware of the loft area. The

majority, however, reasons that the presence of a racial

slur in and of itself can exonerate applicant. There is

no legal support for the majority’3 proposition that the

utterance of a racial epithet applied to a suspect con-

stitutes grounds for a due process violation when the

facts clearly point to that person as being the culprit.

The majority finds another due process violation

because authorities failed to follow leads that may have

been inconsistent with applicant’s guilt. Again the

majority can cite no relevant authority but has

determined that the facts developed at the writ hearing

support this conclusion. Again the majority errs in

following the habeas court’s findings.

The majority writes that Texas Ranger Styles

maintained a blind focus that applicant had committed

the murder and points out that a Caucasian pubic hair

was found near the victim’s vagina. The majority,

taking Styles’s testimony out of context from the writ

hearing, quotes him as saying, "Let’s say I didn’t do it

and it wasn’t done and why it wasn’t done, I don’t

know," as being responsive to the question of why hair

from the other janitors were not compared with the

Caucasian pubic hair. The majority ignores that Styles

at the writ hearing testified that, "I assure you, during

my investigation, if it had been anyone connected with

Clarence Lee Brandley or other than him, he would

have been charged with it, sir." Styles further testified

that the janitors alibied each other; this is supported by

the testimony given by the janitors at trial and by

applicant himself, who in his grand jury testimony,

indicated that the other janitors would not have had

the opportunity to have committed the murders. Upon

cross-examination, applicant’s attorney asked Styles:

"(Df you look back on it now twenty-twenty

vision and it’s not fair to you, I don’t sup-

pose, to point out things that have come up

since you concluded your investigation, but

if you look back, don’t you think it would

have been the prudent thing to do at least

take samples of the other janitors’ pubic

hairs. . .?"

8This is not altogether correct. The testimony at trial by

expert witnesses was that the Caucasian hairs found near the vic-

tim’s vaginal area were "possible" pubic hairs, and, unlike the Ne-

groid hairs, these Caucasian hairs had not been forcibly removed.

Further, the majority conveniently ignores that authorities

had taken pubic hair samples from Peace to compare with the hair

found on the victim. The majority also conveniently ignores that at

trial applicant’s self-chosen expert testified that the Caucasian

hair found on the victim did not compare favorably to those of

Peace.

Styles answered, "[I]f you say it’s a good idea. I'm going

to agree with you." Applicant’s attorney, then res-

ponded, "No, I want you to say it." Styles response was

"Let’s say I didn’t do it and it wasn’t done and why it

wasn’t done, I don’t know.” When the majerity repeats

this answer in the opinion, it ignores first, the answer

is taken out of context and is only indicative of what

Styles would do nine years after the initial investiga-

tion when one of the janitors has altered his story of

events and second, it ignores testimony by Styles that

he did not investigate the other janitors because they

were able to alibi each other. Certainly, that others

were not investigated because they indicated that they

had been in each other’s company during the murder

was a reasonable action on the investigator’s part. The

alternative would Be that all the janitors, including ap-

plicant, were covering up for the killer or killers, as

such, Styles properly centered his investigation upon

applicant, the only person whose presence was unac-

counted for during the time that the girl would have

been killed.

Moreover, the majority asserts that the State

should have investigated the other janitors because the

blood on the victim’s blouse was type A an‘ it could not

have come from the victim because she had not been

cut in the upper areas of her body. This is wrong. At

trial, Pat Lux, the chemist who conducted the examin-

ation of the items sent to her by the Conroe Police

Department, testified that she did not examine the

blood on the blouse. The following colloquy took place:

"Q. So you made no effort at all to

determine from testing that blood

stain what type [of] blood that might

have been. . .?"

A-45

"A. Okay. I couldn't have gotten an

enzyme from that stain. That stain

was too weak....

"Q. But you could have determined

whether it might have been A or B or

O type blood, possibly, right?

"A. Yes, sir.

* * * *

"Q. [Y]ou attempt to determine things

that might be important as evidence

in a court of law, don’t you?

"A. Yes, sir. But these items were all

packaged together in one package,

the blood stains from the socks and

from the panties. It’s hard to say if

that blood stain came from these

socks that were packaged in there

In short, the blood on the blouse could have come from

the other bloody items found in the plastic bag. Indeed,

all physical evidence was turned over to an expert

chosen by applicant to conduct his own analysis, and

even applicant’s expert failed to examine the blood

spot. What the majority fails to relate in its facts,

moreover, is that the blood on the blouse was examined

during the trial. Moreover, it is significant that the

majority opinion fails to include in its rendition of the

facts that Peace’s blood was taken and inspected for

comparison. That blood from the other janitors (who

along with applicant in his grand jury testimony, had

alibied each other during the critical time) was not

taken for examination was again a reasonable action on

the part of investigators. There is absolutely no due

process requirement that investigators exclude beyond

any reasonable doubt other possible suspects. Here the

other suspects were eliminated by the State because

they were in each other’s company--nothing more is

required on the State’s part to conform to due process

requirements.

The majority also faults the State for its failure

to maintain vaginal swabs for further analysis. It

should be emphasized that there is absolutely no show-

ing that the swabs were discarded in bad faith by state

agents; no such finding was made during the writ hear-

ing and no such finding is even remotely supported by

the record. Moreover, the record clearly indicates that

at the time that the swabs were analyzed, state agents

followed routine procedure in maintenance and exam-

ination of the swabs. Dr. Joseph Jachimczyck, the

Harris County Medical Examiner, testified at appli-

cant’s second trial as follows:

"Q. Andin the case of a murder, or homi-

cide, committed in the course of rape

or attempted rape, what is the nor-

mal procedure for handling vaginal

smears, swabs, washings, stains,

that sort of things?

"A. Well, we obtain the specimen and I

turn them over to my chemist-

toxcologist and I request’ the

particular examinations that I want

performed, and then he performs

them for me and reports his results

to me. Once we've completed our

examination, we've either consumed

the specimen, depending on the

‘particular determination or we

"Q.

"A.

"Q.

"Q.

A-47

discard it after we've gotten the

information that we needed.

Now in the case of a requested

autopsy from another county, do you

normally just permform the autopsy,

and then turn over to some officer or

authority from that other county,

those vaginal swabs, washings, etc.?

No, the usual procedure is I handle it

like I do anyone of my own cases,

except if specifically requested by

another agency. Ther: I will provide

them with whatever samples they

would like to have. If for example,

they want a sample of blood, I'll give

them a sample of blood. If they want

to have their own independent

smears, I'll make those available. I'll

give them a set of smears, but we do

our own in our lab. We don’t send

them off anywhere.

Well, do people pick up those sam-

ples frequently and send them off to

another lab, such as the Department

of Public Safety lab?

No, sir. Not at all frequently. No.

But do they do sometimes?

Yes, on occasion it is done.

Now, are those vaginal swabs,

washings, etc.--do they have any

purpose or use in identifying an

. 3

"A.

"Q.

»

"Q.

» &

"Q.

"A.

A-48

attacker?--helping to identify the

attacker?

They may. There’s a limited use for

them. Not so much identifying the

attacker, but rather excluding a

suspect.

Because--isn’t it a fact that the

running of those liquids--or the

examination of those liquids could

never in any case than you can

imagine identify any one single

person as the person that did it?

Not to my knowledge.

But it can identify a segment of the

population that could have done it

and exclude another segment of the

population, that could not have done

it.

That is correct.

For instance, I believe you

determined in your testing that

Cheryl Fergesun had A-type blood?

Yes, sir.

And you didn’t do any further testing

to try to determine the blood type of

the donor of any of the liquids or

semen that you found in the area of

the little girl’s body?

No, sir.

SM Te naa SV ee ll a

. ~~ ~ :

"A.

"A.

A-49

And is it my understanding that you

keep some of these for up to thirty

days and then throw them out,

because you don’t have room to store

those things for more than thirty

days?

Yes, s'r.

And in this case you made no--you

didn’t try the blood type of those

semen samples that you found?

No, sir.

Would that have been possibly useful

in excluding certain individuals?

If they were secretors, probably yes.

If they are not secretors, probably no.

* * * *

But is it your testimony that none of

those tests were run with regard to

the vaginal swabs or stain washings

or vaginal washings in this case?

I did not do that. That is correct.

Doctor, did you store any of those

solutions, containing semen for

any period of time, to your

knowledge?

No, sir. I have been informed by my

staff that a request was made some-

time during the middle or later part

-

y Y

of the week of the autopsy, the

autopsy being Sunday, and at that

time, there were no swabs available.

There was blood available, which

was turned over to the Department

of Public Safety lab.

- Doctor, you'll probably recall a

conversation with me, when I called

with regard to the possibility that

you might have such samples avail-

able. Do you remember that?

I remember that, now that you

remind me. We did not have it at

that time.

Right. That was sometime up in the

first or second week of October after

we got your autopsy report.

Yes, sir.

I believe you stated that you

wouldn’t have them in any event,

because it had been longer than

thirty days?

That's right. Thirty days is generally

a@ maximum that we would have

normally kept them.

Well, Doctor, did you have enough

from the washings of stain in the

groin area, and any washings or

swabs from the vaginal area to have

gone further and tried to blood type

"A.

"Q.

"A.

A-51

those liquids and run ABO or PGM,

esterase, or any of those other tests?

We did not. No, sir.

You didn’t have enough?

No.

So, you didn’t even have enough to

blood type it?

That’s right.

What did you use the sarnples that

you had for? What did you do with

them?

Ran the acid phosphatase reaction.

Was that --

And then they were discarded.

Well, you mean the samples were

discarded, but did you have enough

to proceed further and attempt to

blood type the semen?

No, not at the time we had the

smears. These were only smears.

They were not actually liquid. They

were just a smear. The smears and

the swabs. The wet swabs and the

washings that we had we utilized

that. That was consumed during the

process of checking for the acid

phosphatase.

"A.

y

A-52

Do you use a saline solution to wash

the stain?

Right.

And there was no way that you could

have gone any further and run any

tests?

Of, if we were set up to do it, we

could have, but we didn’t feel the

need for it at the time.

Well, if you were set up--I’m sorry, I

don’t believe I understand.

If we were set up for it, I’ve since

learned that the Department of

Public Safety is set up to do this kind

of sub-testing that you’re describing.

You're not set up in your lab that you

can run those particular tests?

No, sir.

Well, so would it be correct to say you

might have had enough, but you're

just not set up to run all them?

Both are correct. I did not have

enough fluid, and I was not set up to

run them either.

Well, were--

"A.

"A.

"Q.

A-53

--But even if I had the specimens, we

couldn’t run them. There wasn’t

enough fluid there.

Were any requests made for those

fluids from the lab--

As I say--

--at the time of the autopsy?

--No, not at the time of the autopsy. I

turned over whatever was requested

at the time of the autopsy, and I’ve

indicated here what those items

were.

Was Captain Monty Koerner present

during the autopsy?

Yes, sir.

Is he chief of detectives for the

Conroe Police Department?

I don’t know his specific title, but he

is with the Conroe _ Police

Department.

Did he request those items from you

that you gave him?

Yes, sir.

He requested the items that you gave

him, such as the particles of dirt and

hair and those other things?

"A.

"Q.

"A.

"A.

A-54

Yes, sir.

Did you have any conversation with

him with regard to whether or not

you were going to try to blood type

the semen samples or run those sub-

group tests? ;

I don’t recall, but I told him we were

gong to do our usual procedure,

namely the acid phosphatase and the

microscopic slide preparations.

Well, quantitatively, how much of

the seminal solution do you need in

order to run the acid phosphatase

test?

About a CC.

Okay. About a CC, but that is a very

dilute solution, isn’t it?

Right.

And in making washings on the groin

area, hov’ much liquid or solution did

you end up with following the

washing?

I don’t remember exactly how much,

but not too much, because we didn’t

want to dilute that stain any further

than what was necessary to do the

test.

Now, I believe that you said that you

took a swab from the vaginal area?

"A.

"Q.

"Q.

y *

"Q.

"A.

"Q.

*

A-55

Yes, sir.

Is that a wet cotton swab?

Well, it was dry when we started,

and it became moist, when we got the

specimen.

Okay. And then you made a smear on

a slide?

We made two--two smears each from

the mouth, vagina, and rectum on

the microscopic slides and stained

those to demonstrate the presence or

absence of spermatozoa.

Okay. And upon taking vaginal

swabs and making the microscopic

slides, could you have taken the

semen or fluid that was left in the

cotton swab and made a solution of it

and run some tests?

I suppose that could have been done.

But that was not done in this case.

No, sir.

Well, is it possible there would have

been enough upon taking the swab

and washing the swab out and

making the solution that you could

have blood typed it?

It’s always possible. It depends on

the concentration of the fluid itself.

"A.

Dr. Jachimczyk’s testimony on direct exam-

And it depends on the amount of

enzymes and the heaviness of the

smear, and the--whether the person

is a secretor or not. There are a

number of variables that--but, as far

as is it possible, yes, I would say it

would be possible.

So you don’t know whether there was

or there wasn’t enough on the swab

to run those blood tests?

The swab looked awful dry to me.

That’s all I can say."

ination at the writ hearing is as follows:

"Q.

"A.

"Q.

"A.

All right. In the autopsy of Cheryl

Fergeson, did you obtain what is

commonly referred to as a cotton

swab of the vagina area?

Yes, sir.

And the purpose of that is what?

Well, the purpose of obtaining the

cotton swabs is to check for the pre-

sence or absence of any spermatozoa

or if the presence or absence of any

seminal fluid in the form of the

enzyme, the acid phosphatase which

was a component of seminal fluid.

In this particular case, where it was

reported to you I suppose a suspicion

of rape and murder, were you looking

yf

"Q.

"Q.

"A.

A-57

for evidence of spermatozoa or

semen?

Well, in view of the injury that I saw

on the body, of course, I was

suspicious of rape being a component

in this particular death; therefore, I

did my customary examination.

And doctor, when you find sperma-

tozoa or evidence of spermatoza or

semen in the vagina, is it collected on

a cotton swab?

Yes, sir.

Did you do that in this case?

Yes.

Did you collect spermatozoa and

semen on the cotton swab?

Well, actually I collected the--

Fluid?

Not really. There wasn’t any fluid as

such. We just took a smear, literally,

of those portions of the body, that is,

the vagina, the rectum and the

mouth and we also took a washing of

a stain that was present in the left

groin.

All right. Now, do you preserve or,

take it back, do you know whether or

"A.

"Q.

"A.

"Q.

"A.

"Q.

"A.

"Q.

"A.

"Q.

A-58

not you personally gave the cotton

swabs to Detective Koerner?

I don’t remember precisely whether I

did or I did not.

And is there any written memo, have

you searched your file to see if there’s

any written memo or such that would

say what actually happened to the

cotton swabs?

No, sir.

Now, about a week after Monty

Koerner was in your office for the

autopsy, were you contacted by a Mr.

Wesley Styles?

I don’t remember that I was.

Do you have any present recollection

of whether or not the cotton swabs

were given to either Monty Koerner

or Wesley Styles?

I do not recall at this time, no, sir.

Do you have any recollection or

written memorandum that would say

that you destroyed the cotton swabs?

No, sir.

Dr. Jachimezyck, is it possible in

your understanding of the heart of

forensic medicine, that you can

determine the blood type of the donor

"A.

~

» &

"A.

A-59

of spermatozoa or semen if that

person is a secretor?

If he is a secretor and if there’s

enough material there to examine,

yes, that can be done.

Now, who calls the shots, Doctor? Do

you decide what test you’re going to

run or does the police department or

the agency that retains you decide

what tests are going to be run on any

evidence that you have?

Well, in so far as cause and manner

of death is concerned, it is my deci-

sion. I do any and all necessary tests

to determine the exact cause and

manner of death. In so far as any

evidence, where it concerns addi-

tional police investigation, I do not

call the shots.

That would be done then by, in this

particular case, either Monty

Koerner or the Conroe Police

Department or Wesley Styles of the

Texas Rangers?

Well, I can’t say for sure whether in

this particular case, but in general,

that’s the way it’s done.

Do you have now, Doctor, the cotton

swabs?

No, sir.

toe

A-60

You have searched your file and are

relatively certain that they do not

exist, at least in your office?

I’m positive they don’t exist.

Cross-Examination by Mr. Speers:

"Q.

"A.

"Q.

Dr. Jachimczyck, does your office or

at least let me ask you with reference

to your procedures back in August of

1980 when this autopsy was per-

formed, did your office perform as a

routine course or for that matter at

any time blood grouping analysis of

seminal fluid?

No, sir.

Normally, in that situation if you’ve

been able to recover some by cotton

swab or whatever method though

would be submitted to the D.P.S.

Laboratory or to someone like that by

the agency that was investigating the

case?

Well, we were not involved in that at

that time. We did do a blood group

but on the blood, not on the swabs

themselves."

We were not even attempting that, no.

"Q.

The whole purpose of your either the

taking the swabs and taking the

A-61

washings, all that was just to deter-

mine whether or not there was either

spermatozoa that you could see

under the microscope or if not, semi-

nal fluid as revealed by the presence

of acid phosphatase; is that correct?

"A. Yes, sir.

"Q. So whatever tests you did not per-

form in the first instance for the pur-

pose of subsequent testing to come

up with blood group of the donor,

wouldn’t it?

"A. Thatis correct, yes, sir.

"Q. As I understand it, just to make it

clear, as to the swabs that were

taken by you or under your direction

at the time of autopsy, the bottom

line is you don’t have any idea what

happened to those. Is that correct?

Or do you have some idea what

happened to them eventually?

"A. The ones that we did our examination

on were discarded.

"Mr. DeGeurin: Your Honor, I’m going to

have to object. First of all, make sure this is

not from hearsay at this time, and ask that

the answer be stricken until it’s demon-

strated it’s not from hearsay.

"The Court: Rephrase your question, Mr. Speers.

"Q.

"A.

y %

A-62

(By Mr. Speers) Obviously you used--

As I understand, there were two

things done, there was some swabs

taken, also some smears taken on

microscope slides; is that correct?

The microscope slides were prepared

from the same swabs.

Okay.

And then first the slides were pre-

pared, literally smeared on a slide

and then the residue is treated with

a chemical and tested for the pre-

sence or absence of acid phosphatase

reaction.

And after you, the swabs were used

to perform that test, the acid

phosphatase tests, you shucked them

in the trash when you completed that

test; is that right?

Not immediately. We discard them--

Now we keep them six months, but at

that time, we kept them on the

average of a month or less.

So in terms of would you have used

up all the swabs that were taken

performing the acid phospnatase test

or other tests?

Yes. Well, the swabs would still

remain but the acid phosphatase

would no longer be demonstrable

because whatever was there will

"A.

A-63

have been in a sense consumed

during the process of the testing, the

chemical reaction, in other words.

{ guess the bottom line question, I

don’t know what the answer to this

is, but would the swabs that you took

and at any point after you had

performed the test, would they have

been of any use to your knowledge to

anybody in making further studies as

to the blood group analysis of the

donor of the sperm?

No, sir. No, sir."

* * * *

Redirect Examination by Mr. DeGeurin:

Q.

Doctor, I understand that when you

make a--you take the cotton swab

and rub it across a piece of glass on a

slide to make a smear and from that

smear you determine, you treat it

and determine if there’s spermatozoa

or sperm? Or semen?

No. The slide has first got to be

stained and whatever cells are on the

slide take up this stain and then we

can look for and do look for the

presence or absence of stained

spermatozoa.

But you actually see it through the

microscope, correct and, identify it?

"A.

"A.

"Q.

y @

"A.

"Q.

"A.

A-64

Oh, yes. You can’t see that with the

naked eye, no, that’s for sure.

Now with the cotton swab you had

used to smear the stain, that cotton

swab is kept now six months and

back then for a period of time; is that

correct?

Yes, sir.

And it’s on that cotton swab would be

traces, would it not, of actual fluid of

some sort donated by the person who

raped Cheryl Fergeson? Isn’t that

correct?

Run that by me again, sir. I didn’t

understand your question.

The cotton swab that comes from the

cavity of Cheryl Fergeson, the person

you did the autopsy on?

Right, yes.

You take that cotton swab, you rub it

across the piece of glass for the test

you're performing to determine if

there is spermatazoa or semen?

Well, spermatozoa, you can’t tell

semen on that at that point, only if

the sperm are there are not.

Then after you have done that, you

still have the cotton swab, do you

not?

A-65

Right.

And on that cotton swab is fluid

donated by the attacker?

Right.

Now, in the present art, are you

aware of that from those cotton

swabs, even without refrigeration left

in a file cabinet drawer, then years

later, a DNA molecule can be ob-

tained and can identify like a

fingerprint the person who actually

did the rape?

Well, I’m not sure of the accuracy

that you point out.

Have you heard about the process?

Not until I got the Court order that

you requested.

And you are aware, aren’t you,

Doctor, that from the fluid that is

left or substance that is left on the

cotton swab through washings or

whatever is necessary, you can

obtain something from which with

the proper methods the blood type of

the donor of that spermatozoa or

semen, you can determine the blood

type if that person was a secreter?

Yes, sir, providing that it was not

subjected to any other chemical

reaction.

"Q. Now, the cotton swab, did you stick it

in some kind of chemical reaction?

"A. Yes.

"@. How many cotton swabs were there?

"A. I don’t understand--how do they

work? There is a color reaction.

"Q. How many were there?

Of, there are two.

"Q. Did you personally throw them both

away?

"A. Now, wait just a moment. No. No.

From where now are you talking? We

had one from the mouth, one from

the vagina and one from the rectum,

so we had three.

"Q. All right. And all three of those

cotton swabs are missing?

"A. All three of those, yes, theyre no

longer available, that’s true."

Thus, the swabs were discarded after the analysis was

conducted upon them per the standards utilized at the

lab at that time. The majority’s reliance upon testi-

mony indicating that the present procedure, utilized by

investigating authorities, is to maintain the swabs, is

misplaced. What the current procedure is today--in a

world where technological advances in forensic science

are commonplace--is immaterial. In addition, nowhere

in the record is any bad faith imputed to Dr.

A-67

Jachimczyck as a result of the laboratory guidelines he

followed. at the time of the Fergeson autopsy. The

majority is wrong when it judges the nine year old pro-

cedures under today’s standards.

The most tenuous argument advanced by the majority

is that regarding the State’s failure to investigate a

lead by Cheryl Bradford. Supposedly, Bradford saw two

men rushing through the gym around the time of the

murder. She told this to her coach who in turn told the

Conroe Police Department.? The majority faults the

State for its failure to investigate further. The majority

errs considerably. The Conroe Police questioned every

girl participating in the volleyball tournament along

with the coaches and staff. No other person interviewed

verified Bradford’s statement. An officer with the

Conroe Police Department, who had interviewed each

of the girls at the school, testified at trial that at that

time "the gym was quite full" and that in attendance

were men as well as boys. Thus, the majority would

have the police investigate an unsubstantiated

statement made by only one of several people inter-

viewed that she saw two men in an area where police

had seen several men. Certainly, this is an

unreasonable requirement on the majority’s part.

The majority finds Bradford’s statement to be

significant because, according to the majority, Bradford

suffered "chills" when she saw a televised picture of

James Robinson. The majority is taking Bradford’s

statement out of context and the habeas court and the

9There was no evidence introduced at the writ hearing

that the police actually received this information and that it was

relayed to those investigators concerned with applicant’s case. The

prosecutor testified at the writ hearing that he was unaware of

Bradford’s statements.

A-68

majority completely miss the mark on this point.

Bradford, at the writ hearing, testified:

"Q. [by Mr. Speers] Now, when you were

watching 60 Minutes, was there any-

thing you saw on 60 Minutes that

caused you to make phone call to the

authorities?

"A. Well, I was sitting at home that

afternoon, watching 60 Minutes and I

was probably grading papers or I

don’t know, doing something, and

anyway, we really wasn’t paying

attention to it and they said Clarence

Brandley and they said Conroe High

School and so I Started watching it.

And all of a sudden they showed--

they showed a guy on the television

with kind of dark hair. I don’t know

if it’s, if I recognized the guy, which I

doubt I did because like I never saw :

the guy way back then face on, but I

don’t know if it was me recognizing |

him or just the thought of everything

again that made me--I just got chills

all over. I couldn’t sleep that night so

the next day, I had called one of the

other coaches I worked with. I had

told her everything. So the next day I

called Conroe. I told them, you know,

that I had--I was there when it

happened and just made me call

them again.

"Q. Then did you this statement to an

investigator from the Attorneys

General’s Office?

7 _

A-69

"A. Yes.

* * * *

"Q. [By State’s Attorney] Mrs. Bradford,

just to make it clear, in fact, you

can’t tell us that the person that you

saw or one of the people that you

apparently saw inside the gym-

nasium was the person whose picture

you saw on 60 Minutes?

"A. No, I can’t.”

Absolutely no basis exists for the inference that

Bradford got the "chills" because she recognized

Robinson from the televised photograph. The majority’s

requirement that the police officers investigate

Bradford’s statement further is completely unreason-

able--the lone statement is not only unsubstantiated by

other witnesses at the scene, it is of little probative

value in inculpating Robinson and is of no value in

exculpating applicant. As Judge Campbell aptly

concludes, that other persons may be implicated in the

murder in no way disproves applicant’s guilt.19

10The majority fails to relate that, upon defense counsel’s

request, the Attorney General’s Office conducted an independent

investigation of the Brandley trial. Robert Bodish, an investigator

for the A.G.’s office with fourteen years’ experience, testified at the

writ hearing that he investigated Bradford’s statement. In so

doing he concluded that where Bradford said that she had seen

the men running through the gym, there is no access form the gym

into the auditorium and that the two men would have been no

where near where they would have had access to the auditorium.

Thus the minute value that Bradford’s statement may have in

inculpating others is further diminished.

The Attorney General’s complete report was exclud»' from

evidence at the writ hearing upon applicant’s objection.

A-70

The majority finally faults Styles for his failure

to investigate a statement made by Acreman to Peace

that Acreman, after he came from the school, stated

that applicant was "having fun with a good looking

girl." Notwithstanding that this statement implicates

applicant, the majority suggests that it could possibly

be a story created by Acreman to falsely implicate ap-

plicant and thus direct the investigation away from

someone else. Thus the majority desires that Styles,

who testified at the writ hearing that he did not believe

the statement when told this by Peace, should have

proven to himself that it was unworthy of belief. Again

the majority ignores the record. At the writ hearing,

Styles testified that he spent a great deal of time on the

investigation of this case and that he attempted to eli-

minate other possibilities. Either the majority can be-

lieve or disbelieve this testimony, but requiring Styles

to disprove Acreman’s statement was a deliberate false-

hood created to cover up for someone else by actually

finding that other person is an impossible requirement

when there are no other possibilities.

Finally, as a matter of reply to the concurring

opinion filed herein, I agree that due deference must be

paid to the findings of fact and conclusions of law made

by the habeas court. But such has never been an abso-

lute rule. See, e.g., Ex parte Young, 479 S.W.2d 451

(Tex.Cr.App. 1972), and Ex parte Guzman, 589 S.W.2d

461 (Tex.Cr.App. 1979). However, and as emphasized

in Judge Campbell’s dissent and reiterated herein,

even if we take this habeas court’s findings as true and

accurate, no basis for relief is demonstrated. Further-

more, a reading of all the records including the first

trial, second trial, first habeas hearing, and the present

hearing leads me to no other conclusion than the find-

ings are clearly erroneous. To tie this Court’s hands

and deny our Constitutional jurisdiction by requiring

us to up-hold erroneous findings of a habeas court is to

A-71

return to the "good ole days" when trial courts could

legitimately thwart the authority of this Court. See

State ex rel. Wilson v. Briggs, 351 S.W.2d 892

(Tex.Cr.App. 1961).

For all the reasons set forth above, I dissent. :

CAMPBELL, J., joins this dissent.

CAMPBELL, Judge, dissenting.

This is a writ of habeas corpus filed pursuant to

11.07 V.A.C.C.P. Applicant was tried for and convicted

of capital murder. He was sentenced to death. This writ

application was filed and set to examine three of appli-

cant’s seven claims: (1) Whether "Petitioner was denied

fundamental fairness and due process of law by the fact

that critical evidence having the potential to prove that

the applicant is innocent was lost and destroyed while

in the exclusive possession of the State;" (2) Whether

"The pretrial investigative procedures utilized by the

State were so impermissibly suggestive of the applicant

that it created false testimony calculated to manufac-

ture circumstantial evidence against the applicant in

violation of his constitutional rights to due process of

law and a fundamentally fair trial;" and (3) Whether

"Texas’ death penalty system, as applied, discriminates

against black defendants in violation of the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution." The majority grants relief

on the basis of the second claim, designated as number

five in applicant’s original petition, without addressing

the other two issues. I disagree with the majority’s con-

clusion concerning the second claim and, therefore,

must address the other two issues in order to deter-

mine whether I believe applicant is entitled to relief.

Believing all of applicant’s claims to be without merit, I

would deny relief.

A-72

In the first claim filed and set for consideration,

applicant argues that the destruction or loss of several

swabs taken from the vagina of Cheryl Fergeson and

two Caucasian hairs taken from near the vagina of the

deceased deprived him of a fair trial. In his application,

he alleges the following:

1.) THE COTTON SWABS;

Cotton swabs were used to take sam-

ples from the victim’s vagina shortly after

the rape and murder occured [sic]. Semen

and live spermatoza [sic] were present on

the cotton swabs. Scientific analysis of the

substances on the swabs could have proven

the innocence of the Petitioner. The cotton

swabs were either intentionally or negli-

gently destroyed by the State while in the

exclusive possession of the State. They were

destroyed before the Petitioner’s attorney

had an opportunity to have them analyzed.

2.) THE PUBIC HAIRS

A reddish brown caucasian [sic]

pubic hair and another brown body hair of

probable caucasian [sic] origin were found

near the victim’s vagina. Scientific analysis

performed by the Texas Department of

Public Safety Crime Laboratory established

that these two hairs were neither the Peti-

tioner’s nor the victim’s. Sometime after the

conclusion of the Petitioner’s second trial,

these hairs were lost by the State while in

the exclusive possession of the State.

A-73

Because the two caucasian [sic] hairs

found near the victim’s vagina were "lost"

by the State, the Petitioner is now deprived

of an opportunity to prove his innocence by

scientifically comparing the two hairs with

the pubic hairs of the caucasian [sic] mur-

der suspects who have recently surfaced.

The loss or destruction of this critical evid-

ence while entrusted to the State of Texas

denies the Petitioner his fundamental right

to present evidence to prove his innocence.

In response to our order for an evidentiary hear-

ing, the hearing judge entered several findings of fact

relevant to applicant’s allegations on this point. In re-

gard to the cotton swabs, the hearing judge found that

samples of fluids were taken from the vagina of Cheryl

Fergeson with cotton swabs; these swabs tested posi-

tive for the presence of spermatozoa; no record exist as

to when or by whom the samples were destroyed; the

swabs were not available shortly after the murder and

before applicant’s first trial; such swabs have critical

evidentiary value; it is possible to determine blood type

and other genetic characteristics of a donor from a

sperm sample; such test can be used to exclude some

rape suspects; it is, and was in 1980, standard

procedure to preserve such samples; and there is no

valid scientific justification for the destruction of such

samples. In regard to the hair samples, the hearing

judge found that four hairs were found near the

victim’s vagina, and one hair was a Caucasian pubic

hair that did not belong to the victim or her boyfriend.1

1The hearing judge also made findings concerning the State’s

failure to take blood and hair samples from other possible suspects

and the prerence of type A blood on the victim’s clothing. These

findings do not bear on applicant’s allegation as plead in his

application for writ of habeas corpus. Such allegations, if they had

(footnote continued on next page)

A-74

In order for the destruction of evidence in the

possession of the State to rise to the level of a Due

Process violation, a defendant must show that the de-

struction was the product of bad faith on the part of the

State. Arizona v. Youngblood, ___ U.S. __., 109 S.Ct.

333, 337, 102 L.Ed.2d 281 (1988). The findings of fact

entered by the hearing judge fail to establish that loss

of either the swabs or the hair samples was due to bad

faith on the part of the State. Within this context, bad

faith would require that the State knew that the items

destroyed would have been exculpatory.2 Youngblood,

(footnote continued from previous page)

been raised in this point, would not merit granting applicant

relief.

In the court meant by this statement that the Due

Process Clause is violated when the police fail to use

a particular investigatory tool, we strongly disagree.

The situation here [sexual assault] is no different

than a prosecution for drunk driving that rests on

police observation alone; the defendant is free to

argue to the finder of fact that a breathalizer test

might have been exculpatory, but the police do not

have a constitutional duty to perform any particular

tests.

Arizona v. Youngblood, __ U.S. __, 109 S.Ct. 333, 338, 102

L.Ed.2d 281 (1988) (emphasis added); see also discussion of

applicant’s fifth allegation, post.

2In his concurring opinion in Arizona v. Youngblood,

Justice Stevens explains why limiting the Court’s holding to “bad

faith" cases is ample protection for future defendants.

[A]t the time the police failed to refrigerate the

victim’s clothing, and thus negligently lost poten-

tially valuable evidence, they had at least as great

an interest in preserving the evidence as did the

person later accused of the crime. Indeed, at that

time it was more likely that the evidence would have

been useful to the police-who were still conducting

(footnote continued on next page)

A-75

__ ~-US. at __, 109 S.Ct. at 337 n.**; see also

California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct.

2528, 81 L.Ed.2d 413 (1984); Napue v. Illinois, 360 U.S.

264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Because

applicant does not allege that the State knew the miss-

ing evidence was exculpatory and there is no eviden-

tiary support for such an allegation, this claim for relief

is without merit.

Il.

In the second claim, applicant essentially argues

that the prosecution and law enforcement officials

instigated an investigation and prosecution founded

upon racial bias and prejudice (the so-called “blind

focus") that inexorably led to the wrongful conviction of

an innocent applicant, violating his due process rights

vouchsafed by the 14th Amendment to the U.S. Consti-

tution. The foundation for this claim, however, the bed-

rock upon which it rests, is what may be loosely termed

as newly discovered or available evidence. The "evid-

ence" offered by applicant essentially consists of recan-

tations and recantations of prior recantations of wit-

nesses who testified at applicant’s previous trials.

Thus, a threshold question arises concerning the

nature of applicant’s claim and the fundamental issue

of cognizability--i.e., whether applicant’s "true" claim is

cognizable in a post-conviction writ of habeas corpus.

(footnote continued from previous page)

an investigation--and to the prosecutor--who would

later bear the burden of establishing guilt beyond a

reasonable doubt-than to the defendant. In cases

such as this, even without a prophylactic sanction

such as dismissal of the indictment, the State has a

strong incentive to preserve the evidence.

Arizona v. Youngblood, __ U.S. at __, 109 S.Ct. at 338 (Stevens,

J. concurring).

A-76

For the reasons about to be given, I submit that the

claim is not cognizable and should not even be enter-

tained by this Court.

The most succinct statement to be found con-

cerning this area of the law was made by the Supreme

Court in Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct.

745, 759, 9 L.Ed.2d 770 (1963), viz:

“where newly discovered evidence is alleged

in a habeas application, evidence which

could not reasonably have been presented

to the State trier of facts, the federal court

must grant an evidentiary hearing. Of

course, such evidence must bear upon the

constitutionality of the applicant’s deten-

tion; the existence merely of newly dis-

covered evidence relevant to the guilt of a

state prisoner is not a ground for relief on

federal habeas corpus.”

See also, Anderson v. Maggio, 555 F.2d 447 (5th Cir.

1977); Drake v. Wyrick, 640 F.2d 912 (8th Cir. 1981);

Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975), cert.

denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270

(1975); United States ex rel. Whitmore v. Malcolm, 476

F.2d 363 (2nd Cir. 1973).

The foregoing cases decided by the Supreme

Court and the federal circuit courts reflect only federal

habeas practice. However, this Court, in a unanimous

opinion decided just six years ago, elected to follow the

federal courts in this area. See Ex parte Binder, 660

S.W.2d 103 (Tex.Cr.App. 1983). In Ex parte Binder,

supra, this Court held:

"The basic principle of the state and federal

cases heretofore examined, would appear to

A-77

be that the mere raising of a claim of newly

discovered evidence is, standing alone, not

a fit subject for the exercise of state or

federal habeas corpus powers.

** * *

Applicant is obviously free to pursue any

remedies the state executive branch has to

offer." [my emphasis] 660 S.W.2d at 106

Further, this Court, in Ex parte Banspach, 130

Tex.Crim. 3, 91 S.W.2d 365 (1936), over fifty years ago

stated:

"It is well settled by the decision of the

Court of Criminal Appeals that the merits

of a case involving the guilt or innocence of

an accused are not a proper subject of in-

quiry in a habeas corpus proceeding ... This

Court has consistently declined to permit

the writ of habeas corpus to usurp the

function of an appeal."

Even assuming, arguendo, that applicant can establish

a cognizable “blind focus" claim under Art. 11.07,

supra, he must do so by showing that these recanta-

tions and recantations of prior recantations of trial

witnesses produce a violation of applicant’s rights that

rises to a level of deprivation of due process of law. As I

will show, the majority opinion attempts to take these

recantations and recantations of prior recantations and

wrap them in the more attractive cloak of due process

of law and thereby grant applicant relief.

The majority opinion relies heavily on Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), and its progeny and a series of Supreme Court

A-78

cases concerning improperly suggestive lineup proce-

dures. I will begin by discussing these two doctrines

and what must be proven in order to obtain relief

under them; then, I will discuss the facts of this case,

both as stated in the majority opinion and as appearing

in the record, and show why relief is not proper.

In order to sustain a Brady claim, a defendant

must not only show that the suppressed evidence was

exculpatory, but that it was material in a constitutional

sense. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The

Supreme Court has examined the materiality require-

ment of Brady on several occasions. In United States v.

Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342

(1976), the Supreme Court discussed this materiality

requirement.

The Court of Appeals appears to have

assumed that the prosecutor has a constitu-

tional obligation to disclose any information

that might affect the jury’s verdict. That

statement of a constitutional standard of

materiality approaches the "sporting theory

of justice" which the Court expressly reject-

ed in Brady. For a jury's appraisal of a case

"might" be affected by an improper or triv-

ial consideration as well as by evidence giv-

ing rise to a legitimate doubt on the issue of

guilt. If everything that might influence a

jury must be disclosed, the only way a pro-

secutor could discharge his constitutional

duty would be to allow complete discovery

of his files as a matter of routine practice.

Whether or not procedural rules

authorizing such broad discovery might be

desirable, the constitution surely does not

demand that much.

A-79

Agurs, 427 U.S. at 108-09, 96 S.Ct. at 2400 (footnote

omitted). See also Moore v. Illinois, 408 U.S. 786, 795-

96, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). The Court

further clarified this standard in United States uv.

Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481

(1985).

[Undisclosed] evidence is material only if

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.

** * & & &

The reviewing court’ should assess the pos-

sibility that such effect might have occurred

in light of the totality of the circumstances

and with an awareness of the difficulty of

reconstructing in a post-trial proceeding the

course that the defense and the trial would

have taken had the defense not been misled

by the prosecutor’s incomplete response.

(3?The majority argues that we should defer to the hearing

judge’s findings if they are supported by the record. However, the

majority's authority for this proposition is limited to factual find-

ings. I am aware of no authority that would require us to defer to

legal conclusions made by a lower court, and the Supreme Court

seems to regard the question of materiality as either a legal issue

or one uf mixed law and fact. Because they have set out this duty

for the reviewing court, materiality is an issue for us to decide de

novo.

A-80

Bagley, 473 U.S. at 682-83, 105 S.Ct. at 3384 (emphasis

added). See also Ex parte Adams, 768 S.W.2d 281, 289-

90 (Tex.Cr.App. 1989).4

The majority has limited its inquiry into the

record to a determination of whether there was some

testimony on which the hearing judge could have based

his individual findings of fact. While such an approach

may be proper in determining whether the findings are

“supported by the record,” it wholly fails to make the

determination of materiality required of us by the

United States Supreme Court.

The Supreme Court has adopted a similar stan-

dard of materiality for cases in which improper police

procedure has produced an unreliable identification. In

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18

L.Ed.2d 1199 (1967), the defendant was taken to the

hospital room of one of his alleged victims. The victim

was asked whether the defendant was the man who

had killed her husband and attacked her. She posi-

tively identified the defendant, and before the Supreme

Court, he challenged the identification as being the

product of an unconstitutionally suggestive procedure.

The Court stated:

We turn now to the question whether peti-

tioner ... is entitled to relief on his claim

that ... the confrontation conducted ia this

case was so unnecessarily suggestive and

conducive to irreparable mistaken identifi-

4In Adams, this Court noted that the Supreme Court has

applied a different standard to the State’s “knowing” use of

perjured testimony--whether the testimony might have affected

the verdict. 768 S.W.2d at 290. Applicant does not argue that he is

entitled to relief based on the State’s knowing use of perjured

testimony. To this extent, this less-restrictive standard for

constitutional error is inapplicable to this case.

A-81

cation that he was denied due process of

law.... The practice of showing suspects

singly to persons for the purpose of identi-

fication, and not as part of a lineup, has

been widely condemned. However, a claim-

ed violation of due process of law in the con-

duct of a confrontation depends on the fo-

tality of the circumstances surrounding it....

Stovall, 388 U.S. at 301-02, 87 S.Ct. at 1972 (emphasis

added); cf. Foster v. California, 394 U.S. 440, 442-43, 89

S.Ct. 1127, 1128-29, 22 L.Ed.2d 402 (1969) (repeated

lineups in which defendant was the only common sus-

pect held to violate standard set out in Stovall). Thus,

the question relevant to suggestive investigative pro-

cedures is virtually identical to that of "materiality" in

a Brady setting--was the procedure so unfair that it

calls into question our confidence in the verdict. Again,

because the majority fails to examine the effort of the

suggestive procedures, it overlooks a threshold ques-

tion necessary to grant applicant relief.

In its opinion, the majority focuses on three

factual occurrences in granting relief.5 First, they

5The majority also expends a significant amount of effort

discussing various investigative leads not pursued during the

investigation of this crime. The majority characterizes its use of

these factors to bolster its position that the investigation was

conducted with a blind focus. I disagree with this position.

Clearly, there is no constitutional necessity to exhaust

possible leads or to conduct specific scientific tests. Youngblood,

___ US. at __, 109 S.Ct. at 338.

By discussing these points the majority does not clarify

this case by providing circumstantial evidence of a generally

slipshod investigation. Instead, it changes the opinion’s focus from

whether the pretrial investigative procedures were constitutional,

to whether they were, in some subjective sense, "good." Our duty is

(Footnote continued on next page)

A-82

discuss the "walk-through" and the possibility that this

procedure was unnecessarily suggestive and caused

several witnesses to improperly alter their testimony.

Second, they discuss Ranger Style’s intimidation of

Henry Peace. And third, they discuss Cheryl Bradford’s

statement to the police that she had seen two white

men walking through the gym at the approximate time

of the killing. I do not believe that any of these three

occurrences rise to the level of constitutional infirmity

necessary to warrant relief.

Assuming, arguendo, that the hearing judge’s

findings of fact are correct6 and that the majority is

correct that the walk-through was conducted in an im-

properly suggestive manner, the record does not sup-

port a conclusion that the effect of the walk-through

was constitutionally material. Three of the five janitors

on duty the day of the murder went through a joint

walk-through of the school with Ranger Styles on

August 30, 1980: Gary Acreman, Sam Martinez, and

John Sessum.7 Each of these three men gave written

statements before and after the walk-through. Com-

parison of the pre-walk-through statements with the

statements given after the walk-through reveals that

the changes in the witnesses’ accounts are very minor.

(footnote continued from previous page)

neither to castigate nor praise the State’s investigation in this

case. Our job is limited to looking for constitutional error. This

discussion of "lost leads” is simply a red herring.

6The hearing judge did not make a specific finding con-

cerning the materiality of any alleged constitutional errors.

7The other two janitors were Henry Peace and applicant.

Peace did not participate in the walk-through because of the

distance that he lived from the school and because all written

statements placed him apart from Acreman, Martinez, and

Sessum at the relevant times.

A-83

The first thing that one notices when comparing

any of the pre and post walk-through statements is

that the statements taken after the walk-through are,

without exception, longer and more detailed than those

taken before the walk-through. This fact does not

establish that the walk-through somehow tainted the

witnesses’ statements. The first set of statements were

written by each witness himself. The second set of

statements were the product of an interview with the

witness by Ranger Styles. It is reasonable to believe

that the prodding of Ranger Styles would increase the

detail of each statement without compromising the

integrity of any witness’s account of what he observed.

In addition, the mere act of tracing one’s steps

throughout the day would likely produce greater detail

even without pressure to conform one’s account with

those of the other witnesses. The additional length of

the statements does not establish that the walk-

through altered any testimony in an improper manner.

Before the walk-through, John Sessum gave the

following written statement:

I come to the school about 8:00 A.M., I rode

to work with Gary in his Datsun Pickup,

orange and white color. We park in front of

the vocational building. We walked over to

the main building, the doors were all locked

and we waited for Clarence. We waited

about 10 or 15 minutes. Sammie [Martinez]

came up after we got there and was also

waiting. Clarence came down the sidewalk

and opened the door. There was another

subject Eckie [Henry Peace] a short stocky

guy, he also came up about the same time

as we did. All five (5) of us then went to the

cafeteria and Clarence showed us where to

set up the tables and chairs. It took about a

A-84

hour and a half to set up the chairs. When

we finished we walked out in the hall to the

front of the building. We waited 10 or 15

minutes. There were a couple of people

standing in the hall around the end where

the gym is. When Clarence came up a girl

was coming up behind him. We kidded him

about watching out, there is a pretty girl

coming up behind him. She had blond

shoulder length hair, about 5’ tall, she had

blue jeans and a pullover sweater on.

Clarence told us what we had to do and

where to go. The four (4) of us then went to

the annex to set up the chairs. Clarence

said he had something else to do and stayed

behind. We sat in the annex about five (5)

minutes, then Eckie went back and got the

keys from Clarence. When he got back we

set up the tables and chairs. We finished it

and it was around 10:30 or 11:00 A.M.

Clarence came over and told us it looked

good and we could go home. That is when

Gary [Acreman] and I left, I do not know

when Clarence and the other two left [sic in

passim].

Sessum’s statement given after the walk-through

stated:

On Saturday, August 23, 1980 I arrived at

my job at the Conroe High School some-

where between 7:00-7:30 A.M. I rode in

with Gary Acreman. We went to the north

side of the building to wait for Clarence

Brandley to come unlock the door, because

he is the supervisor and is the only one who

had a key to the doors. Henry Peace was

A-85

also there when Gary and I arrived and a

few minutes later, Sammy Martinez got

there. We waited approximately fifteen (15)

minutes for Clarence. When he got there,

he unlocked the door on the north side of

Conroe High School and we all went in.

Clarence took us (me, Gary, and Sammy) to

the Cafeteria and told Henry Peace to buff

the floor in the Teachers’ Lounge. Clarence

then unlocked the door to the lunchroom

and told us to put the tables and chairs

back in it. Clarence then unlocked the side

door of the lunch room that leads into the

hallway of the Auditorium area. We fin-

ished setting up the tables and chairs

around 9:30 A.M., and then came back out

through the same door we entered from,

and walked down the hallway of the Audi-

torium area to wait for Clarence to come

tell us what to do next. We were waiting

just a few feet away from the stairs that

lead up to the Choir Room area. There are

two restrooms at the top of the stairs--one

for ladies and one for men. We stood there

for approximately fifteen (15) minutes and

saw a white female student with shoulder

length blonde hair, wearing blue jeans and

a slip-over type shirt, (color unknown) come

up the stairs from the gym area. She went

on up the other flight of stairs and went

into the ladies’ restroom. Just as she went

into the restroom, Clarence came up the

stairs from the gym area. He was carrying

several rools of toilet tissue and he started

up the other flight of stairs toward the rest-

rooms and Gary hollered at him and told

him there was a girl in the restroom He

said, "I’m not going in the restroom, you all

A-86

go on over to the Vocational Building and

start setting it up for a meeting, and I'll be

on over.” Clarence went on up the stairs

and turned right into the direction of the

stage of the Auditorium. Gary, Sam, and I

started walking on toward the Vocational

Building and Henry Peace came out of the

Teachers’ Lounge with the buffer. He left

the buffer there and joined us and we all

went to the Vocational Building. We waited

in front of the building for approximately

forty-five (45) minutes before Clarence

came out of the other building. He came out

the same door on the north side and walked

toward us for a way, then called Henry to

come get the key and unlock the door.

Henry unlocked the door and we went in.

We finished around 11:45 A.M. and

Clarence came back over to the Vocational

Building and told us that we could go home.

Clarence had a white towel around his

neck, and I said, "What’s the matter? You're

sweating too much." Clarence just said, "Ive

been working hard. He was acting nervous

and trying to hurry us out. Then he asked

me for the gray canvas work gloves that I

had found in the lunch room when we were

working down there, and said they were

his, so I gave them to him. He asked me if

we were through with the dolly, and I told

him "yes", and I went and got it for him.

Clarence and Henry then left the

Vocational Building and went back toward

the other building across the street. On

Tuesday, August 26, 1980, Clarence was

talking to Gary and me. Gary asked him

about the little girl who was killed at

Conroe High School on Saturday, and

A-87

Clarence said, "If they start asking me any

questions, I’m gonna get me a lawyer" [sic

in passim].

The vast majority of differences between

Sessum’s statement given before the walk-through and

the one given soon after can be characterized as being

the addition of facts neither present in the first

statement nor inconsistent with that statement. As

discussed above, such changes are not indicative of

improper influence. The only differences between the

statements which cannot be explained in this manner

is the assertion in the second statement that Cheryl

Fergeson arrived on the scene before applicant and the

placing of him there before her and the amount of time

between going to the vocational building and Henry

Peace getting the keys from applicant. These

differences are of minor importance. The walk-through

failed to shake Sessum’s testimony that applicant was

at the scene of the murder at approximately the time

that Fergeson was killed and that applicant was out of

the presence of the other janitors for a time sufficient

to kill Fergeson and to move her body to where it was

found in the auditorium. Thus, the facts essential to

the State’s case remained the same. Finally, because

Sessum did not testify at applicant’s second trial, the

one in which he was convicted and that now serves as

the basis for this writ, the walk-through could not have

produced false testimony by this witness.®

8One possible explanation for Sessum’s account changing

the amount of time that they waited at the vocational building for

the keys from five to forty-five minutes is testimony that Sessum

was napping during this period.

%Sessum is not without credibility problems. Since testify-

ing in the first trial, he has recanted his previous version of the

facts. He now maintains that Acreman and another man, presum-

ably Robinson, abducted the girl and forced her into the bathroom.

(Footnote continued on next page)

iS ine “Soa + , Ever. eee

A-88

Gary Acreman’s first statement, taken before the

walk-through, states:

We were asked to work Saturday. We show-

ed up at 7:30 AM. We started setting up the

cafeteria for Monday morning then went

looking for Clarence to see what else he

wanted us (John, Sam, Icke, and I) to do. As

we were coming back from the gym we

turned to look behind us and saw a girl,

Blonde girl going into the restroom.

Clarence showed up with several rolls of

toilet tissue we told him that-someone was

in the girls restroom. He told us to go over

to the vocational bld. so we could set up for

a meeting for Monday. All four of us went

over to the vocational bld. and didn’t see

Clarence for 45 minutes. We had to wait on

him for the key to get in. He called Icke

back over across the street and gave him

the key and I didn’t see Clarence anymore

until 11:45 and he told us to go home [sic in

passim].

(Footnote continued from previous page)

He attributes his change in testimony to an attack of conscience,

and the threats that caused him to testify in this previous manner

are no longer as important as being at peace with himself. Regard-

less of what the truth is, nothing suggests that the walk-through

produced these conflicting versions.

Sessum also testified at the writ hearing that he felt in-

timidated by Ranger Styles to conform his statement to those of

the other janitors. Even if this is true, Sessum’s failure to testify

at the trial underlying this writ precludes applicant from obtain-

ing relief based on Sessum’s participation in the walk-through.

The statement taken after the walk-through states:

On Saturday morning, August 23, 1980, we

got to our jobs at the Conroe High School.

Clarence Brandley, Samuel Martinez, John

Sessum, Henry Peace, and I were working

that day. Peace, Martinez, Sessum, and I

waited on the bench on the north side of the

high school for Clarence. Clarence is the

supervisor, and is the only one of the crew

who has keys to the doors. Clarence got

there around 7:40 A.M. and unlocked the

door on the north side of the building and

took us to the cafeteria. He told Henry

Peace to go buff the floor in the Teachers’

Lounge, and told Sammy, John, and I to

put all the tables and chairs back in the

cafeteria. Then Clarence unlocked the door

to the cafeteria from a hallway. Then he

went on into the cafeteria and unlocked a

side door of the cafeteria that opens into a

nallway of the Auditorium area. We fini-

shed around 9:30 A.M. or a little later, and

John, Sammy, and I left the cafeteria

through the same door as we had entered

and walked into the hallway area of the

Auditorium to wait for Clarnece to give us

our next assignment. We stood in the hall-

way just a short distance from the stairs

that go into the Choir Room area. We had

been there only two or three minutes when

a young white female with medium length

blonde hair came up the stairs from the

gym area and went on up the stairs to the

direction of the restrooms at the top of the

stairs. She went into the ladies’ room. We

saw Clarence coming up the stairs from the

gym and he had several rolls of toilet tissue

A-90

in his hands. He started on up the stairs to

the area of the restrooms, and I told him

there was a girl in the ladies’ restroom. He

said he wasn’t going in there and he then

told the rest of us to go on over to the

Vocational Building and that he would be

over in a lit-tle while. Clarence walked on

upstairs and turned right and walked

toward the door that leads to the stage area

of the Auditorium. This was approximately

9:40 A.M. We left and were walking down

the hallway and we saw Henry coming out

of the Teachers’ Lounge with the buffer. He

left the buffer there and went with us. The

four of us left the building through the

same door on the north side as we had

entered earlier. We went to the Vocational

Building and waited there in front of the

building for Clarence to come unlock the

door. Between 10:15-10:20, I went back over

to the Teachers’ Lounge and got a coke. I

got the coke and went right back out

through the same door on the north side of

the building and I didn’t see Clarence

anywhere in the area around the Teachers’

Lounge. When I got back to the Vocational

Building, I saw Clarence coming out of the

same door on the north side of the building.

He walked toward the Vocational Building

for a way, and stopped and called Henry to

come get the key. Clarence had a white

towel around his neck. I had never noticed

a towel around his neck before. After he

gave Henry the key, Clarence turned and

went back into the building through the

north side door. Henry unlocked the door

and we went on and finished setting up the

chairs for the custodial meeting scheduled

A-91

for Monday. At about 11:45, Clarence

returned to the Vocational Building and

told us we could go home. Clarence seemed

to be acting different than the last time I

had seen him over in the other building. He

seemed very nervous and seemed to want

us to hurry and go. I did not know what had

happened at Conroe High School until

Sunday morning when I read it in the

Conroe Courier. On Monday, August 25,

1980, the custodial meeting was set for 8:00

A.M. I arrived a little early, and I saw

Clarence and Henry there for the meeting. I

asked Clarence if he knew what the girl

looked like that was found deat at Conroe

High School and he said, “All I know is that

she had blonde hair." He never said

anything else about her. I also talked with

Henry before the meeting and was telling

him what I had read in the newspaper, and

Henry said, "I was the one who found her."

He said he found her in the Auditorium,

lying behind some plywood. Clarence was

standing about five (5’) feet from me when I

found her. The next time I- saw Clarence

was Tuesday, August 26, 1980. He told me

that he went down to Houston to take a

polygraph test. He also said that as far as

he knew, he passed it. Clarence also said "If

the officers question me anymore about it,

I'm going to get me a lawyer." I have

noticed that since Saturday, August 23,

1980, Clarence has been acting nervous. I

have not worked under him since that day,

but I have seen him. Clarence is the night

shift supervisor, and is the only one of the

crew who has a key to the doors. R.L.

Phillips is the day shift supervisor, and is

A-92

the only one of that crew who has a key to

the doors [sic in passim].

Each difference between Acreman’s first and

second statements is merely the inclusion of an

additional! fact not present in the first statement. As

explained above, such additions are not indicative of

improper influence and do not call the accuracy of

Acreman’s testimony into question.!° The record simply

does not support an inference that Acreman’s testi-

mony or statements were changed in any way as a

result of the walk-through. And, even if one does

believe that the walk-through tainted Acreman’s testi-

mony to some extent, it is absolutely unreasonable to

believe that the walk-through “conducted in this case

was s0 unnecessarily suggestive and conducive to irre-

parable mistaken identification" or testimony. Stovall,

388 U.S. at 301. Such is the high burden set out by the

Supreme Court, and applicant does not meet it.

Sam Martinez’s first statement, given before the

walk-through, states:

Went to work around 7:35 A.M. in cafeteria

to put table and chairs in cafeteria. Fin-

10Like Sessum, Acreman has subsequently changed his

story about what occurred on the day of the murder. On March 17

and 20, 1987, Acreman said that he saw Dexter Robinson at the

school that day and that Robinson grabbed Fergeson and took her

into the bathroom. Since that time, Acreman has again changed

his version of events and claims that things happened in the

manner that he had previously testified. Nothing in the record

suggests that the walk-through is the source of these conflicting

statements. When Acreman first recanted, he attributed the

difference to a change of heart brought about by his conscience.

When he recanted this recantation, he attributed the different

story to intimidation on the part of applicant’s investigators. While

the accuracy of Acreman’s testimony is in serious doubt, the

doubts do not arise as a result of the walk-through.

A-93

ished in cafeteria sometime between hour of

9:00 A.M. and 9:30 A.M., not sure when.

Next went to look for Clarence, found him

coming up stairs with two rolis of toilet

paper or towel paper. Then saw blonde-

headed girl go to the girl’s restroom. She

had on blue jeans, medium hair. Next we

asked Clarence what to do, he told us to go

| across the street to the Vocational Building.

We did, and then we waited about 30 min-

utes before he came out the mail building

and called to the short man to come to get

key to the building. Then we set the chairs

up there, we finished this, then he came

and told us that we were finished, which

was about 11:00 A.M. or little after [sic in

passim].

In his second statement, Martinez said:

On Saturday, August 23, 1980, I arrived at

by job at the Conroe High School around

7:30 A.M. When I got there, Gary, John and

Henry were already waiting. We waited for

Clarence Brandley because he is the super-

visor and is the only one of us who has a

key to the door. Clarence got there around

7:30 A.M. He unlocked the door on the

north side of Conroe High School and we all

went in. Clarence took me, John, and Gary

to the cafeteria, and told Henry to go buff

the floor in the Teachers’ Lounge. Clarence

unlocked the door to the cafeteria and told

us to put the tables and chairs back in

there. Then he unlocked the side door of the

cafeteria that opens into the hallway area

of the gym. We set up all the tables and

chairs and finished at approximately 9:30

A-94

A.M. Then Gary, John, and I came out of

the cafeteria through the same door as we

had entered, and walked on down the hall-

way of the Auditorium area to wait for

Clarence to give us our next assignment.

We waited in the hall just a short way from

the stairs that lead up to the choir room.

There are also two restrooms at the top of

the stairs. The ladies’ restroom is the one

nearest the stairs, and the other one is for

men. We had only been standing there for a

few minutes when I saw a girl going up the

stairs toward the restrooms. She was a

young white female, with shoulder length

blonde hair. She was wearing blue jeans

and a wide leather belt that looked like a

cowboy belt with some type carving, maybe

a name on the back. She went on up the

stairs and went into the ladies’ restroom.

Clarence came up the stairs from the gym

and was carrying some toilet tissue. He

started on up the stairs toward the rest-

room and Gary hollered out to him that

there was a girl in the restroom. Clarence

said he wasn’t going in the restroom and for

us to go on over to the Vocational Building

and he would be over in a little while. We

started walking on over to the Vocational

Building and Henry had finished in the

Teachers’ Lounge, and he joined up with us.

We left the building through the same door

on the north side and went across the street

to the Vocational Building and waited for

Clarence to come unlock the door. We wait-

ed for approximately forty to forty-five (40-

45) minutes for Clarence to come unlock the

door. Sometime after 10:30 A.M., Clarence

came out of the building on the north side

A-95

and walked toward the Vocational Build-

ing for a short way, and then called Henry

to come get the key. Clarence turned

around and went back into the building

through the north side. Henry unlocked the

door and we set up the vocational building

for a custodial meeting on Monday, August

25, 1980. We finished the building around

11:30 A.M. and Clarence came in and

checked the building and told us we could

to home. We started to leave and Clarence

told John that the gloves he had found

early that morning were his, and that he

wanted them. John gave the gloves to him.

Tney were gray canvas type work gloves.

Then Clarence got a dolly from the Voca-

tional Building and he and Henry went

back over to the other building across the

street and went back inside through the

north door and I went home [sic in passim].

The two statements of Sam Martinez are essen-

tially identical to those of Sessum, with the exception

that Martinez did not change his estimate of the time

they waited at the vocational building for keys. The

only difference between the two statements, other than

in-clusion of additional details, is the order in which

ap-plicant and Fergeson arrived at the bathroom.

Again, this is a minor difference and does no damage to

the essential evidence relied upon by the State.

Nothing suggests that the walk-through lead to an

"irreparable" influence on Martinez’s testimony, as

required by Stovall, 388 U.S. at 301-02, 87 S.Ct. at

1972-73.11

11As noted by the majority, Martinez has since changed

certain details in his testimony. Nothing in the record suggests

that these changes were related to any corrupting influence of the

walk-through.

A-96

While there are almost insurmountable credi-

bility problems with the testimony of Acreman and

Sessum, which in turn might implicate Martinez’s test-

imony, these credibility problems do not stem from the

walk-through. Because of this, applicant should not be

granted relief based on the walk-through.

The second factual occurrence that the majority

uses to grant relief is Henry Peace’s testimony at the

hearing that he was intimidated and physically abused

by Ranger Styles. Peace’s first statement to the police,

taken before Ranger Styles arrived in Conroe and the

walk-through was conducted, is consistent with a state-

ment later given to Ranger Styles and his testimony at

both trials and the writ hearing. In fact, Peace testified

at the hearing that he is now telling the truth about

what he saw at the school on the day of the murder and

that he has told that same story in every statement he

has given and on every occasion he has testified. Thus,

if Peace is to be believed, as the hearing judge has

decided to do, then Style’s intimidating tactics did not

produce any unreliable testimony. Because of Peace’s

testimony, this alleged constitutional defect in the

investigation is not constitutionally material and

entitles applicant to no relief.12

12As a collateral matter, not raised in applicant’s writ, the

majority suggests that the State knowingly used perjured

testimony when Peace testified at trial, and they note that the

hearing judge found that Peace perjured himself at trial. In order

to reverse a conviction because of the use of perjured testimony,

the defendant must establish that the perjured testimony was

"known to be such by representatives of the State.” Napue v.

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 177, 3 L.Ed.2d 1217

(1959); Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. Assuming,

arguendo, that this issue is properly before this Court, applicant

fails to prove a knowing use of perjured testimony.

At the hearing, Peace admitted to having lied twice under

oath. At the first trial, he lied about an incident, not connected

(footnote continued on next page)

A-97

The final incident relied upon by the majority

concerns a statement given by Cheryl Bradford that

she observed two men in the gym near the time of the

murder. As stated above, to grant applicant relief based

on this allegation!? would require us to find that

(footnote continued from previous page)

with the murder, in which he showed a fellow janitor a handgun

while at school. He said that he had displayed a picture of a gun

rather than an actual gun. At the second trial, the State made it

known to the jury that Peace had shown a real gun, and the jury

heard such testimony directly from Peace. There is nothing to

suggest that the State knowingly used this perjured testimony. To

the contrary, when the State learned of the inaccuracy they

corrected the erroneous testimony in a forthright and candid

manner. The Supreme Court has implicitly stated that such a

procedure would not violate the constitution. See Napue, 360 U.S.

at 269, 79 S.Ct. at 1177.

The second incident of perjury has much more serious im-

plications. At trial, Peace was asked standard questions about the

voluntariness of his testimony and the absence of any coercion.

Peace said he had not been threatened in any way. Prior to trial,

however, Peace had complained to the District Attorney’s office

about Styles physically abusing and threatening him. Thus, when

Peace answered these questions, he lied. I do not feel that this

incident constitutes the knowing used of perjured testimony. The

District Attorney's position has consistently been that Peace’s

accusations are false. Ranger Styles denies that he threatened

Peace, and there is simply no other evidence pointing in either

direction. While the record supports the hearing judge’s finding

that Styles assaulted Peace, it also supports the opposite finding.

To this extent, the State has a legitimate argument that they did

not knowingly use perjured testimony. Our acceptance of the hear-

ing judge’s factual findings does not make those findings true in

some objective sense, nor does it mean that all parties, at all

times, believed or had knowledge of the facts as determined in

Judge Pickett’s order. There is no factual basis for the majority's

assertion that the State knew this testimony to be false, and the

trial judge made no such finding.

13Applicant does not allege in his writ that failure to

disclose Bradford’s statement constituted a Brady violation.

(Footnote continued on next page)

A-98

Bradford’s statement is exculpatory, to applicant, and

is material. Brady, 373 US. at 87, 83 S.Ct. at 1196-97.

First, I begin by noting that Bradford’s

statement is not exculpatory. Proof that one or more

individuals other than applicant participated in the

commission of this offense would not exclude the

possibility of applicant’s guilt. Black’s Law Dictionary

provides the following definitions:

Exculpatory. Clearing or tending to clear

from alleged fault or guilt; excusing.

** *

Exculpatory statement. A _ statement

which tends to justify, excuse or clear the

defendant from alleged fault or guilt.

Testimony of the presence of these two men at the gym

neither tends to justify applicant’s actions nor is it

inconsistent with his guilt. Even if the two men partici-

pated in the crime, something to which Bradford does

not and cannot testify, all evidence stiil placed appli-

cant at the scene of the crime; applicant was still the

only black male at the school who might have been the

donor of the hairs on Chery! Fergeson’s body; applicant

was still separated from the other janitors at the time

the victim’s body was placed in the auditorium; and,

there would still be evidence that applicant knew the

location of the victim’s body before it was found by

(Footnote continued from previou page)

Instead, he argues that the failure to investigate the statement is

evidence of the blind focus of the State’s investigation. As dis-

cussed above, failure to explore possible leads is not a constitu-

tional violation. Youngblood, ___ U.S. at ___, 109 S.Ct. at 338; see

also note 3, ante.

A-99

Peace. Bradford’s ominous testimony that the man she

saw in the gym might have been Dexter Robinson does

not help applicant because the State did not learn of

Robinson’s possible involvement until years after

applicant was convicted. For these reasons, I do not

believe that Bradford’s statement was exculpatory.

In addition, even if exculpatory, Bradford’s

testimony was not material. In order to be material,

the majority would have to find that there is a

"reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different." Bagley, 473 U.S. at 682,

105 S.Ct. at 3383. Instead of undertaking this required

analytical step, the majority leaps from a finding that

the statement was exculpatory to the conclusion that

applicant is entitled to relief. I cannot imagine that the

revelation of this minor piece of evidence would have

swung this entire prosecution around to an acquittal. I

challenge the majority to set out a reasonable scenario

in which such a change in result would be more likely

than not. Short of such a scenario, the majority should

not have granted relief based on this issue.

III.

In the third claim filed and set, applicant alleges

facts to support a claim that "Texas’ death penalty sys-

tem, as applied, discriminates against black defendants

in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution.” Al-

though this claim is based on McClesky v. Kemp, 481

U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), appli-

cant alleges facts in addition to statistical evidence that

black defendants are more likely to receive the death

penalty. The hearing judge entered the following find-

ings of fact in regard to this claim:

he The Petitioner, Clarence

Brandley, is a black man.

2. The victim, Cheryl Fergeson,

was 16 year old white girl.

3. Dr. Sheldon Ekland-Olson,

testified at the evidentiary hearing as an

expert witness. Dr. Ekland-Olson is a fac-

ulty member at the University of Texas at

Austin. He holds a doctorate degree in

Sociology and also attended Yale Law

School.

Dr. Ekland-Olson conducted a re-

search project which analyzed the applica-

tion of the death penalty in Texas during

the years 1974-83, the first decade of the

"new" Texas death penalty statute. Unlike

the death penalty statutes in other states

such as Florida and Georgia, the Texas

statute is a "structured" or "guided dis-

cretion" statute, designed to eliminate the

racial disparity in the application of the

death penalty which the Supreme Court

found offensive and unconstitutional in

Furman v. Georgia [408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972)].

Using data collected from the several

hundred Texas capital convictions which oc-

curred during the first decade of the post-

Furman statute, Dr. Ekland-Olson sought

to determine whether Texas’ new guided

discretion statute was in fact being applied

in a nondiscriminatory manner.

A-101

After accounting for the significant

variables, Dr. Ekland-Olson’s analysis of

the data revealed the Texas death penalty

statute, as applied, has not produced non-

discriminatory results. Significant race-

linked discrimination exists[,] in that

capital cases involving white victims are

more likely to precipitate the death penalty

than cases involving the black victims.

The research regarding rape homi-

cides in Texas, the offense for which

Petitioner was convicted, reveals that the

most likely person to receive the death

penalty in Texas is a black man convicted of

the rape homicide of a white woman.

Taking into account all of the various

offenses eligible for the death penalty in

Texas, and all of the many possible

offender/victim racial combinations, the

probability of being executed in Texas is

increased five fold for a black man

convicted of the rape homicide of a white

woman.

The research of Dr. Ekland-Olson,

establishing that the Texas death penalty

statute has produced victim-based racial

discrimination, is consistent with the other

research done in Texas and throughout the

country, particularly the sophisticated

Baldus study which the Supreme Court

accepted as statistically valid in the

McClesky case. [481 U.S. 279, 107 S.Ct.

1756, 95 L.Ed.2d 262 (1987)]

4. The jury in Petitioner’s first

trial was all white. The State had used

A-102

peremptory challenges to strike all

qualified blacks.

5. The jury in Petitioner’s second

trial was all white. The State had used

peremptory challenges to strike all

qualified blacks.

6. At the time of Petitioner’s first

and second trials, the District Attorneys

[sic] Office in Montgomery county utilized

several prosecution manuals. The manuals

were resource or reference books which in-

structed the prosecutors on all aspects of

how to try a criminal case. The manual

recommended that black persons not be

allowed to serve on any criminal jury.

. 3 At the time of Petitioner’s first

and second trials, a routine or practice

existed in the Montgomery County District

Attorney’s office that all black persons were

to be stricken from the jury panel when

there was a black defendant. Had any

Assistant District Attorney allowed a black

person to serve as a juror, the District

Attorney, James Keeshan, would have re-

quired that assistant to explain why he de-

parted from standard practice by allowing a

black person to serve on a criminal jury.

8. No lawyer having practiced in

Montgomery County can recall a black

person every be-ing permitted to serve on a

jury when there was a black defendant,

except one instance in 1978 when a black

Conroe police officer was allowed to serve

on a jury.

Pt ee ae ee ee er.

A-103

9. The jury at Petitioner's first

trial ultimately became deadlocked 11 to 1

for conviction. The lone holdout, William

Shreck, failed to vote for conviction because

he felt that the State had not proven

Petitioner's guilt beyond a _ reasonable

doubt. During the deliberations, the other

jurors repeatedly called William Shreck a

“Nigger [sic] lover." After a mistrial was

declared, William Shreck received

thousands and thousands of harassing

phone calls. During the first month, the

harassing calls would arrive every five

seconds when the phone was left on the

hook. On those occasions when the phone

was answered, the caller would exclaim

"nigger lover" and then hang up.

In April of 1987, six years after the

mistrial was declared, William Shreck ap-

plied for the position of purchasing agent

for Montgomery County. Of the seventy-odd

applicants for the job, William Shreck was

selected as one of the several finalists. Mr.

Shreck had considerable experience based

on the thirty-odd years he was employed as

a purchasing agent for an oil company in

Houston. As a finalist, the five district

judges and the county commissioner of

Montgomery County interviewed William

Shreck. During the 45 minute

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