CAPITAL CASE

No. 19-_____

In the Supreme Court of the United States

RODNEY REED,
Petitioner,

v.

Texas,
Respondent.

On Petition for a Writ of Certiorari

to the Court of Criminal Appeals of Texas

PETITION FOR A WRIT OF CERTIORARI

BARRY C. SCHECK
BRYCE BENJET
Counsel of Record CLIFF C. GARDNER
[email protected] ROBERT A. WEBER
[email protected] MICHELLE L. DAVIS
THE INNOCENCE PROJECT NICOLE A. DISALVO
40 Worth St., Ste. 701 JULIANA R. VAN HOEVEN
New York, NY 10013 SKADDEN, ARPS, SLATE,
(212) 364-5980 MEAGHER & FLOM LLP
920 N. King St.
ANDREW F. MACRAE Wilmington, DE 19801
LEVATINO|PACE PLLC (302) 651-3000
1101 S. Capital of Texas Hwy.
Building K, Ste. 125
Austin, TX 78746
(512) 637-8565
 i

CAPITAL CASE

QUESTIONS PRESENTED

Question Presented No. 1

At Rodney Reed’s capital murder trial, the victim’s

fiancé, Jimmy Fennell, was a key witness for the
prosecution. Years later, Reed discovered that
Fennell (a prime suspect in the murder) made a prior
inconsistent statement to a sheriff’s officer about his
activities the night of the murder. Fennell was
subpoenaed to testify at a state habeas hearing on
Reed’s claim that the inconsistent statement was
suppressed in violation of Brady v. Maryland. At the
hearing, Fennell invoked his Fifth Amendment
privilege and refused to testify, preventing Reed from
confronting a key trial witness about the suppressed
exculpatory evidence. In denying Reed’s Brady claim,
the Texas courts made no mention of Fennell’s
appearance at the hearing or his invocation of his
Fifth Amendment privilege and refusal to testify.
The first question presented is:
When assessing under the Brady materiality
standard whether “disclosure of the suppressed
evidence to competent counsel would have made a
different result reasonably probable,”1 how should a
court consider the impact of a key trial witness’s
assertion of the privilege against self-incrimination
and refusal to testify when confronted with the
suppressed exculpatory evidence?

1 Kyles v. Whitley, 514 U.S. 419, 441 (1995).

 ii

Question Presented No. 2:

At Reed’s 1998 capital murder trial, the State

relied on the opinions of three forensic experts as its
central evidence of Reed’s guilt. In the proceedings
below, Reed raised a Due Process claim supported by
evidence that the State’s experts or their employing
agency had retracted or modified their opinions
implicating Reed because the opinions offered at trial
were scientifically invalid.
The second question presented is:
When expert testimony relied on by the State in a
criminal trial is later shown to be scientifically
invalid, what is the appropriate standard to assess
whether the State’s use of scientifically invalid expert
testimony was in violation of Due Process?

Question Presented No. 3:

Does the conviction or execution of a person who is

actually innocent of the crime violate the United
States Constitution?
 iii

PARTIES TO THE PROCEEDINGS BELOW

The petition arises from a state habeas corpus

proceeding in which Petitioner, Rodney Reed, sought
relief from the Texas Court of Criminal Appeals.

LIST OF RELATED PROCEEDINGS

Reed v. Goertz, No. 1:19-cv-00794-LY (W.D. Tex.)

(filed Aug. 8, 2019)

State v. Reed, No. 8701 (Texas 21st District May 29,

1998) (ORDER ON CONVICTION AND SENTENCE OF
DEATH)

Ex parte Rodney Reed, No. 8701 (Texas 21st District

May 27, 1999) (ORDER)

Reed v. State, No. 73,135 (Tex. Crim. App. Dec. 6,

2000), cert. denied, 534 U.S. 955 (2001)

Ex parte Rodney Reed, Nos. 50-961-01, 50,961-02

(Tex. Crim. App. Feb. 13, 2002) (ORDER) (Per curiam)

Ex parte Rodney Reed, Nos. 50-961-03 (Tex. Crim.

App. Oct. 19, 2005) (Per curiam)

Ex parte Rodney Reed, 271 S.W.3d 698 (Tex. Crim.

App. 2008)

Ex parte Rodney Reed, Nos. 50-961-04, 50-961-05

(Tex. Crim. App. Jan. 14, 2009) (Per curiam)

Ex parte Rodney Reed, No. 50-961-06 (Tex. Crim.

App. July 1, 2009) (Per curiam)
 iv

Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. June

15, 2012) (REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE)

Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept.

26, 2012) (ORDER ON REPORT AND RECOMMENDATION),
aff’d, Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014)

Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014),

r’hearing denied, (5th Cir. Mar. 14, 2014), cert.
denied, 135 S.Ct. 435 (2014)

State v. Reed, No. 8701 (Texas 21st District Nov. 25,

2014) (TRANSCRIPT)

State v. Reed, No. 8701 (Texas 21st District Dec. 12,

2014) (FINDINGS OF FACT AND CONCLUSIONS OF LAW)

Ex parte Rodney Reed, No. 50-961-07 (Tex. Crim.

App. Feb. 23, 2015) (ORDER ENTERING STAY OF
EXECUTION) (Per curiam)

Reed v. State, No. AP-77054 (Tex. Crim. App. June

29, 2016) (ORDER FOR REMAND) (Per curiam)

Reed v. State, 541 S.W.3d 759 (Tex. Crim. App. 2017),

cert. denied, 138 S.Ct. 2675 (2018)

Ex parte Rodney Reed, Nos. 50-961-07, 50,961-08

(Tex. Crim. App. May 17, 2017) (ORDER) (Per curiam)

Ex parte Rodney Reed, No. 50-961-08, Trial Court

Cause No. 8701 (Texas 21st District Jan. 8, 2018)
(ORDER)
 v

Ex parte Rodney Reed, No. 50-961-08, Trial Court

Cause No. 8701 (Texas 21st District Jan. 8, 2018)
(FINDINGS OF FACT AND CONCLUSIONS OF LAW)

Ex parte Rodney Reed, Nos. 50-961-08, 50,961-09

(Tex. Crim. App. June 26, 2019) (ORDER) (Per
curiam)
 vi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDINGS BELOW ......... iii

LIST OF RELATED PROCEEDINGS ...................... iii

TABLE OF APPENDICES ....................................... vii

TABLE OF AUTHORITIES ....................................... x

OPINIONS BELOW ................................................... 3

STATEMENT OF JURISDICTION ........................... 3

CONSTITUTIONAL PROVISIONS .......................... 3

STATEMENT OF THE CASE ................................... 4

A. The Theory Upon Which The State

Obtained Reed’s Conviction. ......................... 4

B. The CCA Affirmed Reed’s Conviction

And Denied Post-Conviction Relief
Based On The Strength Of Now
Recanted And Demonstrably False
Testimony. ..................................................... 9

C. Reed Demonstrated His Conviction

Was Obtained Through False
Testimony And Recanted Scientific
Opinions, And In Violation Of
Brady v. Maryland. ..................................... 10
 vii

D. Reed Demonstrated In His 2018

Petition That Nothing Remains Of
The State’s Case Against Him. ................... 15

E. The CCA Entered A Cursory Denial

Of Habeas Relief After A Four-Year
Stay Of Execution. ...................................... 23

REASONS FOR GRANTING THE WRIT ............... 24

I. THE TEXAS COURTS FAILED TO

CONSIDER FENNELL’S REFUSAL TO
TESTIFY WHEN CONFRONTED
WITH SUPPRESSED EXCULPATORY
EVIDENCE IN VIOLATION OF THE
SIXTH AND FOURTEENTH
AMENDMENTS. ........................................... 24

II. REED’S CONVICTION IS PREMISED

ON SCIENTIFIC EXPERT OPINIONS
THAT HAVE SINCE BEEN
RECANTED IN VIOLATION OF DUE
PROCESS. ...................................................... 29

III. REED’S CONVICTION OR

EXECUTION WOULD VIOLATE THE
UNITED STATES CONSTITUTION
BECAUSE HE IS ACTUALLY
INNOCENT OF THE MURDER OF
STACEY STITES. .......................................... 34

CONCLUSION ......................................................... 38
 viii

TABLE OF APPENDICES

Page

Order of the Texas Court of

Criminal Appeals
Ex Parte Rodney Reed v. State, Nos.
WR-50,961-08, WR-50-961-09
(Tex. Crim. App. June 26, 2019)..................... 1a

Findings of Fact and Conclusions of Law of

District Court
Reed v. State, No. 8701
(Texas 21st District Jan. 5, 2018) .................. 6a

Order of the Texas Court of

Criminal Appeals
Ex Parte Reed, Nos. WR-50,961-07,
WR-50,961-08
(Tex. Crim. App. May 17, 2017) ................... 43a

Opinion of the Texas Court of Criminal

Appeals
Reed v. State, No. 73,135
(Tex. Crim. App. Dec. 6, 2000) ..................... 56a

Opinion of the Texas Court of Criminal

Appeals
Ex Parte Rodney Reed, No. AP-75693
271 S.W.3d 689 (Tex. Crim. App. 2008) ....... 84a

Declaration of Roberto J. Bayardo, M.D.

(dated Aug. 31, 2012) .................................. 197a
 ix

Affidavit of Werner U. Spitz, M.D.

(dated Feb. 4, 2015) .................................... 202a

Letter Opinion of Michael M. Baden, M.D.

(dated Feb. 10, 2015) .................................. 208a

Affidavit of LeRoy Riddick, M.D.

(dated Jan. 10, 2015) .................................. 213a

Bode Cellmark Forensics Forensic

DNA/Biology Analysis Testimony Result of
Review (dated Jan. 11, 2018) ..................... 228a

Letter from Brady W. Mills, Assistant

Division Director, Crime Laboratory Service,
Law Enforcement Service Division, Texas
Department of Public Safety
(dated Apr. 30, 2018) .................................. 232a

Supplemental Application for Writ of Habeas

Corpus, (filed June 26, 2018, in Ex parte
Reed, WR-50,961) .................................................. 232a

Transcript From Trial of Rodney Reed

(Excerpts)
State v. Reed,
No. 8701 (Texas 21st District May 4-
18, 1998) ...................................................... 292a

Transcript From Hearing On Writ Of Habeas

Corpus (Excerpts)
State v. Reed,
No. 8701 (Texas 21st District, October
10-14, 2017) ................................................. 320a
 x

DRS Productions “Death Row Stories”

Interview With Curtis Davis
(April 14, 2016) ........................................... 354a

Affidavit of Alicia Slater

(dated Dec. 15, 2015) .................................. 422a

Affidavit of LeRoy Ybarra

(dated Jan. 15, 2015) .................................. 428a

Affidavit of Calvin “Buddy” Horton

(dated Mar. 2015)........................................ 431a
 xi

TABLE OF AUTHORITIES

CASES TAB NO.

Bagby v. Kuhlman,
932 F.2d 131 (2d Cir. 1991) ....................... 2, 26

Brady v. Maryland,
373 U.S. 83 (1963) .................................. passim

Brown v. United States,

356 U.S. 148 (1958) ........................................ 26

Carriger v. Stewart,
132 F.3d 463 (9th Cir. 1997) .......................... 36

Cornell v. Nix,
119 F.3d 1329 (8th Cir. 1997) ........................ 36

In re Davila,
888 F.3d 179 (5th Cir. 2018) .................... 33, 36

Duckett v. State,
918 So. 2d 224 (Fla. 2005) ............................. 28

Ex parte Elizondo,
947 S.W.2d 202 (Tex. Crim. App. 1996) ........ 36

Ex parte Reed,
2015 WL 831673 (Tex. Crim. App.
Feb. 23, 2015) ................................................. 11

Giglio v. United States,

405 U.S. 150 (1972) ........................................ 30
 xii

Gilbert v. California,
388 U.S. 263 (1967) .......................................... 2

Gimenez v. Ochoa,
821 F.3d 1136 (9th Cir. 2016) ........................ 32

Graves v. Cockrell,
351 F.3d 143 (5th Cir. 2003) .......................... 36

Han Tak Lee v. Houtzdale SCI,

798 F.3d 159 (3d Cir. 2015) ....................... 2, 32

Harshman v. Superintendent, State Corr. Inst.

at Rockview,
368 F. Supp. 3d 776 (M.D. Pa. 2019) ............ 27

Herrera v. Collins,
506 U.S. 390 (1993) .................................... 3, 36

House v. Bell,
547 U.S. 518 (2006) ........................................ 36

Jones v. United States,

202 A.3d 1154 (D.C. 2019) ............................. 31

Klein v. Harris,
667 F.2d 274 (2d Cir. 1981) ...................... 26-27

Kyles v. Whitley,
514 U.S. 419 (1995) .................................... ii, 24

In re Lawley,
179 P.3d 891 (Cal. 2008) ................................ 37
 xiii

Longus v. United States,

52 A.3d 836 (D.D.C. 2012) ............................. 30

Maryland v. Craig,
497 U.S. 836 (1990) ........................................ 26

Miller v. Comm’r of Corr.,

700 A.2d 1108 (Conn. 1997)........................... 37

Mitchell v. United States,

526 U.S. 314 (1999) ........................................ 26

Napue v. Illinois,
360 U.S. 264 (1959) ........................................ 30

People v. Washington,
665 N.E.2d 1330 (Ill. 1996) ............................ 37

Reed v. Thaler,
2012 WL 2254217 (W.D. Tex.
June 15, 2012) .......................................... 22, 35

State v. Beach
302 P.3d 47 (Mont. 2013) .......................... 36-37

State ex rel. Amrine v. Roper,

102 S.W.3d 541 (Mo. 2003) ............................ 37

Todaro v. Fulcomer,
944 F.2d 1079 (3d Cir. 1991) ......................... 26

United States v. Ausby,

916 F.3d 1089 (D.C. Cir. 2019) .................. 3, 32
 xiv

United States v. Butler,

278 F. Supp. 3d 461 (D.D.C. 2017) ................ 31

United States v. Cardillo,

316 F.2d 606 (2d Cir. 1963) ........................... 26

United States v. McGlory,

968 F.2d 309 (3d Cir. 1992) ....................... 2, 26

United States v. Williams,

2012 WL 38229 (D. Minn. Jan. 9, 2012) ....... 25

Vargas v. State,
781 S.W. 2d 356 (Tex. App.-Hous. 1989),
rev’d on other grounds, Vargas v. State,
838 S.W. 2d 552 (Tex. Crim. App. 1992) ....... 28

Williams v. State,
800 S.W.2d 364
(Tex. App.-Fort Worth 1990) ......................... 27

Wright v. Quarterman,
470 F.3d 581(5th Cir. 2006) ........................... 33

AUTHORITIES

28 U.S.C. §1257(a) ...................................................... 3

D.C. Code § 23-110 ................................................... 31

Texas Code of Criminal Procedure § 11.071 ............ 33

Texas Code Criminal Procedure § 11.073.............. 15

 PETITION FOR A WRIT OF CERTIORARI

Through his Actual Innocence, Brady, and other

Due Process claims, Rodney Reed asks this Court to
resolve important constitutional questions so that
Texas does not execute an innocent man. The Texas
Court of Criminal Appeals (the “CCA”) disposed of
Reed’s constitutional claims challenging his capital
murder conviction for the 1996 murder of Stacey
Stites in a terse and largely boilerplate decision that
referenced no legal authority. The summary decision
ignored uncontradicted evidence that completely
negates the State’s forensic-based case against Reed
at trial and instead implicates Stites’s fiancé, Jimmy
Fennell, who was a local police officer at the time, but
is now a convicted felon.
Reed now seeks review of the decision below
which wrongly, and under an inappropriately high
standard, rejected his comprehensive showing of
actual innocence. This Court should also review the
denial of Reed’s Brady and other Due Process claims
based on new evidence of (1) Fennell’s refusal to
testify at a state habeas hearing after being
confronted with a previously suppressed prior
inconsistent statement about his activities on the
night Stites was murdered, and (2) recantations by
all of the State’s forensic experts of their invalid
scientific opinions relied on at trial to link Reed’s
DNA with the murder.
First, this Court should clarify how the Brady
materiality standard applies when a trial witness
invokes the Fifth Amendment privilege in post-
conviction proceedings when confronted with
exculpatory evidence. The impact of a witness’s
 2

invocation of the Fifth Amendment privilege during a

trial is clear—Sixth Amendment confrontation rights
require that witness’s testimony to be disregarded.
See, e.g., United States v. McGlory, 968 F.2d 309, 344
(3d Cir. 1992); Bagby v. Kuhlman, 932 F.2d 131, 135
(2d Cir. 1991); accord Gilbert v. California, 388 U.S.
263, 272 (1967). Because this outcome is
constitutionally mandated to protect confrontation
rights in trials, the retrospective Brady materiality
standard requires that courts likewise consider the
severe consequences of a witness’s invocation of the
Fifth Amendment privilege when confronted with
previously suppressed exculpatory evidence—their
entire trial testimony should be disregarded.
Further, the Court should resolve a split in
authority as to the proper standard for considering
Due Process claims stemming from the use of invalid
scientific evidence to convict. While the reliance on
invalid scientific evidence as the primary proof of
guilt certainly would violate fundamental fairness,
see Han Tak Lee v. Houtzdale, 798 F.3d 159, 166 (3d
Cir. 2015), the adoption of the Napue standard better
reflects the uniquely prejudicial impact faulty
scientific evidence has on jury trials. See United
States v. Ausby, 916 F.3d 1089, 1092 (D.C. Cir. 2019).
 3

Finally, this Court should resolve the long-

standing question whether, and under what
circumstances, Due Process prohibits the conviction
or execution of an innocent person. See Herrera v.
Collins, 506 U.S. 390 (1993). Because Reed has
presented comprehensive evidence of innocence that
would at least satisfy traditional miscarriage of
justice standards, this Court should recognize that
both his conviction and possible execution are in
violation of Due Process.

OPINIONS BELOW

The June 26, 2019 order of the Texas Court of

Criminal Appeals under review is unreported.
(App.-1a.)2

STATEMENT OF JURISDICTION

The Texas Court of Criminal Appeals issued its

order on June 26, 2019. (App.-1a.) This Court has
jurisdiction under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS

The Fifth Amendment provides in relevant part

that “[n]o person ... shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property without due
process of law.” U.S. Const. amend. V.

2 The hearing judge signed, without modification, the State’s

proposed findings of fact and conclusions of law (App.-6a), but

those findings and conclusions were not adopted by the CCA.
(App.-4a.)
 4

The Sixth Amendment provides in relevant part

that “[i]n all criminal prosecutions, the accused shall
enjoy the right ... to be confronted with the witnesses
against him.” U.S. Const. amend. VI.
The Fourteenth Amendment provides in relevant
part that “nor shall any State deprive any person of
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend.
XIV.

STATEMENT OF THE CASE

A. The Theory Upon Which The State

Obtained Reed’s Conviction.
In April 1996, nineteen-year-old Stites lived in
Giddings, Texas with Fennell, a local patrol officer.
On April 22, Fennell insisted to Stites’s mother that
he was going to drive Stites to her early morning
shift at a grocery store in Bastrop, Texas the next
morning. (App.-87a.) When Stites failed to report to
work on April 23, Fennell told investigators that the
plan for him to drive her to work had changed and
that he had slept in and Stites left for work in his
truck at her usual time around 3:00 a.m. (App.-57a,
87a.)
Fennell’s truck was found in the Bastrop High
School parking lot that morning at 5:23 a.m. A
broken portion of Stites’s woven belt lay outside of
the locked driver side door. (App.-88a.) Stites’s body
was discovered that afternoon in the brush along an
unpaved road in Bastrop County. (App.-90a.) She had
been strangled, and the ligature mark was consistent
with the pattern of her belt. The other half of Stites’s
 5

belt was on the roadside, a t-shirt was strewn over

the brush above her body, and Stites’s employee
name tag was positioned in the crook of her knee.
(App.-91a-92a.) Vaginal swabs collected at the scene
and at autopsy revealed a small number of intact
spermatozoa. (App.-93a.)
Although Fennell was the last person to see Stites
alive, and he was supposed to have driven her to
work, officers never searched his and Stites’s
apartment (or even asked to do so). (App.-98a.)
However, investigators’ suspicions soon turned
towards Fennell. He was actively investigated as a
suspect for months, even though he was not a DNA
match to the semen found on the vaginal swabs.
(App.-98a.) Police interrogated Fennell aggressively
and repeatedly, and after he was twice found to be
deceptive on polygraph tests, Fennell invoked his
Fifth Amendment privilege, thus refusing to
cooperate in the investigation. (App.-166a,177a-
178a.)
In 1997, Reed was charged with Stites’s murder
when his DNA matched that obtained from a small
number of intact spermatozoa found in Stites’s body.
(App.-102a.) No other evidence—fingerprint, hair,
footprint, or DNA—connected Reed to Fennell’s truck
or the location where Stites’s body was found.
Using the timeline provided by Fennell, the State
theorized that Stites left Giddings in Fennell’s truck
around 3:00 a.m. on April 23 and drove toward
Bastrop. (App.-57a.) The State argued that Reed
somehow intercepted her and gained entry to the
truck, pulled Stites out of her seatbelt without
disengaging it, and then sexually assaulted and
strangled her in the truck without leaving any
 6

fingerprints, hair or other evidence in the truck. The

State claimed that Reed then drove to a back-country
road where he partially re-dressed Stites’s body,
dragged her into the brush, placed her employee
name tag in the crook of her knee, and left the other
separated half of Stites’s belt at the side of the road,
pointing toward Stites’s body. Then, Reed allegedly
drove the truck to the Bastrop High School parking
lot, locked it, and walked away, again leaving no
trace of having been in the truck. (App.-192a.)
The absence of evidence connecting Reed to either
crime scene was eclipsed by the State’s experts who
opined that the presence of three intact spermatozoa
on a vaginal swab proved that Stites was sexually
assaulted and murdered around 3:00 a.m. and,
therefore, those intact sperm could not have been
deposited consensually a day before her death, as the
defense claimed.
Pathologist Roberto Bayardo testified at trial that
Stites died by ligature strangulation at
approximately 3:00 a.m. on April 23, and that Stites
had been sexually assaulted at the same time. (App.-
93a-95a.)
Texas Department of Public Safety (“DPS”) crime
scene investigator, Karen Blakely, testified that she
surmised that Stites has been sexually assaulted
based on the placement of her clothing. She further
testified that she found three intact spermatozoa
around 11:00 p.m. on April 23, and concluded that
sex had occurred within 26 hours of when she saw
the spermatozoa based on “published documentation
that says that 26 hours is the outside length of time
that tails will remain on a sperm head inside the
vaginal tract of a female.” (App.-91a-93a.)
 7

The State’s retained expert, Meghan Clement, a

serologist with Bode Cellmark Forensics Laboratory
(“Cellmark”), testified that tails of spermatozoa break
off “after a short period of time” and that she had—in
over ten years of examining thousands of rape kits—
never found intact sperm more than 24 hours after
intercourse. (App.-103a-104a.)
In closing arguments, the State repeatedly
emphasized to the jury that the small amount of
Reed’s sperm proved he was the murderer:
[B]ingo, she finds three fully intact
spermatozoa. At that point she knows what
she’s got here. We all know what she’s got
here. Because we know, from the credible
evidence, that that doesn’t hang around for
days on end. We know from the credible
evidence that that tells you that that semen
got in that girl’s body within 24 hours of that
eleven o’clock moment. Which is when? On
her way to work.
(App.-307a.) The State further emphasized that its
experts’ testimony that the semen was inextricably
linked to a sexual assault that occurred
contemporaneously with the murder refuted Reed’s
defense that he and Stites had an interracial
relationship and had had consensual intercourse in
the days before her murder. (App.-309a, 312a.) This
was not lost on the jury, which asked to see Dr.
Bayardo’s testimony and included a question about
his opinion on the life expectancy of intact sperm.
 8

(App.-371a) The judge responded by reading several

portions of Dr. Bayardo’s testimony to the jury.3
Fennell uses the Fifth Amendment like an
umbrella in a windstorm. Before Reed was arrested,
Fennell invoked the privilege when asked questions
about his involvement in Stites’s death. (App. 166a,
177a-178a.) But once Reed was on trial, Fennell
changed gears and waived his Fifth Amendment
privilege and testified to a timeline that exculpated
himself and supported the State’s case against Reed.
The State relied on Fennell to establish that Stites
was abducted while driving to work around 3:00 a.m.
(App.-312a, 316a.) The State also relied on Fennell to
discredit Reed’s defense that he and Stites had
recently had consensual sex, including emphasizing
Fennell’s testimony that he and Stites had showered
together the night she was murdered, but were not
engaging in sexual relations, to infer that Reed and
Stites had not been together the day before her
murder:
Jimmy told you that Stacey was on the green
pill at the time of her death so they weren't
engaging in any kind of sexual relations, but
they expect you to believe that she would go
out and do that with [Reed]?
(App.-313a.)
On May 18, 1998, an all-white jury (the prosecutor
struck the only two African-Americans from the

3
Although the jury note asked specifically about sperm in
the anal cavity, the judge read testimony about Dr. Bayado’s
examination of intact sperm on the vaginal slides. (App.-318a.)
 9

venire) convicted Reed of the sexual assault and

murder of Stites and thereafter sentenced him to
death. (App.-108a.)
B. The CCA Affirmed Reed’s Conviction
And Denied Post-Conviction Relief
Based On The Strength Of Now
Recanted And Demonstrably False
Testimony.
The CCA affirmed Reed’s conviction and death
sentence on direct appeal in 2000 based on the
timeline provided by Fennell and the “strength” of
the State’s expert witnesses. (App.-56a.) Specifically,
the CCA adopted Fennell’s testimony that Stites left
for work around 3:00 a.m. on April 23, 1996, and
further concluded that “[g]iven the strength of the
DNA evidence connecting appellant to the sexual
assault on Stites and the forensic evidence indicating
that the person who sexually assaulted Stites was
the person who killed her, a reasonable jury could
find that appellant is guilty of the offense of capital
murder.” (App.-57a, 66a.)
The CCA also relied on the strength of the State’s
experts when finding other trial error to be harmless
because “[t]he pathologist indicated that the donor of
the semen was likely also the murderer, because the
condition of Stites’ body indicated that the sexual
assault occurred at the time of the murder.” (App.-
77a, 79a.)
Thereafter, Reed presented the CCA with new
evidence in state habeas proceedings, including
evidence that Fennell was extremely prejudiced
against African-Americans and violent toward
women (he pled guilty to kidnapping and other
 10

charges and served a 10-year prison sentence for

raping a woman he was dispatched to protect), that
Fennell had told a colleague that he would strangle
Stites with a belt if he discovered her cheating, and
that Fennell knew of Reed and Stites’s relationship.
(App.-117a, 183a.) Although the CCA recognized that
the new evidence “may indeed arouse a healthy
suspicion that Fennell had some involvement in
Stacey’s death,” it denied relief based on the evidence
of a sexual assault and an estimated time of death of
3:00 a.m. (App.-93a, 188a.)
C. Reed Demonstrated His Conviction Was
Obtained Through False Testimony And
Recanted Scientific Opinions, And In
Violation Of Brady v. Maryland.
On February 13, 2015, Reed filed a successive
state habeas petition (the “2015 Petition”) after
amassing powerful new evidence of innocence. First,
Dr. Bayardo retracted his trial testimony concerning
the key aspects of the State’s case, critically (i) the
time of Stites’s death, (ii) the existence of a sexual
assault, and (iii) the length of time sperm can remain
intact. (App.-197a.)
Second, three of the nation’s most experienced
and respected pathologists—Drs. Michael Baden,
Werner Spitz, and LeRoy Riddick—each determined
that the State’s theory of Reed’s guilt was medically
and scientifically impossible. (App.-202a-227a.)
Specifically, these experts demonstrated that the
forensic evidence proves that (i) Stites was murdered
before midnight (when Fennell claimed the two were
home together), (ii) Stites was not sexually assaulted,
and (iii) Reed’s DNA was deposited at least a day
before her murder.
 11

Third, new witnesses with no affiliation to Reed

came forward to confirm a relationship between Reed
and Stites. (App.-422a-434a.) This new scientific and
other evidence, especially when considered with
previous evidence, established Reed’s actual
innocence and his right to habeas relief for
constitutional violations and pursuant to article
11.073 of the Texas Code of Criminal Procedure. On
February 23, 2015, the CCA stayed Reed’s execution,
but took no immediate action on the case. Ex parte
Reed, 2015 WL 831673, at *1 (Tex. Crim. App. Feb.
23, 2015).
Reed’s 2015 Petition had been pending without
action in the CCA for a year when he discovered that
Officer Davis, a Bastrop Sheriff’s Officer, had given
an interview to a CNN program describing a
previously undisclosed conversation between Davis
and Fennell on April 23, 1996. Davis described an
account by Fennell—given after Stites was reported
missing, but before her body was found—of his
whereabouts the night Stites was murdered that
differed substantially from both the investigator’s
notes of Fennell’s story obtained by the defense and
Fennell’s trial testimony.
Reed later discovered that, at the Bastrop District
Attorney’s request, Davis was disciplined for telling a
journalist what he knew. (App.-340a.) Davis received
a month’s unpaid suspension based on formal
findings that his speaking with CNN “could bring
influence to a cause for a retrial” and because Davis
“did not prepare a supplemental report [about what
Fennell told him] or notify his supervisor regarding
the need for such a report.” (App.-338a, 342a-343a.)
On June 6, 2016, Reed filed an additional habeas
 12

petition (the “2016 Petition”), asserting Brady and

false testimony claims based on this new
information.
Almost a year later, on May 17, 2017, the CCA
issued a cursory order, dismissing Reed’s 2015
Petition as an abuse of the writ, stating in conclusory
fashion and without analysis that Reed “failed to
make a prima facie showing on any of his claims.”
(App.-45a.) The CCA also concluded that Reed failed
to make a prima facie showing of innocence in his
2016 Petition, but that he had made the requisite
showing on the Brady and false testimony claims
related to Fennell’s trial testimony. The CCA
remanded those claims to the District Court for an
evidentiary hearing. (App.-45a-46a.)
In October 2017, a four-day evidentiary hearing
was held. At the hearing, Davis identified a
transcript of his CNN interview and adopted it as his
testimony. (App.-344a.) Davis’s account of his
conversation with Fennell only hours after Stites was
reported missing is dramatically different from
Fennell’s statements to police and his later trial
testimony.
x At trial, Fennell testified that, after attending
baseball practice, he stayed home that evening
with Stites, they showered together before she
went to sleep, and that Fennell stayed up a
while longer watching TV before retiring.
(App.-293a.)
But Fennell told Davis that he went out
drinking with other officers that night. Fennell
claimed that he stayed out late so as not to
 13

disturb Stites, who had an early work shift.

(App.-347a, 386a.)
x Fennell testified that, after first insisting to
Stites’s mother that he would drive her to
work in the morning, the two changed their
plans and agreed that Fennell would sleep in
the next morning and that she would drive
herself to work. (App.-295a);
But Fennell told Davis that he had planned to
drive Stites to work, but overslept because he
had been out drinking. (App.-385a.)
These two irreconcilable stories from Fennell
about where he was and what he was doing on the
night of April 22, 1996 fly in the face of the State’s
arguments to the jury highlighting the consistency of
Fennell’s testimony: “[i]t’s important to note that
nobody could ever find anything inconsistent with
what he told you. Nobody.” (App.-316a.)
When Reed called Fennell as a witness at the
2017 hearing, Fennell declined to take the witness
stand and, instead, provided a declaration stating in
relevant part:
If I am called to testify and asked any
questions regarding the subject matter of
(A), the murder of Stacey Stites; (B), any
statements I may have made regarding my
activities and whereabouts on April 22nd-
23rd, 1996; (C), the investigation of the
murder of Stacey Stites; or (D), the
prosecution and trial of Rodney Reed for the
murder of Stacey Stites, I will not answer
the questions. Instead, I will respond to each
question regarding the subjects by stating
 14

that, “On advice of counsel, I am declining to

answer the question based on my Fifth
Amendment right not to testify.” (App.-
325a-326a).
The District Court then granted, over Reed’s
objection, the State’s request that “no adverse
inference” be drawn from Fennell’s refusal to testify.
(App.-327a.)
On December 22, 2017, the District Court signed,
without modification, the Findings of Facts and
Conclusions of Law proposed by the State (the
“Findings”). Incredibly, the Findings (which the CCA
reviewed but did not adopt) parse with great care
Davis’s testimony regarding what Fennell did and
did not say to Davis about the events the night of
Stites’s murder, but fail to even mention that Fennell
appeared but refused to testify. (App.-4a, 9a-10a,
26a-27a.)
The Findings also acknowledge that Dr. Baden
opined that “Stites was dead before midnight on
April 22, 1996 [when Fennell claimed the two were
home together]; that there is no evidence from the
autopsy or photos of Stites that she was sexually
assaulted; and that Stites was dead in Fennell’s
truck for at least four to five hours before being left
at the location where she was found.” (App.-12a.) The
Findings tellingly avoid discrediting Dr. Baden’s
testimony, concluding instead that his “opinions are
not material.” (App.-39a.) This is hard to reconcile
with the fact that Dr. Baden provided scientific proof
(which the State did not rebut) that demonstrated
both Fennell’s motive to lie (given that Stites was
killed when he testified they were home together)
and that his testimony that Stites left of her own
 15

volition on the morning of April 23 had to have been

false.
While not mentioned in the Findings, Reed also
admitted affidavits from Drs. Spitz and Riddick that
supported Dr. Baden’s testimony, as well as Dr.
Bayardo’s declaration recanting his trial testimony.
(App.-197a, 202a, 213a.) Nevertheless, the Findings
conclude that Dr. Baden’s testimony was immaterial
because it merely conflicted with Dr. Bayardo’s
(recanted) trial testimony. (App.-39a-40a.) Because
Dr. Bayardo recanted his opinion as to the time of
death, Fennell was the State’s only witness that
could support its theory that Stites was killed on her
way to work—and Fennell has again hidden behind
the Fifth Amendment.
D. Reed Demonstrated In His 2018 Petition
That Nothing Remains Of The State’s
Case Against Him.
While Reed’s 2016 Petition remained pending
before the CCA, the agencies that employed Blakely
and Clement issued letters that discredited their
opinions—opinions that left the jury with the false
impression that the deposit of Reed’s sperm occurred
within 24 hours of being tested, and was therefore
contemporaneous with the murder. On June 26,
2018, Reed filed a subsequent petition (the “2018
Petition”) asserting that this new evidence, in
conjunction with other evidence, raised a prima facie
case of innocence and also constituted changed
scientific opinions pursuant to articles 11.071 and
11.073 of the Texas Code of Criminal Procedure.
Thus, as of June 26, 2018, at the latest, Reed had
disproven every aspect of the State’s case.
 16

1. Stites Could Not Have Been Murdered

On Her Way To Work At 3:00 a.m., As
Fennell Claimed, Because She Was
Dead Before Midnight.

A key theory of the case at trial and upon which

Reed’s conviction has been upheld depended on
Fennell’s and Dr. Bayardo’s testimony to infer that
Stites was murdered after 3:00 a.m. on April 23,
1996. (App.-108a.) At trial, the State emphasized this
fact to the jury:
[W]e know that she didn’t get killed at
midnight the night before or seven o’clock
or whenever the night before because Dr.
Bayardo tells us that, that Stacey died
within an hour of three o'clock.”
(App.-316a.)
Neither Fennell nor Dr. Bayardo stands by his
testimony today. Fennell refuses to testify and Dr.
Bayardo has recanted his testimony on this crucial
point. In his declaration, Dr. Bayardo stated that his
estimated time of death “should not have been used
at trial as an accurate statement of when Ms. Stites
died.” (App.-276a-277a.)
Drs. Baden and Spitz have explained in detail
why the forensic evidence proves that Stites was
murdered before midnight on April 22, hours before
she was scheduled to leave for work, and when
Fennell claimed the two were home together.
Dr. Spitz explained his opinion that Stites was
murdered hours before her body was left in the brush
where it was found—sometime before midnight:
 17

My review of the autopsy report, autopsy

photos, crime scene photos, crime scene
video, and report of crime scene investigation
leads me to conclude that Stacey Stites was
murdered prior to midnight on April 22, 1996
(the night before her body was found). (App.-
280a.)
The presence of lividity in these non-
dependent areas makes it medically and
scientifically impossible that Stites was
killed between 3-5 a.m. on the date in
question. ... It is impossible that Stites was
murdered and left at the scene in the two-
hour time frame asserted by the State at
trial.
(App.-281a.)
Dr. Baden likewise explained that the presence of
non-dependent lividity on the front of Stites’s body
was evidence that Stites was killed 4-6 hours prior to
her body being removed from the truck and dragged
into the brush. (App.-288a.) Dr. Baden also noted
that the post-mortem purge fluid found in the truck
would take hours to develop, further indicating that
“she had been dead for a number of hours, before
midnight, when she was placed in the passenger
seat.” (App.-288a.)
The foregoing forensic evidence supports that
Fennell lied about the events that occurred the night
of April 22, 1996, to his best friend Officer Davis, the
police and, later, the jury. His now-contradicted
testimony was crucial to the State’s case, and the
State emphasized his consistency in closing
argument. (Supra at 12-13.) But now, when he might
 18

be confronted with his prior statements, Fennell

refuses to testify.

2. Stites Was Not Sexually Assaulted By

Reed.

A second key opinion that the State repeatedly

emphasized to the jury (and the CCA has repeatedly
cited) is Dr. Bayardo’s testimony that Stites was
sexually assaulted while she was being strangled
with her belt:
We know that the sodomy occurred at the
time of Stacey’s death; and we know that the
semen got in her body at the time of her
death; and we know that whoever raped
Stacey also killed her.
He said ... whatever happened to this young
girl had not happened consensually, based on
everything he saw.
Came to her death as a result of asphyxia
due to ligature strangulation–the last four
words are most important for right now–
associated with sexual assault.
(App.-307a-309a.)
Dr. Bayardo has since recanted his extremely
prejudicial testimony:
[T]he presence of spermatozoa in Ms. Stites’s
vaginal cavity was not evidence of sexual
assault. There was no indication that the
spermatozoa in Ms. Stites’s vaginal cavity
was placed there in any fashion other than
consensually. Also, because there was no
spermatozoa found in Ms. Stites’s rectal
 19

cavity, there is no evidence that any

spermatozoa was deposited in the rectal
cavity as a result of the sexual assault.
(App.-278a.)
Dr. Baden also found “no forensic evidence that
Ms. Stites was sexually assaulted in any manner” and
“no evidence of anal intercourse or of sexual assault.”
(App.-211a.) (emphasis added); see also (App.289a.)
(same opinion by Dr. Spitz).

3. Reed’s DNA Could Not Have Been The

“Smoking Gun” That Tied Him To The
Murder Because It Was Deposited
Consensually, Well-Before Stites Was
Killed.

Finally, the State relied on Dr. Bayardo, Clement

and Blakely to describe Reed’s DNA as the “smoking
gun” and “Cinderella slipper” based on the inference
that it could not have possibly have been deposited at
any time other than exactly when Stites was being
murdered. The notion that Reed’s DNA inextricably
linked him to Stites’s murder was premised on these
experts’ opinions that semen can remain intact for no
more than 24 hours and therefore had to have been
deposited simultaneously with Stites’s death. (App.-
306a-309a.)
These opinions are false and no one, including the
witnesses, supports them today. The agencies that
employed Blakely and Clement confirmed that their
testimony was scientifically invalid, as did Dr.
Bayardo:
If the prosecuting attorneys had advised me
that they intended to present testimony that
 20

spermatozoa cannot remain intact in the

vaginal cavity for more than 26 hours, and
argue that Ms. Stites died within 24 hours of
the spermatozoa being deposited, I would
have advised them that neither the
testimony nor the argument was medically
or scientifically supported.
(App.-217a.)
Dr. Bayardo further stated:
I am personally aware of medical literature
finding that spermatozoa can remain intact
in the vaginal cavity for days after death.
Accordingly, in my professional opinion, the
spermatozoa I found in Ms. Stites’s vaginal
cavity could have been deposited days before
her death. Further, the fact that I found “very
few” (as stated in the autopsy report)
spermatozoa in Ms. Stites’s vaginal cavity
suggests that the spermatozoa was not
deposited within 24 hours before Ms. Stites’s
death.
(App.-277a.) (emphasis added).
Bode Cellmark Forensics (a subsidiary of
LabCorp) Technical Leader Stephanie Sivak issued a
letter which described Clement’s testimony about the
length of time sperm can remain intact as
“unsatisfactory” and as an “error.” (App.-228a-229a.)
DPS Crime Lab Director, Brady Mills, also
acknowledged the “limitations” of Blakely’s testimony
and further admitted that her statement about
“outside length of time” was contrary to the literature
she cited. (App.-233a.) The paper Blakely cited
 21

states: (1) its data regarding longer times after

intercourse (26 hours) was not a reliable measure of
the persistence of intact spermatozoa and (2) more
reliable studies demonstrated “72 hours as the
longest time for intact spermatozoa to be found in the
vagina.” (App.-233a.)
Dr. Spitz further explained the fallacy of Blakely’s
and Clement’s trial testimony: “Very few sperm were
found on autopsy smears, and the crime scene
investigator found only 3 intact spermatozoa. If the
victim was sexually assaulted between 3-5 a.m.,
there would be more sperm found on the slides. ...
The amount of sperm found on the slides is more
consistent with a longer interval between intercourse
and the time the sample was collected. As I explain
in my book, intact spermatozoa can be found in the
vagina up to 72 hours after coitus.” (App.-282a.)
Dr. Baden confirmed that “[t]he testimony at trial
that no intact sperm remains in the vagina after 24
hours is not correct. It is my experience, and the
experience of other forensic pathologists as reported
in the forensic science literature, that sperm may
remain intact for more than 72 hours after
intercourse. The few sperm seen are entirely
consistent with consensual intercourse that
Petitioner said occurred between midnight and 3:00
a.m. on April 22, 1996.” (App.-289a.)
4. New Witnesses Confirm An Intimate
Relationship Between Reed And Stites.
In a prior federal habeas proceeding, Magistrate
Judge Austin noted that:
[P]ersuasive evidence that Reed and Stites
had consensual sex days before the murder
 22

would have clearly undermined the State's

evidence. Further, given the evidence that
Fennell was racially prejudiced, evidence of
an interracial affair between Stites
and Reed would also have provided a
credible motive for Fennell to kill Stites.
Reed v. Thaler, No. 2012 WL 2254217, at *14 n.8
(W.D. Tex. June 15, 2012). In the years since Reed’s
initial habeas petition was adjudicated, credible new
witnesses have come forward with precisely this
evidence:
x Weeks before her death, Stites confided to a co-
worker, Alecia Slater, that “she was not
excited about getting married,” that “she was
sleeping with a black guy named Rodney and
that she didn’t know what her fiancé would do
if he found out” and that “she had to be
careful.” (App.-423a.)
x Another co-worker, Leroy Ybarra, observed
Stites and Reed interacting at the grocery
store where Ybarra and Stites worked. Based
on their interaction, he believed the two were
romantically involved. (App.-428a-429a.)
x Stites’s cousin, Calvin “Buddy” Horton,
recalled seeing Stites and a black man
together at a Dairy Queen in late 1995. After
Reed’s image was circulated in the media as
the suspected murderer, Horton identified
Reed as the man he saw with Stites. (App.-
432a-433a.)
Especially in light of the forensic evidence
discussed above, these new witnesses provide the
credible evidence of Reed and Stites’s relationship,
 23

which both explains the presence of Reed’s DNA and

gives motive for Fennell to have murdered Stites.

In light of these (1) new witnesses confirming a

relationship, (2) Fennell’s refusal to testify about his
activities and whereabouts at the time the medical
evidence shows Stites was murdered, and (3)
recantations of the State’s experts, nothing remains
of the State’s trial theory but a lingering prejudice
that consensual, interracial relationships did not
happen in rural Bastrop, Texas in 1996.
E. The CCA Entered A Cursory Denial Of
Habeas Relief After A Four-Year Stay Of
Execution.
On June 26, 2019, the CCA issued an order which,
despite the length of time the CCA had the case and
the amount of evidence presented, contained no
analysis. (App.-1a.) With respect to the 2016 Petition,
the Court stated that it had reviewed the Findings
(but it did not adopt them) and the record, and it
denied relief. (App.-4a.) Its analysis of Reed’s Brady
claim consisted of a two-sentence observation that
Davis did not have perfect recollection of Fennell’s
statements and made some assumptions based on
what he was told, and that Stites’s mother gave
unspecified testimony inconsistent with Reed’s
claims. (App.-4a.) As for the 2018 Petition, the CCA
stated that Reed had not shown that his “‘current
claims and issues’” based on the recently obtained
letters from DPS and Cellmark could not have been
presented in an earlier application based on the
factual or legal unavailability of the claim. (App.-5a.)
The CCA also found that Reed had not made a prima
 24

facie showing of innocence and denied the petition as

an abuse of the writ. (App.-5a.)

REASONS FOR GRANTING THE WRIT

I. THE TEXAS COURTS FAILED TO

CONSIDER FENNELL’S REFUSAL TO
TESTIFY WHEN CONFRONTED WITH
SUPPRESSED EXCULPATORY
EVIDENCE IN VIOLATION OF THE
SIXTH AND FOURTEENTH
AMENDMENTS.

The Texas courts’ refusal to consider the

implications of Fennell’s blanket invocation of the
Fifth Amendment privilege against self-incrimination
at the habeas hearing as part of the Brady
materiality analysis4 was error this Court should
address. Once Fennell invoked the Fifth Amendment
privilege (a privilege Fennell first invoked as a
murder suspect and then expressly waived at Reed’s
trial) and refused to testify, the court could not
continue to rely on Fennell’s trial testimony
consistent with the Sixth and Fourteenth
Amendments when assessing Reed’s Brady claims.

4 The CCA did not discuss the first two elements of a Brady
claim: whether the information is favorable and if it was
suppressed. However, these elements were obviously met.
Fennell’s prior inconsistent statement to Davis is classic
impeachment evidence, and Davis, who was employed by the
lead investigatory agency, knew the information but did not
disclose it. See Kyles v. Whitley, 514 U.S. 419, 433, 438 (1995)
(impeachment evidence is favorable and suppression shown
when undisclosed information is known by any member of the
prosecution team).
 25

Fennell’s invocation at the evidentiary hearing

demonstrates that, had his prior inconsistent
statements to Davis been disclosed, Fennell either
would have not waived the privilege in the first place,
or he would have invoked the privilege when
confronted with those statements upon cross-
examination, resulting in his testimony being
stricken. See United States v. Williams, 2012 WL
38229, at *10 (D. Minn. Jan. 9, 2012) (witness’s
invocation of Fifth Amendment privilege in post-
conviction evidentiary hearing demonstrated “that
the jury would have never heard from [the witness]
on the[] topics” for which he invoked). Instead, the
Texas courts did not even acknowledge that Reed
called Fennell to testify at the hearing at all. (See
App.-1a, 6a.)
The Sixth Amendment right to confront witnesses
includes the right to cross-examine them. The
“central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding
before the trier of fact.” Maryland v. Craig, 497 U.S.
836, 845 (1990).
Thus, when a witness testifies for the prosecution
and, during the trial, also invokes the Fifth
Amendment privilege against self-incrimination, the
Sixth Amendment requires that the court consider
whether the invocation has precluded a defendant
from challenging the reliability of the testimony, as
guaranteed by the Confrontation Clause. This Court
has assessed the intersection of the protections
afforded testifying witnesses by the Fifth
Amendment and those guaranteed to defendants by
 26

the Sixth Amendment and concluded that the

Confrontation Clause does not permit a witness to
“testify voluntarily about a subject and then invoke
the privilege against self-incrimination when
questioned about the details.” Mitchell v. United
States, 526 U.S. 314, 321-22 (1999) (upholding a
claim of privilege when a witness invokes privilege
after testifying “would open the way to distortion of
facts by permitting a witness to select any stopping
place in the testimony”).
When a witness testifies during trial and then
invokes the Fifth Amendment privilege in the same
proceeding, a court cannot, consistent with the Sixth
Amendment, do nothing. A court can compel the
witness to continue testifying if it concludes the
witness waived the privilege by testifying
voluntarily. See Brown v. United States, 356 U.S.
148, 154-57 (1958). If the witness refuses to testify
when ordered or the court finds that there was no
waiver of the privilege, the court may have to strike
the witness’s testimony. See United States v.
McGlory, 968 F.2d 309, 344 (3d Cir. 1992); Bagby v.
Kuhlman, 932 F.2d 131, 135 (2d Cir. 1991). Because
a testifying witness’s invocation of privilege
“precludes inquiry into the details of his direct
testimony, there may be a substantial danger of
prejudice because the defense is deprived of the right
to test the truth of his direct testimony,” and the
Sixth Amendment may require that the testimony be
stricken. United States v. Cardillo, 316 F.2d 606, 611
(2d Cir. 1963). These constitutional concerns are
compelling when a witness’s testimony “add[s]
critical weight to the prosecution’s case in a form not
subject to cross-examination.” Todaro v. Fulcomer,
944 F.2d 1079, 1082 (3d Cir. 1991); see also Klein v.
 27

Harris, 667 F.2d 274, 279, 288-89 (2d Cir. 1981);

Williams v. State, 800 S.W.2d 364, 367 (Tex. App.-
Fort Worth 1990) (trial court properly excluded
witness’s testimony after he indicated “he would
invoke his fifth amendment privilege against self-
incrimination if he testified before the jury”).
This Court has not considered this intersection of
the Fifth and Sixth Amendments in the context of a
Brady claim. Where the focus of the Brady
materiality test is the effect of the exculpatory
evidence on the trial’s outcome, there is no principled
argument to apply a different standard to a trial
witness invoking the Fifth Amendment privilege.
For example, had Fennell’s conversation with Davis
been disclosed to the defense before trial, Fennell’s
refusal to testify at the habeas hearing demonstrated
that he would have either (a) not waived his Fifth
Amendment privilege and would therefore not have
testified at all, or (b) refused to confront his
inconsistent statements in open court before the jury.
Consistent with Due Process and the Confrontation
Clause, the trial judge would have had to strike his
prior testimony.
Some courts have followed a similar approach in
post-conviction proceedings. A Federal District Court
in Pennsylvania, for example, found a state court
denial of Brady claims to be unreasonable under the
deferential federal habeas standard when the state
court improperly permitted witnesses who had
testified for the State at trial to make blanket
privilege assertions in an evidentiary hearing when
the issue involved whether or not they had testified
truthfully at trial. Harshman v. Superintendent,
State Corr. Inst. at Rockview, 368 F. Supp. 3d 776,
 28

784 (M.D. Pa. 2019). Likewise, the Florida Supreme

Court discussed the implications of a trial witness
who invoked the Fifth Amendment privilege when
confronted with a prior inconsistent statement
during post-conviction proceedings. See Duckett v.
State, 918 So. 2d 224, 232-33 (Fla. 2005). The Florida
Supreme Court explained that the assertion of the
privilege indicated the witness would not have
testified at all. Id. at 233 (considering impact on trial
evidence with witness’ testimony “removed from this
list”).
Texas takes the opposite approach. In Vargas v.
State, for example, the trial court conducted an
evidentiary hearing on appellant’s due process and
fundamental fairness claims based on allegations
that the State relied on perjured police testimony at
his trial. 781 S.W.2d 356, 360 (Tex. App.—Houston
1989), rev’d on other grounds, 838 S.W. 2d 552 (Tex.
Crim. App. 1992). At the hearing, two officers
invoked their Fifth Amendment privilege. Id. at 361.
The trial court entered findings concluding that there
was no evidence that the conviction was procured as
a result of perjured police testimony with no
discussion of the implications of the appellant’s
inability to confront the officers. Id. The Court of
Appeals then held that “[t]here was no evidence that
either of the officers lied while under oath in this
trial.” Id.
As in Vargas, Reed’s habeas judge drew no
inferences from Fennell’s refusal to testify when
confronted with the exculpatory evidence and,
indeed, the CCA opinion below did not even mention
Fennell had been called as a witness. By focusing
only on Davis’s habeas testimony and ignoring the
 29

impact of the privilege invocation on Fennell’s trial

testimony, the CCA has strayed from the well-
established focus of the Brady materiality test on the
trial’s outcome. This Court should grant review and
make clear the proper standard to be applied.
The importance of a proper application of the
Brady materiality test in Reed’s case is manifest
because of Fennell’s status as a key fact witness. As
investigators concede, the only independent
information gathered about Stites’s whereabouts was
the timeline provided by Fennell:
Q: The information concerning Stacey’s
whereabouts after 7:30 on the 22nd of
April, when she left her mother’s
apartment and went up to hers, all of that
information--where did that information
come from?
A: It came from Jimmy Fennell.
(App.-301a.) If the exculpatory information that
caused Fennell to invoke the Fifth Amendment
privilege is properly considered under Brady¸ it
would have painted the case against Reed in a
different light and undermined confidence in the
verdict.

II. REED’S CONVICTION IS PREMISED ON

SCIENTIFIC EXPERT OPINIONS THAT
HAVE SINCE BEEN RECANTED IN
VIOLATION OF DUE PROCESS

Reed raised a Due Process claim based on the

admissions by each of the State’s experts, or their
employing agencies, that the expert testimony offered
at Reed’s trial connecting Reed’s DNA to the murder
 30

was scientifically invalid. Because these experts told

the jury that intact spermatozoa cannot be found in a
woman’s body after 24-26 hours, the State argued
that the presence of a small amount of Reed’s intact
spermatozoa on vaginal swabs ruled out an earlier
consensual encounter and demonstrated Reed must
have sexually assaulted Stites contemporaneous with
the murder. Supra at 19-21. The State’s experts now
admit that intact spermatozoa may persist in a body
for 72 hours or more. Dr. Bayardo has even
confirmed that the small number of intact
spermatozoa he found indicated that Reed and Stites
had sex more than 24 hours before her death. Supra
at 20.
In his habeas application, Reed asked the CCA to
consider the invalid scientific evidence under the
Napue Due Process standard applicable to assessing
the State’s reliance on false testimony. (App.-254a-
255a.)
A Napue violation generally occurs when the
government introduces false or misleading testimony
and fails to correct it when it knew or should have
known that the testimony was false or misleading.
Longus v. United States, 52 A.3d 836, 844-45 (D.D.C.
2012) (“A bedrock principle of due process in a
criminal trial is that the government may neither
adduce or use false testimony nor allow testimony
known to be false to stand uncorrected.”). The
introduction of false or misleading testimony is
material if the evidence “could … in any reasonable
likelihood have affected the judgment of the jury.”
Giglio v. United States, 405 U.S. 150, 154 (1972)
(alternation in original) (quoting Napue v. Illinois,
360 U.S. 264, 271 (1959).
 31

Although Napue traditionally requires some level

of knowledge by the prosecutor, the D.C. Court of
Appeals and other jurisdictions have applied the
Napue standard to Due Process claims arising out of
the State’s use of scientifically invalid expert
testimony. In United States v. Butler, for example,
the court discussed a letter from the United States
Department of Justice, which expressed that in cases
where invalid scientific testimony was offered
regarding microscopic hair comparison by the FBI
crime lab, procedural barriers should not bar review
and that the underlying testimony should be
considered false:
In this letter, the government confirmed
that it would “not dispute that [hair
evidence] should be treated as false
evidence and that knowledge of the falsity
should be imputed to the prosecution . ...
[T]he government ... will not contest that
the erroneous evidence was false or
misleading or that the government as a
whole should have known that it was false
or misleading.”
278 F. Supp. 3d 461, 476 (D.D.C. 2017) (second
ellipses in original). In Jones v. United States, the
Court of Appeals referenced a letter from the FBI to
the U.S. Attorney, which stated that in Jones’s case,
the FBI examiner’s statements “exceeded the limits
of science” and “were, therefore, invalid.” 202 A.3d
1154, 1162 (D.C. 2019). The Court reversed the
denial of Jones’s motion to vacate his convictions
under D.C. Code § 23-110. Id. at 1173.
Similarly, in United States v. Ausby, the FBI and
Department of Justice determined that the
 32

government’s testimony about identifications using

microscopic hair comparison was false testimony that
amounted to a Napue violation. 916 F.3d 1089 (D.C.
Cir. 2019). Like in Reed’s case, the scientifically
invalid testimony was the “primary evidence that
directly contradicted [the] defense theory” and such
testimony was emphasized by the prosecution during
closing. Id.; see also Jones, 202 A.3d at 1168 (noting
testimony was unrefuted and presented with
photographic exhibits “to enhance its credibility and
impact”).
The Third Circuit appears to have taken a
different approach to Due Process claims arising out
of the State’s use of scientifically invalid expert
testimony and has applied a more general
fundamental fairness test. The Third Circuit Court of
Appeals considered a Due Process claim based on the
State’s reliance on scientifically invalid testimony
that a fire was caused by arson and required a
petitioner to show that the “admission of the fire
expert testimony undermined the fundamental
fairness of the entire trial because the probative
value of [that] evidence, though relevant, [was]
greatly outweighed by the prejudice to the accused
from its admission.” Han Tak Lee v. Houtzdale SCI,
798 F.3d 159, 166 (3d Cir. 2015); see also Gimenez v.
Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016) (Due
Process violated where introduction of flawed expert
testimony undermined the fundamental fairness of
the entire trial).
This Court should review the CCA’s rejection of
Reed’s Due Process claim and resolve the split of
authority as to the proper standard for considering
 33

the impact of the State’s reliance on scientifically

invalid expert testimony.
The CCA dismissed Reed’s Due Process claim
purportedly on procedural grounds, citing section 5 of
article 11.071 of the Texas Code of Criminal
Procedure. (App.-5a.) This procedural denial is no
barrier to the Court’s review because the Texas
procedural default provision has not been regularly
applied as to Reed’s Due Process claims. See Wright
v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006). A
close examination of the CCA’s decisions in Reed’s
case alone demonstrates the inconsistent application
of Texas’s procedural default provisions. The CCA
dismissed these Due Process claims in an ambiguous
order, stating:
We find that applicant has failed to make a
prima facie showing on any of his claims.
Therefore, his 2015 subsequent application
(our –07) fails to satisfy any of the exceptions
provided in Article 11.071 § 5. ... Accordingly,
the application is dismissed as an abuse of
the writ without reviewing the merits of the
claims. Art. 11.071 § 5(c).
(App.-45a.) While the Court’s mention of a prima
facie showing indicated merits review, see In re
Davila, 888 F.3d 179, 188–89 (5th Cir. 2018), the
CCA also expressly disclaimed review of the merits
and specifically noted that Reed failed to meet “any”
of the three exceptions to the procedural default rule,
including section 5(a)(1) of article 11.071, which
requires that the evidence be previously unavailable.
In the June 26, 2019 order dismissing Reed’s Due
Process claim, the CCA court again held that Reed’s
 34

claims relating to scientifically invalid testimony

were not previously unavailable pursuant to section
5(a)(1). (App.-5a.) This time, however, the CCA did
not include language indicating whether it had
reviewed the 2018 Petition to determine if Reed had
made a “prima facie showing.” Id. Because the CCA
concluded in both orders that Reed’s Due Process
claims were not previously unavailable under section
5(a)(1), there is no meaningful justification for the
court to have engaged in prima facie merits review of
the 2015 Petition, but not the 2018 Petition.
Accordingly, the CCA did not consistently apply
Texas’s procedural default here, and it should not
prevent consideration of Reed’s substantial claims of
constitutional violations.

III. REED’S CONVICTION OR EXECUTION

WOULD VIOLATE THE UNITED STATES
CONSTITUTION BECAUSE HE IS
ACTUALLY INNOCENT OF THE
MURDER OF STACEY STITES.

Reed has made a comprehensive and persuasive

showing of his actual innocence in the court below.
As discussed in detail in the Statement of the Case,
supra at 10-23, the State’s proof of Reed’s guilt
centered on (1) now recanted and discredited expert
testimony, and (2) a timeline provided by Fennell,
whose testimony must be entirely disregarded based
on his recent refusal to testify at a habeas hearing.
While this showing alone is sufficient to meet the
high burden of proving actual innocence as a
constitutional violation, Reed’s innocence evidence is
uniquely powerful because he has also presented
 35

evidence implicating Fennell as the murderer,

including the following:
• uncontradicted forensic findings by three
leading forensic pathologists indicating that
the State’s theory of Reed’s guilt is “medically
and scientifically impossible,” and that Stites
was murdered hours before Fennell claimed
she left for work—at a time Fennell testified
the two were together in their apartment;
• statements by Stites’s cousin and co-workers
corroborating Reed’s trial defense that he and
Stites were having an affair—this evidence
explains the presence of Reed’s DNA and
provides motive for Fennell to have murdered
Stites;5
• testimony by a police officer that Fennell told
her he would use a belt to murder his
girlfriend if he ever learned she was
unfaithful; and
• evidence that Fennell has been engaged in a
pattern of violence which ultimately resulted
in a felony conviction and a ten year prison
term arising out of charges that Fennell
kidnapped and raped a woman while he was
on duty as a police officer.

5 See Reed v. Thaler, 2012 WL 2254217, at *14 n.8 (W.D.

Tex. June 15, 2012) (persuasive evidence of intimate

relationship between Reed and Stites would both undermine
State’s evidence and provide credible motive for Fennell to kill
Stites).
 36

This comprehensive showing of innocence, which

both negates the State’s proof of guilt and implicates
a third party in the crime, carries special weight. See
House v. Bell, 547 U.S. 518, 548 (2006) (forensic
evidence negating state’s proof at trial might not
establish actual innocence absent “troubling
evidence” implicating victim’s husband). Despite this
comprehensive and uncontradicted showing of
innocence, the CCA denied Reed’s actual innocence
claim on the merits in a summary order. (App.-4a-
5a.) See Davila, 888 F.3d at 188-89 (dismissal for
failing to make prima facie showing constitutes
merits determination).
Although Texas has recognized that the Due
Process Clause of the United States Constitution
prohibits the conviction, imprisonment and execution
of persons actually innocent of a crime, see Ex parte
Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), the
matter remains unresolved in this Court. See
Herrera v. Collins, 506 U.S. 390 (1993). The lower
federal courts and state jurisdictions are split
regarding the scope of constitutional protections for
the actually innocent and the standard for
determining if a person has made a sufficient
showing. See Graves v. Cockrell, 351 F.3d 143, 151
(5th Cir. 2003) (claims of actual innocence are not
cognizable on federal habeas review); Carriger v.
Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (petitioner
“must affirmatively prove that he is probably
innocent,” in derogation of panel opinion requiring
clear and convincing proof); Cornell v. Nix, 119 F.3d
1329, 1335 (8th Cir. 1997) (standard “is at least as
exacting as the clear and convincing evidence
standard, and possibly more so”); State v. Beach, 302
P.3d 47, 54 (Mont. 2013) (clear and convincing
 37

evidence that no reasonable juror would convict);

People v. Washington, 665 N.E.2d 1330, 1337 (Ill.
1996) (evidence of such conclusive character as would
probably change the result on retrial); State ex rel.
Amrine v. Roper, 102 S.W.3d 541, 543 (Mo. 2003)
(requiring “a clear and convincing showing of actual
innocence that undermines confidence in the
correctness of the judgment”); In re Lawley, 179 P.3d
891, 897 (Cal. 2008) (evidence of innocence must, if
credited, “undermine the entire prosecution case and
point unerringly to innocence or reduced
culpability”); Miller v. Comm’r of Corr., 700 A.2d
1108, 1130 (Conn. 1997) (actual innocence by clear
and convincing evidence, plus insufficiency of
evidence in combined record to support finding of
guilt).
Because Reed has made a credible and
comprehensive showing of his actual innocence and
the Texas court has adjudicated the claim on the
merits, this Court should (1) grant review on the
issue, (2) articulate the correct standard for
determining a constitutional violation based on
actual innocence, and (3) enter judgment that Reed’s
constitutional rights were violated because he is
actually innocent of the murder of Stacey Stites.
 38

CONCLUSION

Petitioner respectfully requests that the Court

grant the petition for a writ of certiorari.

Respectfully submitted,

BARRY C. SCHECK
BRYCE BENJET CLIFF C. GARDNER
Counsel of Record ROBERT A. WEBER
[email protected] MICHELLE L. DAVIS
[email protected] NICOLE A. DISALVO
THE INNOCENCE PROJECT JULIANA R. VAN HOEVEN
40 Worth St., Ste. 701 SKADDEN, ARPS, SLATE,
New York, NY 10013 MEAGHER & FLOM LLP
(212) 364-5980 920 N. King St.
Wilmington, DE 19801
ANDREW F. MACRAE (302) 651-3000
LEVATINO|PACE PLLC
1101 S. Capital of Texas Hwy.
Building K, Ste. 125
Austin, TX 78746
(512) 637-8565

September 24, 2019

Counsel for Petitioner
Rodney Reed
APPENDIX
 1a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-50,961-08, WR-50,961-09

EX PARTE RODNEY REED, Applicant

ON APPLICATIONS FOR POST-CONVICTION

WRIT OF HABEAS CORPUS FROM CAUSE NO.
8701 IN THE 21ST JUDICIAL DISTRICT
COURT OF BASTROP COUNTY

Per curiam. Newell, J., not participating.

ORDER
We have before us subsequent applications for
writs of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure
Article 11.071 § 5.1 In May of 1998, a jury convicted
Rodney Reed (applicant) of the capital murder of
Stacey Stites. The jury answered the special issues
submitted pursuant to Article 37.071, and the trial
court, accordingly, set applicant’s punishment at
death. This Court affirmed applicant’s conviction and
sentence on direct appeal. Reed v. State, No. AP-
73,135 (Tex. Crim. App. Dec. 6, 2000) (not designated
for publication).

1 Unless otherwise indicated all references to articles refer

to the Code of Criminal Procedure.

 2a

In 1999, applicant filed his initial post-conviction

application for writ of habeas corpus in the convicting
court. In 2001, applicant filed his “Supplemental
Claim for Relief on Application for Writ of Habeas
Corpus” in the convicting court.2 This Court
subsequently denied applicant relief on his initial
application and dismissed the subsequent application
pursuant to Article 11.071 § 5. Id. Applicant filed his
second subsequent habeas application in the
convicting court on March 29, 2005. This Court
dismissed some of the claims in that application as
an abuse of the writ under Article 11.071 § 5, but
remanded the case to the trial court for the
development of two of applicant’s claims. Ex parte
Reed, No. WR-50,961-03 (Tex. Crim. App. Oct. 19,
2005) (not designated for publication). After the
convicting court returned the case to this Court, we
issued an opinion denying relief. Ex parte Reed, 271
S.W.3d 698, 751 (Tex. Crim. App. 2008).
Applicant filed three more subsequent writ
applications, none of which satisfied the
requirements of Article 11.071 § 5, and this Court
dismissed each of them as an abuse of the writ. Ex
parte Reed, Nos. WR-50,961-04 & WR-50,961-05 (Tex.
Crim. App. Jan. 14, 2009) (not designated for
publication) and Ex parte Reed, No. WR-50,961-06
(Tex. Crim. App. July 1, 2009) (not designated for
publication).

2 The Court construed applicant’s “Supplemental Claim” as

a subsequent application. Ex parte Reed, Nos. WR-50,961-01

and WR-50,961-02 (Tex. Crim. App. Feb. 13, 2002) (not
designated for publication).
 3a

Applicant filed his sixth subsequent application

(No. WR-50,961-07) in the trial court on February 13,
2015, and he filed a document titled “Supplemental
Application for Writ of Habeas Corpus” (No. WR-
50,961-08) on June 9, 2016. In his -07 application,
applicant asserted that he had newly discovered
evidence that supported his claim that he is actually
innocent and that new scientific evidence entitled
him to a new trial pursuant to Article 11.073.
Applicant also argued that the State presented false,
misleading, and scientifically invalid expert
testimony in violation of his right to due process. See
Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim.
App. 2009). In a fourth allegation, applicant asserted
that we should reconsider his previous writ
applications in light of this new evidence. In his -08
application, applicant asserted that he had newly
discovered evidence that supported his claim that he
is actually innocent, that the State’s failure to
disclose this newly discovered evidence violated his
due process rights under Brady v. Maryland, 373
U.S. 83 (1963), and that this newly discovered
evidence showed that the State presented false and
misleading testimony, which violated his right to due
process. See Chabot, 300 S.W.3d at 770-71.
In 2015, we ordered that applicant’s execution be
stayed pending further order of the Court. Ex parte
Reed, No. WR-50,961-07 (Tex. Crim. App. February
23, 2015) (not designated for publication). On May
17, 2017, this Court found that applicant’s -07
application failed to satisfy any of the exceptions
provided in Article 11.071 § 5, and failed to make the
requisite showing under Article 11.073. Ex parte
Reed, Nos. WR-50,961-07 & WR-50,961-08, slip op. at
3 (Tex. Crim. App. May 17, 2017) (not designated for
 4a

publication). We dismissed the -07 application as an

abuse of the writ without reviewing the merits of the
claims and refused to reconsider applicant’s prior
writ applications. Id.
Also in the May 2017 order, we found that
applicant failed to make a prima facie showing of
actual innocence in his -08 application. Id. However,
we found that applicant’s Brady and false testimony
claims (his second and third grounds for relief in his -
08 application) satisfied the requirements of Article
11.071 § 5. Id. These claims were based on
statements made to a CNN interviewer by Curtis
Davis, a law enforcement officer and close friend of
Stacey Stites’s fiancé, Jimmy Fennell. Davis told the
interviewer about statements that Fennell allegedly
made to him in 1996 on the morning after the
murder about Fennell’s activities and whereabouts
the previous evening. These statements appeared to
be inconsistent with Fennell’s trial testimony.
The trial court held an evidentiary hearing in
October 2017. Applicant called five witnesses to the
stand, including Davis. The State called five
witnesses, including Stites’s mother. At the hearing,
Davis conceded that many of his answers to the
interviewer’s questions had been based on
assumptions and he had trouble remembering some
of Fennell’s statements. Stites’s mother also gave
testimony inconsistent with applicant’s claims. The
trial judge signed findings of fact and conclusions of
law on January 5, 2018, recommending that
applicant’s grounds two and three be denied.
We have reviewed the evidence in the writ record,
the testimony at the writ hearing, the habeas court’s
findings of fact and conclusions of law, and relevant
 5a

portions of the direct appeal record. Based on our

review of the record, with regard to the remanded
grounds in applicant’s -08 subsequent application, we
deny the relief sought. We dismiss any other grounds
applicant raised in his -08 application as an abuse of
the writ for failure to satisfy Article 11.071 § 5.
In June 2018, applicant filed another document
titled “Supplemental Application for Writ of Habeas
Corpus.” This 2018 application constitutes
applicant’s eighth subsequent application (No. WR-
50,961-09) pursuant to Article 11.071 § 5(a). In this -
09 application, applicant asserts that the scientific
experts’ opinions that the State relied on to convict
him were “false when given and have since been
changed.” In support, applicant cites Article 11.073,
due process principles, and actual innocence law.
Applicant has not shown that his “current claims and
issues” in his 2018 application were not or could not
have been presented in a previous application
because the factual or legal basis for the claim was
unavailable on the date he filed the previous
application. See Article 11.071 § 5(a)(1). In fact,
applicant previously presented one of his current
exhibits, a 2012 declaration authored by the State’s
medical examiner, Dr. Roberto Bayardo, as a basis
for a substantially similar false evidence ground
raised in his -07 writ application. Nor has applicant
shown “by a preponderance of the evidence, [that] but
for a violation of the United States Constitution no
rational juror could have found [him] guilty beyond a
reasonable doubt.” Id. at § 5(a)(2). Consequently, we
dismiss applicant’s -09 application as an abuse of the
writ for failure to satisfy Article 11.071 § 5.
IT IS SO ORDERED THIS THE 26 DAY OF
JUNE, 2019. (Do Not Publish)
 6a

Writ Cause No. 50,961-08

Trial Court Cause No. 8701

§ IN THE 21ST
Ex parte § DISTRICT COURT
RODNEY REED § OF
Applicant. § BASTROP COUNTY,
§ TEXAS

FINDINGS OF FACT AND

CONCLUSIONS OF LAW
After considering the record in this
case, and after making credibility
determinations following a live hearing in this
state habeas proceeding, the Court enters the
following findings of fact and conclusions of law:
FINDINGS OF FACT
Relevant Procedural History
1. On May 18, 1998, Applicant, Rodney Reed, was
found guilty of the capital murder of Stacey
Stites. On May 28, 1998, Applicant was
sentenced to death.
2. Applicant has challenged his conviction and
sentence on numerous occasions in both state
and federal court. See, e.g., Ex parte Reed, Nos.
WR-50,961-07 & WR-50,961-08, 2017 WL
2131826, at *1 (Tex. Crim. App. May 17, 2017).
3. The conviction challenge presently before the
Court comes from Applicant’s eighth state
habeas application, filed on June 7, 2016. See
Eighth Appl. 18.
 7a

4. In Applicant’s eighth application, he raised

three grounds: (1) newly-discovered
evidence—an interview of Curtis Davis by
CNN in 2016 wherein Davis recalled a 1996
conversation with Jimmy Fennell—supports
his actual-innocence claim; (2) this newly-
discovered evidence was suppressed, is
favorable, and is material to his conviction;
and (3) this newly-discovered evidence
proves that false testimony was given at
Applicant’s capital murder trial. See
generally Eighth Appl. 1-13.
5. Because Applicant’s eighth application was filed
subsequent to his initial one, the Court of
Criminal Appeals considered it under Section 5
of Article 11.071 of the Code of Criminal
Procedure. Ex parte Reed, 2017 WL 2131826, at
*2
6. On May 17, 2017, the Court of Criminal
Appeals remanded the eight application, in
part:
In his [eighth] application (our —
08), applicant asserts that he has
newly discovered evidence that
supports his claim that he is actually
innocent [Ground One], that the
State’s failure to disclose this newly
discovered evidence violated his due
process rights under Brady v.
Maryland, 373 U.S. 83 (1963) [Ground
Two], and that this newly discovered
evidence shows that the State
presented false and misleading
testimony, which violated his right to
 8a

due process [Ground Three]. See Ex

parte Chabot, 300 S.W.3d 768, 771
(Tex. Crim. App. 2009).
After reviewing the [eighth]
application, we find that application
has failed to make a prima facie
showing of actual innocence [Ground
One]. However, we further find that
his Brady [Ground Two] and false
testimony [Ground Three] claims do
satisfy the requirements of Article
11.071 § 5. Accordingly, we remand
those claims to the trial court for
resolution.
Ex parte Reed, 2017 WL 2131826, at *2.
7. The Court set the two remanded claims for a
live evidentiary hearing. That hearing took
place over four days beginning October 10,
2017. During that hearing, the following
individuals testified: Curtis Davis, David
Hall, Nina Smith, Forrest Sanderson, Dr.
Michael Baden, Lydia Clay-Jackson, Calvin
Garvie, David Campos, David Board, “Rocky”
Wardlow, Charles Penick, and Carol Stites.
The Court also admitted various items of
evidence, including judicially noticing the
record of Applicant’s capital murder trial.
8. Following the hearing, the Court ordered the
parties to submit proposed findings of fact
and conclusions of law.
 9a

The Evidentiary Hearing

Curtis Davis
9. Applicant called Curtis Davis. 2.EHRR.47.
10. Davis testified that, at the time of Stites’s
murder, he was good friends with Fennell and
Stites. 2.EHRR.52-56.
11. Davis testified that he was interviewed by CNN
sometime in 2016 regarding a conversation that
he had with Fennell that took place about
twenty years earlier. 2.EHRR.57-58, 63-64, 104.
12. The factual basis of Applicant’s remanded
grounds for review—that Fennell supposedly
told Davis that (1) he arrived home between
10:00 p.m. and 11:00 p.m. on April 22, 1996, and
(2) had consumed some alcohol on April 22,
1996—stems from Davis’s interview by CNN
sometime in 2016. See generally AX.1; Eighth
Appl. 1-13.
13. Davis testified that Fennell never told Davis
what time he arrived home on April 22, 1996,
and that Davis surmised Fennell’s arrival time
based on his own granddaughter’s experience in
the same little league baseball organization in
which Fennell previously coached. 2.EHRR.69.
14. Davis testified that he did not remember
whether Fennell told him that Stites was asleep
when Fennell arrived home on April 22, 1996,
2.EHRR.69, then later said that Stites being
asleep was “an assumption,” 2.EHRR.114, and
he did “not think that [Fennell] ever” told him
that Stites was asleep, 2.EHRR.116.
 10a

15. Davis testified that he had no personal

knowledge of Fennell’s activities or whereabouts
on April 22, 1996. 2.EHRR.105.
16. Davis testified that he was not part of the
investigation into Stites’s murder. 2.EHRR.101.
17. Davis testified that he took time off from his
employment as a jailer with the Bastrop County
Sheriff’s Office on April 23, 1996, before he had
any conversations with Fennell regarding
Fennell’s whereabouts on April 22, 1996.
2.EHRR.103.
David Hall
18. Applicant called David Hall. 2.EHRR.132.
19. Hall testified that, at the time of Stites’s
murder, he worked with and was friends with
Fennell, and they coached a little league
baseball team together. 2.EHRR.132.
20. Hall had difficulty remembering the events of
April 22, 1996, both at this evidentiary hearing
and at a 2001 evidentiary hearing. See, e.g.,
2.EHRR.135, 144.
21. Hall recalled that he coached a little league
baseball event, either practice or a game, with
Fennell on April 22, 1996, which started
sometime after school let out and ended
sometime “[p]robably before dark.” 2.EHRR.135,
138.
22. Hall previously testified that following the little
league event, he and Fennell took some kids
home, then Fennell took Hall home, and finally
Fennell “went back to [his] apartment,”
 11a

2.EHRR.145, all probably before sunset on April

22, 1996, 2.EHRR.147.
23. The Court notes that Hall did not think that he
consumed any alcohol with Fennell on April 22,
1996 after the little league event, 2.EHRR.142,
but that he could not say so with certainty and
that sometimes they would have beers in the
ballfields parking lot, 2.EHRR.145-46.
Nina Smith
24. Applicant called Nina Smith. 2.EHRR.149.
25. Nina Smith testified that she was the little
league baseball president and treasurer in
Giddings, Texas from 1988 to 1999.
2.EHRR.151.
26. Smith testified that Fennell coached little
league with Hall at the time of Stites’s murder.
2.EHRR.151-52.
27. Smith recalled that practices usually started
around 5:00 p.m., that games usually started
around 7:00 p.m., and that practices could end
fairly late depending on whether there was a
game scheduled and the coach’s discretion.
2.EHRR.153.
28. Smith testified that while she never saw
drinking at the ballfields by any coaches,
2.EHRR.154, there was a lot of activity on any
given night at the ballfields, that she was
usually watching her own children compete, and
that it would have been “very easy” for
something to have happened in the ballfields
parking lot without her observation,
2.EHRR.159-60.
 12a

Forrest Sanderson
29. Applicant called Forrest Sanderson.
2.EHRR.163.
30. Sanderson testified that he was the First
Assistant at the Bastrop County Criminal
District Attorney’s Office at the time of
Applicant’s trial. 2.EHRR.163.
31. Sanderson recalled speaking with Davis only
one time about the Stites case, though he did
not recall the details of what was discussed.
2.EHRR.174-76.
32. Sanderson had no recollection of there being an
alternative timeline for Fennell’s whereabouts
on April 22, 1996. 2.EHRR.182.
Dr. Michael Baden
33. Applicant called Dr. Michael Baden. 3.EHRR.6.
34. Dr. Baden testified that he has been a forensic
pathologist for the last fifty years. 3.EHRR.10.
35. Dr. Baden opined that Stites was dead before
midnight on April 22, 1996; that there is no
evidence from the autopsy or photos of Stites
that she was sexually assaulted; and that
Stites was dead in Fennell’s truck for at least
four to five hours before being left at the
location where she was found. 3.EHRR.22-23,
34-77.
36. Dr. Baden admitted that “[a]utopsies can be
done by competent people who have different
opinions, or scenes can be looked at and have
difference of opinions, sure.” 3.EHRR.67.
 13a

37. Dr. Baden testified has never spoken with

Fennell, Davis, and was not in Giddings on April
22, 1996. 3.EHRR.80.
38. Dr. Baden testified that he did not conduct, nor
was he present at, Stites’s autopsy, and that his
opinions are based on a records review, which
included photos and video that were not high
resolution, and a video that was not continuous.
3.EHRR.81-84.
39. Dr. Baden confirmed that there was no formal
measure of lividity, rigor, or body temperature
taken for Stites, that no vitreous fluid was
removed from her, and that no ambient
temperature, light intensity, humidity, or
topography were recorded at the crime scene.
3.EHRR.85-86.
40. Dr. Baden acknowledged that the determination
of a sexual assault is not based simply on an
autopsy. 3.EHRR.91-94.
41. Dr. Baden agreed with a learned treatise, Spitz
and Fisher’s Medicolegal Investigation of Death,
that “none of the methods used in establishing
time of death are totally reliable and
mathematically precise. Dogmatic and pinpoint
accuracy in this matter is clearly not
achievable.” 3.EHRR.98.
Lisa Tanner
42. Applicant stipulated to Lisa Tanner’s testimony.
3.EHRR.122.
43. Tanner was the lead prosecutor at Applicant’s
capital murder trial. AX.22, at 1.
 14a

44. Tanner had no knowledge before, at, or after

Applicant’s capital murder trial that Fennell
supposedly told Davis that (1) he arrived home
between 10:00 p.m. and 11:00 p.m. on April
22,1996, and (2) he had consumed some alcohol
on April 22,1996. AX.22, at 1-3.
Missy Wolfe
45. Applicant stipulated to Missy Wolfe’s testimony.
3.EHRR.122.
46. Wolfe was the investigator for Tanner at
Applicant’s capital murder trial. AX.23, at 1.
47. Wolfe had no knowledge before, at, or after
Applicant’s capital murder trial that Fennell
supposedly told Davis that (1) he arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) he had consumed some alcohol on
April 22, 1996. AX.22, at 1-3.
Lydia Clay-Jackson
48. Applicant called Lydia Clay-Jackson.
3.EHRR.123.
49. Lydia Clay-Jackson testified that she was one of
two attorneys who represented Applicant at his
capital murder trial. 3.EHRR.128.
50. Clay-Jackson testified that the defense, at the
time of Applicant’s capital murder trial, did not
have information that Fennell supposedly told
Davis that he (1) had arrived home between
10:00 p.m. and 11:00 p.m. on April 22, 1996, and
(2) had consumed some alcohol on April 22,
1996. 3.EHRR.150.
 15a

51. Clay-Jackson testified that, had she known

Fennell told Davis that he (1) arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have taken the “gloves
off’ when she cross-examined Fennell at
Applicant’s capital murder trial. 3.EHRR.152.
52. Clay-Jackson testified that, had she known
Fennell told Davis that he (1) arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have, during her
cross-examination of Fennell, (a) accused
Fennell of murdering Stites; (b) confronted
Fennell with his Fifth Amendment invocation
made to interrogating law enforcement;
(c) confronted Fennell about his testimony
concerning Stites’s birth control cycle;
(d) brought out a discrepancy regarding his
recollection of his truck’s fuel status; (e) elicited
a conflict regarding the reason he did not drive
Stites to work on April 23, 1996; and (f) brought
out that Fennell closed his checking account on
the day of Stites’s death. 3.EHRR.152-61.
53. Clay-Jackson testified that, had she determined
that a brief relationship Stites had with Jerry
Ormand overlapped with that of Fennell, she
might have called Ormand and his wife to
testify at Applicant’s capital murder trial.
3.EHRR.167.
54. Clay-Jackson testified that had she known
Fennell told Davis that he (1) arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
 16a

April 22, 1996, it would have affected the

forensic investigation into the case and caused
her to direct a forensic pathologist to look into
Stites’s time of death. 3.EHRR.168-69;
4.EHRR.9-12.
55. Clay-Jackson admitted that she did not
remember all the details of Applicant’s capital
murder trial and that she had misremembered a
few details from that trial. 4.EHRR.13.
56. Clay-Jackson admitted that, back in 2000, she
did not remember all the details from
Applicant’s capital murder trial. 4.EHRR.16;
AX.33.
57. In 2003, Clay-Jackson alleged that the State
had failed to turn over a video of the crime
scene, which was proven incorrect. 4.EHRR.16;
RX.1.
58. Clay-Jackson admitted that a large portion of
her opening statement at trial was used to paint
Fennell as a suspect. 4.EHRR.30.
59. Clay-Jackson admitted that defense counsel
investigated Fennell as a suspect prior to
Applicant’s capital murder trial. 4.EHRR.35.
60. Either through cross-examination or evidentiary
presentation, Clay-Jackson made the following
points at Applicant’s capital murder trial that
Fennell was a suspect: (a) Fennell was the only
person with Stites after Carol last saw her; (b)
Fennell told law enforcement what was
disturbed or missing in his truck; (c)
Fennell provided law enforcement with
Stites’s route to work; (d) Stites’s sister,
 17a

Crystal, hired a private investigator; (e)

Fennell had been interviewed on multiple
occasions by law enforcement; (f) Fennell’s
home had never been searched by law
enforcement; (g) Fennell immediately sold
his truck after it was returned by law
enforcement; (h) Fennell invoked his Fifth
Amendment rights during questioning by
law enforcement; and (i) and a friend of
Stites’s thought Fennell was possessive and
possibly slashed Stites’s tires. 4.EHRR.36-
40.
61. Clay-Jackson attempted to introduce at
Applicant’s capital murder trial the polygraph
results from Fennell’s two polygraph sessions,
but the trial judge ruled them inadmissible.
4.EHRR.40.
62. In 2006, Clay-Jackson testified at a prior state
habeas evidentiary hearing regarding Martha
Barnett, a woman who claimed to have seen
Stites and Fennell arguing in Fennell’s truck in
Paige, Texas, around 5:00 a.m. on April 23,
1996. 4.EHRR.42.
63. Barnett’s testimony was inconsistent with the
State’s theory at Applicant’s capital murder trial
that Stites died around 3:00 a.m. on April 23,
1996, and also with Fennell’s testimony at
Applicant’s trial that he was home around 8:00
p.m. on April 22, 1996 until awoken around 7:00
a.m. on April 23, 1996. 4.EHRR.45.
64. Clay-Jackson testified that she did not
believe the CNN interview with Davis was
the only timeline discrepancy at issue, and
 18a

that the discrepancy at issue was a

“scientific discrepancy.” 4.EHRR.45-46.
65. Clay-Jackson testified that, despite being
presented with evidence that the State’s time-of-
death estimate was incorrect and that Fennell
was not where he claimed, Clay-Jackson did not
say at the 2006 state habeas evidentiary hearing
that she would have hired a forensic pathologist,
challenged time of death, or conducted the cross-
examination of Fennell she described in her
present testimony. 4.EHRR.48-52, 69, 77, 89, 95.
66. Clay-Jackson admitted that she received a
Bastrop Police Department report before
Applicant’s capital murder trial that noted
Fennell and Davis were close friends.
4.EHRR.61; RX.2.
67. Clay-Jackson admitted that she could not have
cross-examined Fennell at Applicant’s trial
regarding his polygraph results because it would
have violated the trial court’s order. 4.EHRR.67.
68. Clay-Jackson admitted that the discrepancy
regarding the fuel level of Fennell’s truck was
included in the Bastrop Police Department
report that she received before Applicant’s
capital murder trial. 4.EHRR.74; RX.2.
69. Clay-Jackson believes that she received notice
before Applicant’s capital murder trial that
Fennell closed his checking account. 4.EHRR.79;
AX.26.
70. Clay-Jackson admitted that had the defense
pressed a consent defense—that Stites and
Applicant had a consensual sexual
 19a

relationship—this would have permitted the

State to rebut with extraneous sexual assault
offenses like those the State offered at
punishment. 4.EHRR.83-87.
71. Clay-Jackson admitted that the defense
subpoenaed Jerry Ormand and his wife at
Applicant’s capital murder trial. 4.EHRR.88.
72. Clay-Jackson admitted that Dr. Roberto
Bayardo’s time-of-death estimate given at
Applicant’s capital murder trial was based on an
examination of Stites’s body. 4.EHRR.92.
Calvin Garvie
73. Applicant called Calvin Garvie. 4.EHRR.128.
74. Calvin Garvie testified that he was one of two
attorneys who represented Applicant at his
capital murder trial. 4.EHRR.130.
75. Garvie testified that the defense, at the time of
Applicant’s capital murder trial, did not have
information that Fennell told Davis that he (1)
had arrived home between 10:00 p.m. and 11:00
p.m. on April 22, 1996, and (2) had consumed
some alcohol on April 22, 1996. 4.EHRR.143.
76. Garvie testified that had he known that Fennell
told Davis that he (1) had arrived home between
10:00 p.m. and 11:00 p.m. on April 22, 1996, and
(2) had consumed some alcohol on April 22,
1996, it (a) could have been used as an
inconsistent statement, (b), could have linked
Fennell to the beer cans found at the crime
scene; (c) could have undermined Fennell’s
testimony that Stites took a shower on April 22,
1996; and (d) could have “possibly even
 20a

change[d] the timeframe of death.” 4.EHRR.144-

46.
77. Garvie claimed that he had no way of knowing
about the relationship between Fennell and
Davis. 4.EHRR.148.
78. Garvie admitted that his testimony regarding
possible trial tactic changes “assumes
everything in the CNN transcript is correct,”
and “that the witness is relating what
happened.” 4.EHRR.149.
79. Garvie admitted that he would not recall every
detail from a conversation had twenty years ago.
4.EHRR.150-51.
80. Garvie testified that the defense believed
Fennell was a suspect and knew he had to be
thoroughly investigated. 4.EHRR.159.
81. Garvie testified that the defense had a DNA
expert and that the suspects from whom DNA
samples were collected were excluded from the
beer cans found at the crime scene. 4.EHRR.161.
82. Garvie admitted that a Bastrop Police report
that the defense had prior to Applicant’s capital
murder trial noted that Fennell and Davis were
close friends. 4.EHRR.169; RX.2.
83. Garvie admitted that Dr. Bayardo’s time-of-
death estimate given at Applicant’s capital
murder trial was based on an examination of
Stites’s body. 4.EHRR.172.
84. Garvie stated that he had no reason to believe
that Dr. Bayardo’s time-of-death estimate was
at all based on Fennell’s testimony.
4.EHRR.174.
 21a

85. In 2006, Garvie testified at a prior state habeas

evidentiary hearing regarding Martha Barnett,
a woman who claimed to have seen Stites and
Fennell arguing in Fennell’s truck in Paige,
Texas, around 5:00 a.m. on April 23, 1996.
4.EHRR.175.
86. Garvie admitted that Barnett’s testimony was
inconsistent with the State’s theory at
Applicant’s capital murder trial that Stites died
around 3:00 a.m. on April 23, 1996, and also
with Fennell’s testimony at Applicant’s trial
that he was home around 8:00 p.m. on April 22,
1996 until awoken around 7:00 a.m. on April 23,
1996. 4.EHRR.176.
87. Garvie admitted that the same type of allegation
litigated in 2006 was being litigated again—a
discrepancy with the timeline of events leading
up to Stites’s death as presented at Applicant’s
capital murder trial. 4.EHRR.177.
88. Garvie testified that, despite being presented
with evidence that the State’s time-of-death
estimate was incorrect and that Fennell was not
where he claimed, Garvie did not say at the
2006 state habeas evidentiary hearing that he
would have hired a forensic pathologist.
4.EHRR.179.
David Campos
89. The State called David Campos. 4.EHRR.202.
90. Campos testified that he was employed by the
Bastrop County Sheriff’s Office at the time of
Stites’s murder and was one of the investigators
into her murder. 4.EHRR.203.
 22a

91. Campos interviewed Fennell on April 25, 1996,

wherein Fennell stated that “the last time he
saw [Stites] was the night before she died. He
said that she went to bed at about 8:30 to 8:40
p.m.” 4.EHRR.215.
92. Campos testified that he never heard that
Fennell (1) arrived home between 10:00 p.m.
and 11:00 p.m. on April 22, 1996, and (2) had
consumed some alcohol on April 22, 1996.
4.EHRR.216.
David Board
93. The State called David Board. 4.EHRR.219.
94. Board testified that he was employed by the
Bastrop Police Department at the time of
Stites’s murder and was one of the investigators
into her murder. 4.EHRR.219.
95. Board testified that he never heard that Fennell
(1) arrived home between 10:00 p.m. and 11:00
p.m. on April 22, 1996, and (2) had consumed
some alcohol on April 22, 1996. 4.EHRR.216.
Rocky Wardlow
96. The State called Rocky Wardlow. 4.EHRR.229.
97. Wardlow testified that he was employed by the
Texas Rangers at the time of Stites’s murder
and was the lead investigator into her murder.
4.EHRR.230.
98. Wardlow testified that Davis was not an
investigator into Stites’s murder. 4.EHRR.231.
99. Wardlow testified that he interviewed Fennell
on two occasions and that Fennell told him that
Stites went to bed around 8:30 p.m. on April 22,
 23a

1996, and that he went to bed around 9:00 p.m.

on April 22, 1996. 4.EHRR.232.
100. Wardlow testified that he never heard that
Fennell (1) arrived home between 10:00 p.m.
and 11:00 p.m. on April 22, 1996, and (2) had
consumed some alcohol on April 22, 1996,
4.EHRR.233, though he did confuse this case
with another, the Mary Ann Ardlt case,
regarding beer consumption, 4.EHRR.233.
Charles Penick
101. The State called Charles Penick. 5.EHRR.5.
102. Penick testified that he was the elected
Criminal District Attorney for Bastrop County
at the time of Applicant’s capital murder trial.
5.EHRR.6.
103. Penick did not recall hearing that Fennell (1)
arrived home between 10:00 p.m. and 11:00 p.m.
on April 22, 1996, and (2) had consumed some
alcohol on April 22, 1996, 5.EHRR.233.
Carol Stites
104. The State called Carol Stites. 5.EHRR.11.
105. Carol testified that she is the mother of the
victim in this case, Stacey Stites. 5.EHRR.12.
106. Carol testified that, at the time of Stites’s
murder, Carol lived in an apartment
underneath the apartment Fennell and Stites
shared, and because of the location of the stairs
to her apartment, Carol could hear folks using
the stairs. 5.EHRR.13-15.
 24a

107. Carol testified that, on April 22, 1996, Stites

came home from work at around 1:30 p.m.
5.EHRR.18.
108. Carol testified that, on April 22, 1996, Fennell
arrived home from work after his shift.
5.EHRR.18.
109. Carol testified that, on April 22, 1996, she was
babysitting a young girl named Jennifer whose
mother normally picked her up around 5:00 p.m.
5.EHRR.18.
110. Carol recalled that, on April 22, 1996, Fennell
left for a little league event shortly after
Jennifer as picked up. 5.EHRR.20.
111. Carol recalled that, on April 22, 1996, Fennell
arrived home after the little league event “right
before dusk,” and that he and Stites ran up to
their apartment laughing. 5.EHRR.20.
112. Carol testified that Fennell did not appear
drunk when he got home on April 22, 1996, she
had never seen him drunk, and that she had
“seen [Fennell] have a beer, but most the people
that I know have beers.” 5.EHRR.21.
113. Carol testified that the last time she saw Stites,
Stites was wearing her bed clothes—a t-shirt
and shorts that Stites normally slept in.
5.EHRR.28.
114. The Court takes judicial notice that the sun set
on April 22, 1996, in Giddings, Texas at 8:00
p.m. 5.EHRR.28; RX.4.
 25a

GROUND TWO — SUPPRESSION OF

FAVORABLE, MATERIAL EVIDENCE
Applicant’s Allegation
115. Applicant alleges that “Fennell’s inconsistent
account of his whereabouts on the night of April
22, 1996 . . . establish[es] a Due Process
violation under Brady v. Maryland.” He asserts
that the State possessed “Fennell’s inconsistent
account of his whereabouts” because “Davis was
a Bastrop County Sheriff’s Officer [a]nd the
Bastrop County Sheriff’s Office was the lead
agency investigating [Stites’s] murder.” He
claims that “Fennell’s inconsistent account of his
whereabouts” is favorable because it “is evidence
of innocence.” And he argues materiality
because “the evidence against [Applicant] was
based almost exclusively on now discredited and
disavowed expert testimony,” and because
“Fennell’s inconsistent statement regarding his
whereabouts” would have demonstrated
“Fennell’s consciousness of guilt” and “placed
him arriving home—intoxicated—at the
approximate time of [Stites’s] death as found by
a panel of esteemed forensic pathologists.”
Eighth Appl. 10-12.
Factual Conclusions
116. The Court finds credible Davis’s testimony that
Fennell never told Davis what time he arrived
home on April 22, 1996, and that Davis
surmised Fennell’s arrival time based on his
own granddaughter’s experience in the same
little league in which Fennell previously
coached. 2.EHRR.69.
 26a

117. Davis’s testimony that Fennell never told Davis

what time he arrived home on April 22, 1996, is
consistent with what Davis told CNN in 2016: “I
don’t know how—what time [Fennell got home
on April 22, 1996]. I mean uh, if somebody was
to ask me a direct question about what time
they got home that night, I couldn’t answer
‘cause I don’t know that I was ever told. But it
was later that night after practice. So um, I
would assume definitely; 10:00ish, 11:00 maybe
at night.” AX.1, at 31 (emphasis added).
118. The Court finds that Fennell never told Davis
what time he arrived home on April 22, 1996.
119. The Court finds credible Davis’s testimony that
Stites being asleep when Fennell arrived home
on April 22, 1996 was “an assumption,”
2.EHRR.114, and that he did “not think that
[Fennell] ever” told him that Stites was asleep
when Fennell arrived home on April 22, 1996,
2.EHRR.116.
120. The Court finds that Fennell never told Davis
that Stites was asleep when he came home on
April 22, 1996.
121. The Court finds credible Davis’s testimony that
he was not part of the investigation into Stites’s
murder. 2.EHRR.105.
122. The Court finds credible Wardlow’s testimony
that Davis was not part of the investigation into
Stites’s murder. 4.EHRR.232.
123. The Court finds credible Davis’s testimony he
took time off from his employment as a jailer
with the Bastrop County Sheriff’s Office on
 27a

April 23, 1996, before he had any conversations

with Fennell regarding Fennell’s whereabouts
on April 22, 1996. 2.EHRR.103.
124. The Court finds that Davis was not a part of the
investigation into Stites’s death and was not
acting under color of Texas law when he had a
conversation with Fennell on April 23, 1996.
125. The Court finds that Applicant has not offered
any credible evidence to suggest that the State
possessed information that Fennell (1) arrived
home between 10:00 p.m. and 11:00 p.m. on
April 22, 1996, and (2) had consumed some
alcohol on April 22, 1996.
126. The Court finds credible Davis’s testimony that
he had no personal knowledge of Fennell’s
activities or whereabouts on April 22, 1996.
2.EHRR.105.
127. The Court does not find credible Clay-Jackson’s
testimony that, had she known that Fennell told
Davis he (1) had arrived home between 10:00
p.m. and 11:00 p.m. on April 22, 1996, and (2)
had consumed some alcohol on April 22, 1996,
she would have taken the “gloves off” when she
cross-examined Fennell at Applicant’s capital
murder trial, 3.EHRR.152, because her strategy
at Applicant’s capital murder trial was to
inculpate Fennell as a viable suspect, including
using a large portion of her opening argument to
suggest that Fennell was a viable suspect in
Stites’s death, using cross-examination or
presenting evidence pointing to Fennell as a
viable suspect in Stites’s death, and attempting
to introduce the polygraph results of Fennell’s
 28a

interviews. 4.EHRR.30, 36-40. The trial record

demonstrates that Clay-Jackson strongly
pointed the finger at Fennell as Stites’s killer at
Applicant’s capital murder trial, and her
testimony that she would have done anything
more than cross-examine Fennell with supposed
statements made to Davis that he 1) had arrived
home between 10:00 p.m. and 11:00 p.m. on
April 22, 1996, and (2) had consumed some
alcohol on April 22, 1996, is not credible given
that much of the putative cross-examination
could have been undertaken at Applicant’s
capital murder trial even absent knowledge of
Fennell’s alleged statement to Davis.
128. The Court does not find credible Clay-Jackson’s
testimony that she would have directly accused
Fennell of murdering Stites during cross-
examination because, at the evidentiary
hearing, she erroneously recalled taking this
tack at Applicant’s capital murder trial.
3.EHRR.148.
129. The Court does not find credible Clay-Jackson’s
testimony that she would have directly
confronted Fennell with his Fifth Amendment
invocation to law enforcement because she
elicited that testimony through Wardlow at
Applicant’s capital murder trial. 4.EHRR.38.
130. The Court does not find credible Clay-Jackson’s
testimony that she would have directly
confronted Fennell about his testimony
concerning Stites’s birth control cycle because
nothing prevented her from doing so at
Applicant’s capital murder trial.
 29a

131. The Court does not find credible Clay-Jackson’s

testimony that she would have directly
confronted Fennell about his erroneous
recollection of his truck’s fuel level because she
had that information at the time of trial but did
nothing with it. 4.EHRR.74; RX.2.
132. The Court does not find credible Clay-Jackson’s
testimony that she would have directly
confronted Fennell about the discrepancy in why
he did not drive Stites to work on April 23, 1996,
because she brought out that discrepancy
through cross-examination of Fennell. Compare
44.RR.62 (Carol testifying that Fennell had
court on April 23, 1996, which is why Fennell
was going to drive Stites to work so that he
could keep his truck), with 46.RR.51-52 (Fennell
testifying that he did not have court on April 23,
1996).
133. The Court does not find credible Clay-Jackson’s
testimony that she would have directly
confronted Fennell about the closure of his
checking account on the day of Stites’s death
because she had that information at the time of
trial but did nothing with it. 4.EHRR.79; AX.26.
134. The Court does not find credible Clay-Jackson’s
testimony that she would have possibly called
the Ormands, because it is based on a
conditional—if she had determined that Stites’
relationship with Ormand overlapped that with
Fennell—and because the Ormands were
subpoenaed as witnesses by the defense but
were never called. 4.EHRR.88.
 30a

135. The Court further does not find credible Clay-

Jackson’s testimony that, had she known
Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have taken the above
cross-examination tactics with Fennell because
she did not so testify in 2006 when confronted
with a similar timeline discrepancy. 4.EHRR.48-
52, 69, 77, 89, 95.
136. The Court further does not find credible Clay-
Jackson’s testimony that, had she known
Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have taken the above
cross-examination tactics with Fennell because
her proposed cross-examination is largely
identical to that described in Applicant’s eighth
application, which was filed in June of 2016, and
Clay-Jackson admitted she had not spoken with
Applicant’s current counsel until 2017. Compare
Eighth Appl. 7-8, with 4.EHRR.97-98.
137. The Court further does not find credible Clay-
Jackson’s testimony that, had she known
Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have taken the above
cross-examination tactics with Fennell because
she appeared to be mistaken about the exact
nature of what was supposedly suppressed,
suggesting that there was a “forensic
 31a

discrepancy” at issue instead of the just the

interview Davis gave to CNN. 4.EHRR.45-46.
138. The Court further does not find credible Clay-
Jackson’s testimony that, had she known
Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, she would have taken the above
cross-examination tactics with Fennell because
she had numerous deficits in memory yet
answered the questions regarding her possible
cross-examination without hesitancy.
139. The Court does not find credible Clay-Jackson’s
testimony that had she known Fennell told
Davis that he (1) had arrived home between
10:00 p.m. and 11:00 p.m. on April 22, 1996, and
(2) had consumed some alcohol on April 22,
1996, it would have affected the forensic
investigation into the case and caused her to
direct a forensic pathologist to look into Stites’s
time of death, 3.EHRR.168-69; 4.EHRR.9-12,
because she did not so testify in 2006 when
confronted with a similar timeline discrepancy.
4.EHRR.48-52, 69, 77, 89, 95.
140. The Court does not find convincing Clay-
Jackson’s testimony that had she known Fennell
told Davis that he (1) had arrived home between
10:00 p.m. and 11:00 p.m. on April 22, 1996, and
(2) had consumed some alcohol on April 22,
1996, it would have affected the forensic
investigation into the case and caused her to
direct a forensic pathologist to look into Stites’s
time of death, 3.EHRR.168-69; 4.EHRR.9-12,
because Garvie did not so testify, 4.EHRR.146.
 32a

141. The Court finds that Clay-Jackson did not

satisfactorily explain why a timeline
discrepancy regarding Fennell’s whereabouts
would have called into question Stites’s time of
death, a scientific estimate based on changes in
the deceased’s body.
142. The Court notes that Clay-Jackson did not
testify that she would have called Dr. Baden to
testify at Applicant’s capital murder trial.
143. The Court notes that Dr. Baden did not testify
that his opinion would have been the same at
the time of Applicant’s capital murder trial, that
he was available to testify at Applicant’s capital
murder trial, or that he would have offered the
same testimony as he presented to the Court.
144. The Court notes that Dr. Baden did not testify
that his opinion about Stites’s time of death was
at all influenced by the time Fennell arrived
home, but rather on an autopsy report,
photograph and video of Stites, and various
other documents concerning lividity, purge fluid,
and rigor mortis.
145. The Court does not find credible Garvie’s
testimony that, had he known Fennell had
consumed some alcohol on April 22, 1996, that
he would have been able to link this to the beer
cans at the crime scene, 4.EHRR.144, because
Garvie knew that, through the defense’s DNA
testing of the beer cans, all suspects had been
excluded as contributors, 4.EHRR.161.
146. The Court notes that Garvie did not explain how
Fennell’s alleged statement to Davis that he (1)
had arrived home between 10:00 p.m. and 11:00
 33a

p.m. on April 22, 1996, and (2) had consumed

some alcohol on April 22, 1996, “could possibly
[have] even change[d] the timeframe of death”
for Stites, 4.EHRR.146, and the Court finds
such testimony is entirely speculative.
147. The Court notes that Garvie did not testify that
he would have employed a forensic pathologist
to challenge Stites’s time of death had he known
Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996.
148. The Court finds that Clay-Jackson and Garvie
could not have confronted or introduced
evidence that Fennell told Davis that he (1) had
arrived home between 10:00 p.m. and 11:00 p.m.
on April 22, 1996), and that (2) Stites was asleep
when he arrived home because Fennell never
made those statements to Davis.
GROUND THREE—FALSE TESTIMONY
Applicant’s Allegation
149. Applicant alleges that Fennell testified falsely at
trial because “Fennell was actually out drinking
on the night of April 22, 1996,” instead of being
“at home with [Stites] on th[at] night.” He
asserts that “[h]ad Fennell testified consistent
with his initial statements to . . . Davis, his best
friend, the jury . . . would have learned that
Fennell gave wildly different accounts of his
whereabouts on the night of the murder to his
best friend and to other investigators. This
inconsistency would be construed as affirmative
 34a

evidence of guilt, which clearly could have

affected the judgment of the jury.”
Factual Conclusions
150. The Court finds credible Davis’s testimony that
he had no personal knowledge of Fennell’s
activities or whereabouts on April 22, 1996.
2.EHRR.105.
151. The only evidence Applicant presents suggesting
that Fennell was not at home on April 22, 1996,
around 8:00 p.m. is hearsay, and based on the
recollection of a conversation that occurred some
twenty years ago.
152. The Court finds credible Davis’s testimony that
Fennell never told Davis what time he arrived
home on April 22, 1996, and that Davis
surmised Fennell’s arrival time based on his
own granddaughter’s experience in the same
little league in which Fennell previously
coached. 2.EHRR.69.
153. Davis’s testimony that Fennell never told Davis
what time he arrived home on April 22, 1996, is
consistent with what Davis told CNN in 2016: “I
don’t know how—what time [Fennell got home
on April 22, 1996]. I mean uh, if somebody was
to ask me a direct question about what time
they got home that night, I couldn’t answer
‘cause I don’t know that I was ever told. But it
was later that night after practice. So um, I
would assume definitely 10:00ish, 11:00 maybe
at night.” AX.1, at 31 (emphasis added).
154. The Court finds that Fennell never told Davis
what time he arrived home on April 22, 1996.
 35a

155. The Court finds credible Davis’s testimony that

Stites being asleep when Fennell arrived home
on April 22, 1996 was “an assumption,”
2.EHRR.114, and that he did “not think that
[Fennell] ever” told him that Stites was asleep
when Fennell arrived home on April 22, 1996,
2.EHRR.116.
156. The Court finds that Fennell never told Davis
that Stites was asleep when he came home on
April 22, 1996.
157. The Court finds that Davis had difficulty
recalling his conversation with Fennell from
twenty years ago, had difficulty recalling events
surrounding his 2016 interview by CNN, and
had difficulty recalling some of his prior
testimony in this very proceeding.
158. The Court finds credible Carol’s testimony that,
on April 22, 1996, Fennell arrived home after
the little league event “right before dusk,”
5.EHRR.20, which would have been around 8:00
p.m. on April 22, 1996, in Giddings, Texas,
5.EHRR.28; RX.4.
CONCLUSIONS OF LAW
GROUND TWO—SUPPRESSION OF
FAVORABLE, MATERIAL EVIDENCE
Legal Standard
1. This claim is governed by Brady v. Maryland,
373 U.S. 83 (1963). Pena v. State, 353 S.W.3d
797, 809 (Tex. Crim. App. 2011). To prove a
“Brady violation,” an applicant must
demonstrate (1) the suppression of (2) favorable
evidence (3) that is material, meaning that there
 36a

is a reasonable probability of a different result

had the suppressed evidence been disclosed. Id.
“Additionally, . . the evidence central to the
Brady claim [must] be admissible in court.”
Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim.
App. 2011).
Suppression
2. Applicant has failed to prove that Fennell told
Davis that (1) he arrived home between 10:00
p.m. and 11:00 p.m. on April 22, 1996, and (2) he
had consumed some alcohol on April 22, 1996,
because Applicant presented only hearsay
evidence that Fennell arrived home later than
he testified or consumed alcohol on April 22,
1996; because Davis disavowed that Fennell
ever told him the time he arrived home on April
22, 1996; and because Davis’s memory was
proven suspect multiple times at the evidentiary
hearing. Evidence that does not exist cannot be
suppressed. See, e.g., United States v. Edwards,
442 F.3d 258, 266 (5th Cir. 2006) (“Because
‘[t]he prosecution has no duty to turn over to the
defense evidence that does not exist,’ we reject
Appellants’ Brady claims with respect to Robert
Guidry.” (quoting Brogdon v. Blackburn, 790
F.2d 1164, 1168 (5th Cir. 1986)); Hafdahl v.
State, 805 S.W.2d 396, 399 (Tex. Crim. App.
1990) (“Brady and its progeny do not require
prosecuting authorities to disclose exculpatory
information to defendants that the State does
not have in its possession and that is not known
to exist.”).
3. Assuming that Fennell told Davis that (1) he
arrived home between 10:00 p.m. and 11:00 p.m.
 37a

on April 22, 1996, and (2) he had consumed

some alcohol on April 22, 1996, such knowledge
cannot be imputed to the State because Davis
took no part in the investigation of Stites’s
murder and because Davis was not acting under
color of state law when he spoke with Fennell on
April 23, 1996. Compare Ex parte Castellano,
863 S.W.2d 476, 484-85 (Tex. Crim. App. 1993)
(finding imputation where police officer’s
“participation in the investigation was
considerable” despite being motivated by
personal reasons for committing perjury,
knowing about perjury, and altering evidence).
Favorability
4. Assuming that Fennell told Davis that he
arrived home between 10:00 p.m. and 11:00 p.m.
on April 22, 1996, and that such knowledge
could be imputed to the State, that statement is
favorable because it would have impeached
Fennell’s statements to authorities and his
testimony at trial that he arrived home between
8:00 p.m. and 8:30 p.m. on April 22, 1996. See
Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim.
App. 2006) (noting that “impeachment evidence
is that which disputes or contradicts other
evidence”).
5. Assuming that Fennell told Davis that he had
consumed some alcohol on April 22, 1996, and
that such knowledge could be imputed to the
State, that statement is not favorable because it
does not “justify, excuse, or clear [Applicant]
from fault.” See Harm, 183 S.W.3d at 408.
Materiality
 38a

6. Because Applicant has failed to prove that

Fennell told Davis that he (1) had arrived home
between 10:00 p.m. and 11:00 p.m. on April 22,
1996, and (2) had consumed some alcohol on
April 22, 1996, Applicant cannot show a
reasonable probability of a different outcome at
his capital murder trial.
7. Alternatively, assuming that Fennell told Davis
that (1) he arrived home between 10:00 p.m. and
11:00 p.m. on April 22, 1996, and (2) he had
consumed some alcohol on April 22, 1996, and
that such knowledge can be imputed to the
State, and that both statements are favorable,
Applicant has failed to prove materiality
because such evidence does not make a different
outcome reasonably probable. See Pena, 353
S.W.3d at 809. The additional suspicion that
would have been cast on Fennell at Applicant’s
capital murder trial would not have affected the
outcome because (1) the evidence of Applicant’s
guilt was strong, (2) Applicant forcefully pointed
to Fennell a viable suspect, an allegation which
the jury rejected, (3) Applicant presented no
credible evidence of a consensual relationship
between he and Stites, which would have been
needed to explain why his semen and saliva
were found on a dead woman with injuries and
an appearance indicating abduction and sexual
assault, and (4) significant evidence was
presented that the relationship between Stites
and Fennell was happy and healthy.
8. Alternatively, assuming that Fennell told Davis
that (1) he arrived home between 10:00 p.m. and
11:00 p.m. on April 22, 1996, and (2) he had
 39a

consumed some alcohol on April 22, 1996, and

that such knowledge can be imputed to the
State, and that both statements are favorable,
because there is not a sufficient link between
the supposed statement of Fennell to Davis and
the hiring of a forensic pathologist, and because
Clay-Jackson’s and Garvie’s testimony that they
would have hired a forensic pathologist is either
not credible or nonexistent, and because Dr.
Baden did not testify that his opinion would
have been the same at the time of Applicant’s
capital murder trial, that he was available to
testify at Applicant’s capital murder trial, or
that he would have offered the same testimony
as he presented to the Court at Applicant’s
capital murder trial, his opinions are not
material.
9. Alternatively, assuming that Fennell told Davis
that (1) he arrived home between 10:00 p.m. and
11:00 p.m. on April 22, 1996, and (2) he had
consumed some alcohol on April 22, 1996, and
that such knowledge can be imputed to the
State, and that both statements are favorable,
and that this would have caused Applicant to
retain and present a forensic pathologist with
the opinions of Dr. Baden, Applicant has failed
to prove materiality because such evidence does
not make a different outcome reasonably
probable. See Pena, 353 S.W.3d at 809. In
addition to the reasons why the additional
suspicion that would have been cast on Fennell
at Applicant’s capital murder trial would not
have affected the outcome, Dr. Baden’s opinions,
to the extent that they conflict with those
offered at trial by Dr. Bayardo, would not have
 40a

affected the outcome of trial because (1) they

simply present an alternative explanation that
the jury could have rejected, (2) the evidence of
Applicant’s guilt was strong, and (3) Applicant
presented no credible evidence of a consensual
relationship between he and Stites, which would
have been needed to explain why his semen and
saliva were found on a dead woman with
injuries and an appearance indicating abduction
and sexual assault. Cf. Boyle v. Johnson, 93 F.3d
180, 186 (5th Cir. 1996) (“The fact that other
experts disagreed with Dr. Erdmann is
insufficient, by itself, to call Dr. Erdmann’s
testimony into question.”).
GROUND THREE—FALSE TESTIMONY
Legal Standard
10. To prove a false testimony claim, an applicant
must prove that (1) “the testimony was, in fact,
false, and, if so, (2) whether the testimony was
material.” Ex parte Weinstein, 421 S.W.3d 656,
665 (Tex. Crim. App. 2014). As to the latter, the
applicant “must prove that the false testimony
was material and thus it was reasonably likely
to influence the judgment of the jury.” Id.
Falsity
11. Applicant failed to prove by a preponderance
of the evidence that Fennell’s testimony at
Applicant’s 1998 trial regarding the time he
arrived home on April 22, 1996, was false for
a variety of reasons, including because
Applicant presented no credible evidence
that Fennell arrived home later than he
testified; because the only evidence that
 41a

Fennell arrived home later than he testified

is hearsay; because Davis disavowed that
Fennell ever told him the time he arrived
home on April 22, 1996 and that Stites was
asleep when he arrived home; because
Davis’s memory was proven suspect several
times at the evidentiary hearing; and
because Carol credibly testified that Fennell
arrived home around 8:00 p.m. on April 22,
1996, and that Stites was awake, dressed for
bed, and happy to see Fennell when he
arrived. See Ex parte De La Cruz, 466
S.W.3d 855, 871 (Tex. Crim. App. 2015)
(“[I]nconsistencies do not, without more,
support the trial court’s finding that Torres’s
testimony is false.”).
Materiality
12. Applicant failed to prove that, assuming
Fennell’s testimony at Applicant’s 1998 trial
regarding the time he arrived home was
false, such testimony was material. Even if
Fennell was incorrect about the time he
arrived home on April 22, 1996, that would
not have been reasonably likely to influence
the jury because, at trial, (1) the evidence of
Applicant’s guilt was strong, (2) Applicant
forcefully pointed to Fennell a viable suspect,
an allegation which the jury rejected, (3)
Applicant presented no credible evidence of a
consensual relationship between he and
Stites, which would have been needed to
explain why his semen and saliva were found
on a dead woman with injuries and an
appearance indicating abduction and sexual
 42a

assault, (4) significant evidence was

presented that the relationship between
Stites and Fennell was happy and healthy,
and (5) Carol provided independent
corroboration that Fennell was home in the
“evening” of April 22, 1996, following a little
league event.
RECOMMENDATION
The court recommends that Applicant’s grounds for
relief remanded to this Court―Applicant’s Ground
Two and Ground Three―be denied.
Signed this 5 day of January, 2018.

Doug Shaver
Presiding Judge
21st District Court
Bastrop County, Texas
Sitting by Assignment
 43a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-50,961-07 and WR-50,961-08

EX PARTE RODNEY REED, Applicant

ON APPLICATIONS FOR POST-CONVICTION

WRITS OF HABEAS CORPUS IN CAUSE NO.
8701 IN THE 21ST DISTRICT COURT
BASTROP COUNTY

Per curiam. Alcala, J., filed a concurring and

dissenting opinion with which Walker, J.,
joined. Newell, J., not participating.

ORDER
These are subsequent applications for writs of
habeas corpus filed pursuant to the provisions of
Texas Code of Criminal Procedure Article 11.071 § 5.
In May 1998, a jury convicted applicant of the
offense of capital murder. The jury answered the
special issues submitted pursuant to Texas Code of
Criminal Procedure Article 37.071, and the trial
court, accordingly, set applicant’s punishment at
 44a

death. This Court affirmed applicant’s conviction and

sentence on direct appeal. Reed v. State, No. AP-
73,135 [Reed – 2] (Tex. Crim. App. Dec. 6, 2000)(not
designated for publication). On November 15, 1999,
applicant filed his initial post-conviction application
for writ of habeas corpus in the convicting court. On
February 8, 2001, applicant filed a “Supplemental
Claim for Relief on Application for Writ of Habeas
Corpus” in the convicting court. This Court
subsequently denied applicant relief on his initial
application and construed the supplemental claim as
a subsequent application and dismissed it. Ex parte
Reed, Nos. WR-50,961-01 and WR-50,961-02 (Tex.
Crim. App. Feb. 13, 2002)(not designated for
publication).
Applicant filed his second subsequent habeas
application in the convicting court on March 29,
2005. This Court remanded the case to the trial court
for the development of two claims. After the case was
returned to this Court, we issued an opinion denying
relief. Ex parte Reed, 271 S.W.3d 698 (Tex. Crim.
App. 2008). Over time, applicant filed three more
subsequent writ applications, none of which satisfied
the requirements of Article 11.071 § 5, and the Court
dismissed them. Ex parte Reed, Nos. WR-50,961-04
and WR-50,961-05 (Tex. Crim. App. Jan. 14,
2009)(not designated for publication), and No.
50,961-06 (Tex. Crim. App. July 1, 2009)(not
designated for publication). Applicant filed his sixth
subsequent application in the trial court on February
13, 2015, and a document titled a “Supplemental
Application for Writ of Habeas Corpus” on June 9,
2016.
 45a

In his 2015 application, applicant asserts that

he has newly discovered evidence that supports his
claim that he is actually innocent, that new scientific
evidence establishes his probable innocence pursuant
to Article 11.073 of the Code of Criminal Procedure,
and that [Reed – 3] the State presented false,
misleading, and scientifically invalid testimony
violating his right to due process. See Ex parte
Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009).
In a fourth allegation, applicant asserts that we
should reconsider his previous writ applications in
light of this new evidence.
We find that applicant has failed to make a
prima facie showing on any of his claims. Therefore,
his 2015 subsequent application (our -07) fails to
satisfy any of the exceptions provided in Article
11.071 § 5, and it fails to make the requisite showing
under Article 11.073. Accordingly, the application is
dismissed as an abuse of the writ without reviewing
the merits of the claims. Art. 11.071 § 5(c). Further,
we will not reconsider applicant’s prior writ
applications.
In his 2016 application (our -08), applicant
asserts that he has newly discovered evidence that
supports his claim that he is actually innocent, that
the State’s failure to disclose this newly discovered
evidence violated his due process rights under Brady
v. Maryland, 373 U.S. 83 (1963), and that this newly
discovered evidence shows that the State presented
false and misleading testimony, which violated his
right to due process. See Ex parte Chabot, 300 S.W.3d
768, 771 (Tex. Crim. App. 2009).
After reviewing the 2016 application, we find
that applicant has failed to make a prima facie
 46a

showing of actual innocence. However, we further

find that his Brady and false testimony claims do
satisfy the requirements of Article 11.071 § 5.
Accordingly, we remand those claims to the trial
court for resolution. Applicant has also filed in this
Court and the [Reed – 4] trial court a “Motion for
Deposition of Curtis Davis.” We leave it to the trial
court to rule on this motion as it sees fit.
The trial court shall resolve these issues
within 60 days of the date of this order. Any
extensions of this time shall be obtained from this
Court.
IT IS SO ORDERED THIS THE 17th DAY OF
MAY, 2017.

Do Not Publish
 47a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-50,961-07 & WR-50,961-08

EX PARTE RODNEY REED, Applicant

ON APPLICATIONS FOR POST-CONVICTION

WRITS OF HABEAS CORPUS CAUSE NO. 8701
IN THE 21ST DISTRICT COURT
FROM BASTROP COUNTY

Alcala, J., filed a concurring and dissenting

opinion in which Walker, J., joined.

CONCURRING AND DISSENTING OPINION

These are subsequent applications for post-
conviction writs of habeas corpus filed by Rodney
Reed, applicant, who was convicted and sentenced to
death in 1998 for the capital murder of Stacey Stites.
I respectfully concur in part and dissent in part to
this Court’s judgment that remands the -08 writ
application to the habeas court for further factual
development and dismisses the remainder of
applicant’s claims presented in his -07 application. I
agree with this Court’s determination that it is
 48a

necessary to remand the claims presented in

applicant’s -08 writ application, in which he asserts
that new evidence has [Reed – 2] emerged indicating
that an alternate suspect, Jimmy Fennell, made false
statements about his whereabouts on the night of
Stites’s murder. I, however, disagree with the Court’s
majority’s assessment that all of the claims in
applicant’s -07 writ application are subject to
dismissal due to his failure to make out a prima facie
showing on any of those claims. I would instead
remand applicant’s Article 11.073 and false-evidence
claims to the habeas court for factual development
and findings of fact and conclusions of law so that
this Court may rule on the merits of those claims
with the benefit of a fully developed record. I,
therefore, write separately to explain my rationale.
In his instant application, applicant relies on
the statutory basis in Code of Criminal Procedure
Article 11.073 to assert that new scientific evidence
has emerged that contradicts the scientific evidence
relied upon by the State at trial. See TEX. CODE
CRIM. PROC. art. 11.073; Ex parte Robbins, 478
S.W.3d 678 (Tex. Crim. App. 2014) (reh’g denied Jan.
2016). In addition, he relies on this Court’s false-
evidence jurisprudence to assert that the State’s
expert witnesses provided false or misleading
testimony at his trial, thereby violating his due
process rights. See Ex parte Chabot, 300 S.W.3d 768
(Tex. Crim. App. 2009). In support of his assertions,
applicant presents, among other evidence, a 2012
declaration from medical examiner Roberto Bayardo,
who performed the autopsy on the complainant in
this case. Applicant alleges that, at trial, Dr. Bayardo
testified that his observation of applicant’s intact
sperm at the time of Stites’s autopsy meant that the
 49a

sperm was placed in the vagina “quite recently.”

Later in his testimony, Bayardo stated that this
meant that the sperm was placed [Reed – 3] “a day
or two” before his examination at autopsy, which
occurred around twenty-four hours after Stites’s body
was found. Thus, Dr. Bayardo’s trial testimony
appears to have left the jury with the impression that
applicant’s sperm was likely deposited within the
twenty-four hour period preceding Stites’s death.
Applicant asserts that this testimony was heavily
relied upon by the State as evidence that he sexually
assaulted and killed Stites during the narrow
window of time during which her murder is thought
to have occurred—between 3 a.m. and 5:30 a.m. on
the morning of April 23—and to rebut his defensive
theory at trial that he and Stites had consensual
sexual intercourse more than a day before her
murder and that someone else was responsible for
her killing.
In a 2012 declaration, Dr. Bayardo has
revisited this testimony and he now states as follows:
I am personally aware of medical literature
finding that spermatoza can remain intact in
the vaginal cavity for days after death.
Accordingly, in my professional opinion, the
spermatoza I found in Ms. Stites’s vaginal
cavity could have been deposited days before
her death. Further, the fact that I found “very
few” (as stated in the autopsy report)
spermatoza in Ms. Stites’s vaginal cavity
suggests that the spermatoza was not
deposited less than 24 hours before Ms.
Stites’s death. If the prosecuting attorneys had
advised me that they intended to present
 50a

testimony that spermatoza cannot remain

intact in the vaginal cavity for more than 26
hours, and argue that Ms. Stites died within
24 hours of the spermatoza being deposited, I
would have advised them that neither the
testimony nor the argument was medically or
scientifically supported.
Applicant asserts that this portion of Bayardo’s
declaration indicates a “clear change in a scientists’s
opinion which constitutes a change in scientific
knowledge as discussed in Ex parte Robbins.” See 478
S.W.3d at 690. Applicant asserts that he is entitled to
a new trial [Reed – 4] under Article 11.073 on the
basis of Dr. Bayardo’s revised opinion because, “if the
jury had been told by Dr. Bayardo that Reed’s sperm
was likely left more than a day before [Stites] was
murdered, the connection between the sex and the
murder upon which the sufficiency of the evidence
depended would have been broken, and no rational
jury would have convicted Mr. Reed.”
Similarly, applicant asserts that the State’s
presentation of Dr. Bayardo’s testimony, combined
with the testimony of two other witnesses, left the
jury with the false impression that applicant’s sperm
could have been left only within the twenty-four-hour
period prior to Stites’s death, thus constituting a
violation of his due process rights. See Chabot, 300
S.W.3d at 772; Ex parte Ghahremani, 332 S.W.3d
470, 480 (Tex. Crim. App. 2011). In support, he cites
the testimony of Dr. Bayardo, as well as the
testimony of DPS analyst Karen Blakely, who
testified that twenty-six hours was the “outside
length of time that tails will remain on a sperm head
inside the vaginal tract of the female,” and testimony
 51a

from private DNA analyst Meghan Clement that, in

the course of examining thousands of rape kits, she
could not recall seeing intact sperm where the
sample had been collected more than twenty to
twenty-four hours after intercourse. Applicant
asserts that this testimony was “simply false”
because it is an “accepted truth in forensic pathology
that intact sperm can be found for up to 72 hours.”
Applicant also notes that the matter of the length of
time that intact sperm remains in the body was
emphasized by the State’s prosecutor during closing
[Reed – 5] argument, signaling that it was a key
issue in the case.1 And he notes that this testimony
was clearly important to the jury because it asked to
have Bayardo’s testimony read back to it during its
deliberations. Applicant asserts that he is entitled to
relief on this claim because, “[w]here false testimony
essentially cut off Reed’s only defense to the murder,
there is a reasonable likelihood that the false
testimony could have affected the judgment of the
jury.”

1 Applicant cited three places in the record of the State’s

closing argument where it emphasized the time frame during
which applicant’s sperm must have been deposited:
· “We know, from the credible evidence, that [sperm]
doesn’t hang around for days on end . . . that semen got
in that girl’s body within 24 hours of that eleven o’clock
moment which is when? On her way to work.”
· “[F]ingerprints can last for years. Semen, on the other
hand, can be dated. And semen, specifically spermatoza,
only stays about 24 hours.”
· “[S]emen is not something that hangs around for days
on end.”
 52a

In order to establish that he is entitled to relief

under Article 11.073, applicant must show by a
preponderance of the evidence that he would not
have been convicted if the newly available scientific
evidence had been presented at his trial. Robbins,
478 S.W.3d at 690; TEX. CODE CRIM. PROC. art.
11.073 (permitting granting of post-conviction relief
based on previously unavailable relevant scientific
evidence that contradicts evidence relied on by the
State at trial, based on the court’s assessment that,
“had the scientific evidence been presented at trial,
on the preponderance of the evidence the person
would not have been convicted”). Because this is a
subsequent application, to avoid dismissal, applicant
must allege facts that “are at least minimally
sufficient to bring him within the ambit of that new
legal basis for relief” in the sense that “there is
arguably relevant scientific evidence that [Reed – 6]
contradicts scientific evidence relied on by the state
at trial, and that evidence was not available at trial”
due to the expert changing his opinion. Robbins, 478
S.W.3d at 690. Similarly, with respect to his false-
evidence claim, applicant must make out a prima
facie showing of a constitutional violation by alleging
facts that arguably could demonstrate that the State
presented materially false or misleading testimony at
his trial. See Ex parte De La Cruz, 466 S.W.3d 855,
866 (Tex. Crim. App. 2015). Here, Dr. Bayardo’s
declaration appears to contain new information that
could arguably conflict with certain portions of his
trial testimony. I note here that Dr. Bayardo’s
declaration contains several other statements that
call into question the accuracy of his trial
testimony—he states that the “presence of
spermatoza in Ms. Stites’s vaginal cavity was not
 53a

evidence of sexual assault”; that there was “no

indication that the spermatoza in Ms. Stites’s vaginal
cavity was placed there in any fashion other than
consensually”; that there was no spermatoza in Ms.
Stites’s rectal cavity and thus that there was “no
evidence that any spermatoza was deposited in the
rectal cavity as a result of the sexual assault”; that,
in Dr. Bayardo’s professional opinion, “Ms. Stites was
sexually assaulted in her anal cavity, and that
assault did not result in the deposit of any
spermatoza”; and that the injuries to Ms. Stites’s
anus are “more consistent with penetration by a rod-
like instrument, such as a police baton.” Given these
statements, and because Dr. Bayardo’s declaration
has never before been considered by this Court in a
post-conviction proceeding, I would permit applicant
to litigate his Article 11.073 and false-evidence
claims [Reed – 7] that pertain to Dr. Bayardo’s
declaration.2

2 Applicant raises a number of other issues and claims in

his -07 application, and, as to those matters, I agree with the
Court’s assessment that those claims should be dismissed. In
particular, applicant presents the expert opinions of several
forensic pathologists who challenge the State’s evidence at trial,
but he has failed to demonstrate any reason why he could not
have presented this evidence at some earlier juncture. In
addition, applicant presents claims of actual innocence and a
false-testimony claim based on testimony from a TDCJ
employee who opined that applicant would be a future danger,
and he further asks this Court generally to reconsider its prior
denial of his earlier habeas applications. As to these matters, I
agree with the Court’s assessment that applicant has failed to
present a prima facie basis for relief and that those claims are
thus subject to dismissal.
 54a

To be clear, I do not express any view as to the

merits of applicant’s claims at this juncture. I simply
conclude that applicant has alleged facts in his -07
application on the basis of Dr. Bayardo’s declaration
that arguably could entitle him to relief, and thus I
would permit further factual development of the
claims rather than dismissing them on procedural
grounds as the Court does today.3 Without
conducting an extensive review of the record, and in
the absence of credibility determinations from the
habeas court or live testimony to clarify the meaning
of Dr. Bayardo’s declaration, it is impossible to
determine whether applicant’s claims on this basis
may have any merit. In my view, if the Court must
conduct extensive [Reed – 8] factual and legal
analysis in order to determine whether an applicant
has established a prima facie case for relief, the
better course in that situation is to remand the claim
to the habeas court for findings and conclusions so

3 I am unpersuaded that federal litigation disregarding

Dr. Bayardo’s revised testimony resolves the matters currently
before this Court. In 2014, the federal district court denied
applicant’s federal habeas petition, and that decision was
affirmed by the United States Fifth Circuit Court of Appeals.
See Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014). But his
federal claims are unlike this instant application, in which
applicant relies on the statutory basis in Code of Criminal
Procedure Article 11.073. See TEX. CODE CRIM. PROC. art.
11.073; Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App.
2014) (reh’g denied Jan. 2016). In addition, he relies on this
Court’s false-evidence jurisprudence. See Ex parte Chabot, 300
S.W.3d 768 (Tex. Crim. App. 2009). Although some of the issues
implicated by Dr. Bayardo’s affidavit have been litigated in
federal court and resolved against applicant, I would permit
applicant the opportunity to factually develop his claims
through a live hearing.
 55a

that the parties may fully litigate the matter and

present this Court with an adequate record upon
which to evaluate the claim. This is particularly true
in this situation, given that the Court is already
remanding applicant’s -08 application for further
proceedings. In my view, under these circumstances,
it would be most efficient and prudent to resolve
applicant’s outstanding claims that may have some
merit in a single proceeding.
With these comments, I concur in this Court’s
decision to remand applicant’s -08 writ application.
Because the Court concludes that applicant has
failed to present a prima facie case on any of the
claims raised in his -07 application and dismisses the
application in its entirety as an abuse of the writ
without reviewing the merits of the claims, I dissent
from that portion of the Court’s order.

Filed: May 17, 2017

Do Not Publish
 56a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 73,135

RODNEY REED, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL
FROM BASTROP COUNTY

JOHNSON, J., delivered the opinion of the

Court, in which MANSFIELD, PRICE and
HOLLAND, JJ., joined. MEYERS, J., joined
except as to point of error no. four, in which he
concurred in the result. WOMACK and
KEASLER, JJ., joined except as to point of error
no. six, in which they concurred in the result.
MCCORMICK, P.J., and KELLER, J., concurred
in the result.
 57a

OPINION
Appellant was convicted of capital murder in May
1998. TEX. PEN. CODE §19.03(a). Pursuant to the
jury’s answers to the special issues set forth in TEX.
CODE CRIM. PROC. art. 37.071, §§2(b) and 2(e), the
trial judge sentenced appellant to death. Art. 37.071
§2(g).1 Direct appeal to this Court is automatic. Art.
37.071 §2(h). Appellant raises eight points of error
including a challenge to the factual sufficiency of the
evidence to support the verdict. We will affirm.
STATEMENT OF FACTS
Around 3:00 on the morning of April 23, 1996,
Stacey Lee Stites left the upstairs apartment in
Giddings that she shared with her fiancé, Jimmy
Fennell, to go to her job at an H.E.B. store
approximately thirty miles away in Bastrop. Stites
frequently worked the early morning shift with
Andrew Cardenas and was considered a punctual
employee. Stites would typically arrive before or just
about the same time as Cardenas, and their normal
routine was to walk into the store together. If one
arrived before the other, the early person would wait
in his or her vehicle for the other.
Cardenas was surprised when Stites did not
promptly arrive at work on this particular morning.
Although he waited outside for a short time,
Cardenas went inside in time to begin his shift. As
the morning wore on, Cardenas became increasingly
concerned about Stites. Finally, sometime between

1 Unless otherwise indicated, all future references to

Articles refer to the Code of Criminal Procedure.

 58a

4:30 a.m. and 6:45 a.m., Cardenas called Stites’

mother who lived in an apartment downstairs and
across from Stites’ and Fennell’s apartment. Mrs.
Stites immediately called Fennell and told him that
Stites had never made it to work; she then called the
Bastrop County Sheriff’s Department, the Giddings
and Bastrop Police Departments, and the
Department of Public Safety. Fennell came
downstairs moments later and got the keys to Mrs.
Stites’ car so that he could begin looking for Stites.2
Meanwhile, Bastrop police officer Paul Alexander
was driving his patrol through the parking lots of the
Bastrop H.E.B. and Bastrop High School. Around
5:23 a.m., on another drive through the high school
parking lot, Alexander noticed a red Chevrolet
pickup truck parked in the lot that had not been
there on two previous patrols during his shift.
Alexander requested a check on the license plate. The
return indicated that the truck was registered to a
person with the last name of Fennell and that it had
not been reported stolen. Alexander approached the
truck and noticed a broken piece of woven belt laying
outside the driver’s door of the truck.3 He also looked
inside the locked truck, but he saw nothing
suspicious and resumed his patrol duties.
When Mrs. Stites called the Bastrop Sheriff’s
Department, the dispatcher apparently remembered
Alexander’s discovery of Fennell’s truck and

2 Stites did not own a car and drove Fennell’s red S-10
Chevrolet pickup truck to work.
3 Alexander did not touch or otherwise move the piece of
belt.
 59a

contacted Alexander, who returned to his office to

write up a report. Bastrop police officers thereafter
had the truck towed to a secure location and
contacted Fennell, who met them to identify anything
that he did not recognize as belonging there. When
officers opened the truck, they found one of Stites’
shoes and one of her earrings on the floorboard. They
also found pieces of a plastic drinking glass, which
Stites normally took with her to work, both in the
door console and wedged in the seat. The driver’s seat
of the truck was reclined with the seatbelt still
engaged, and the officers found what appeared to be
bodily fluid on the transmission hump between the
driver’s and passenger’s seats. Fennell told the
officers that the piece of belt that Alexander had
found outside the truck was part of a belt that Stites
often wore.
Around 2:45 that afternoon, Kenneth Osborn
stopped along a dirt road near Highway 1441 in
Bastrop County to pick wildflowers and discovered a
body lying in a ditch. He notified the authorities. The
body was identified as Stacey Stites. Personnel from
several law enforcement agencies went out to secure
the area, and the crime-scene team from the Texas
Department of Public Safety Crime Laboratory in
Austin was called to help process the scene.4
While processing the site, officers found another
section of a woven belt. Subsequent comparison with
the piece of belt that Alexander had found in the high

4 This team had previously been called in to help process

Fennell’s truck, but temporarily stopped its efforts there and

concentrated on the place where Stites’ body was found.
 60a

school parking lot indicated that the two pieces were

from the same belt. An abrasion around Stites’ neck
appeared to have been made by the belt. Suspecting
from the condition of the body that Stites had been
sexually assaulted, the leader of the crime-scene
team, Karen Blakely, took vaginal and breast swabs.
An immediate test of the vaginal swabs indicated
that semen was present. Later testing in the
laboratory confirmed the presence of intact
spermatozoa.5
While performing an autopsy on Stites’ body, Dr.
Robert Bayardo noted bruising on the top of her head
that was consistent with having been struck by a fist.
He also found what appeared to be a post-mortem
burn on Stites’ left forearm. By comparing the pieces
of belt that were found at the two scenes and the
ligature mark on Stites’ neck, Dr. Bayardo
determined that Stites had been strangled with the
woven belt around 3:00 a.m. on April 23, 1996.
During the autopsy, Dr. Bayardo took an additional
set of vaginal swabs and found intact spermatozoa,
indicating recent deposit. He also found several
superficial lacerations around Stites’ anus which
were consistent with penile penetration and
determined that these injuries were inflicted at or
very near the time of death. On a rectal swab, Dr.
Bayardo found what appeared to be heads of

5 Intact sperm indicated to Blakely that they had been

deposited very recently. Her testimony was later corroborated

by Meghan Clement of LabCorp, who testified that in ten and a
half years of serology work, she had never seen spermatozoa
remain intact for more than 24 hours after a sexual assault.
 61a

spermatozoa, again indicating recent penetration.6

Because of the determination that the anal
penetration occurred at the time of Stites’ death, law
enforcement personnel concluded that whoever
deposited the semen in Stites’ body had murdered
her.
Wilson Young, a DNA analyst with the
Department of Public Safety (D.P.S.), performed
DNA tests on the various bodily fluids collected.
From his testing, Young determined that the semen
from Stites’ underwear and from the vaginal and
rectal swabs and the saliva found on the breast
swabs all came from the same person.
During the investigation of Stites’ murder, law
enforcement personnel talked with many people who
knew Stites, including family, friends, co-workers,
and anyone else they thought might have
information about her murder. Because of the semen,
investigators also asked Stites’ male associates to
give them a blood sample. Everyone who was asked
to give samples did so, and the collected samples
were forwarded to the D.P.S. laboratory for testing.
During the year following Stites’ murder, officers
submitted blood samples from twenty-eight different
individuals. Each potential suspect, including Stites’
fiancé, was absolutely excluded from being the donor
of the semen found in Stites’ body. There was no
indication throughout the investigation that Stites
was in any way associated with appellant.

6 Dr. Bayardo testified that spermatozoa break down more

rapidly in the anal cavity than in the vaginal cavity.

 62a

In late February or early March 1997, appellant

became a suspect when he attempted to commit a
similar crime against another victim.7 Officers were
already aware of appellant, his habit of walking the
streets of Bastrop in the middle of the night, and his
frequent presence at Long’s Star Mart during the
early morning hours.8 Appellant also lived in the
area and often walked along the railroad tracks
through town.9
Once appellant became a suspect, D.P.S. searched
its files and found that it already had a sample of
appellant’s DNA on file.10 D.P.S. analysts tested the
sample and determined that appellant could not be
excluded as the donor of the semen. Armed with this
information, Sgt. David Board of the Bastrop Police
Department talked with appellant, who told Sgt.
Board that he did not know Stacey Stites and knew
only what he had seen on the news about the murder.

7 Approximately six months after Stites’ murder, appellant

tried to abduct another young woman during the same time of
night and from the same area where Stites disappeared. This
information was admitted as an extraneous offense at
punishment, but was not presented at guilt/innocence.
8 Long’s Star Mart was located along the route Stites drove

to go to work.
9 Fennell’s truck was found next to the same railroad tracks
in an area located only six-tenths of a mile from appellant’s
residence.
10 The database sample came from a previous allegation of

appellant’s rape of his mentally disabled girlfriend. This

information was not presented during guilt/innocence phase of
the trial in the instant case.
 63a

Shortly thereafter, officers obtained samples of

appellant’s blood, hair, and saliva under a search
warrant. After obtaining appellant’s known samples,
Wilson Young compared those samples to the
evidence samples and determined that appellant’s
DNA was consistent with that of the semen recovered
from Stites’ body. Independent, and more
discriminating, DNA testing also determined that
appellant’s DNA was consistent with the DNA of the
evidence samples. Young calculated that 99.8% of the
African-American and Caucasian populations and
99.92% of the Hispanic population would be excluded
by comparison with that sample. Young also
performed DNA tests upon blood samples obtained
from appellant’s father and three brothers, each of
whom was excluded as being a possible donor.
The D.P.S. laboratory concluded its testing and
sent appellant’s known DNA, Stites’ known DNA, a
portion of the vaginal swabs, and a portion of the
rectal swabs to LabCorp, a well-known North
Carolina laboratory, for independent testing.
LabCorp performed additional DNA tests and
determined that the DNA recovered from Stites’ body
was consistent with appellant’s DNA. Appellant’s
expert, who did her own independent testing, also
could not exclude appellant as being the donor of the
sperm found in Stites’ body.
Appellant attempted to refute the DNA evidence
against him by asserting that either Jimmy Fennell,
David Lawhon, another man who was initially
suspected by the police of the murder, or one of three
“mystery men” actually murdered Stites. However,
 64a

the state countered each of appellant’s theories and

questioned the credibility of appellant’s witnesses.11
POINTS OF ERROR
In his first point of error, appellant asserts that
the evidence is factually insufficient to support the
verdict. In a factual sufficiency review, this Court
views all the evidence and sets aside the verdict only
if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Clewis v.
State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).12
In conducting such a review, we begin with the
presumption that the evidence is legally sufficient
under Jackson v. Virginia, 443 U.S. 307 (1979). Jones
v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L.
Ed.2d 54 (1997). Next, we consider all of the evidence
in the record, comparing the evidence which tends to
prove the existence of the elemental fact in dispute
with the evidence which tends to disprove it. Jones,
supra. We are authorized to disagree with the jury’s
determination, even if probative evidence exists
which supports the verdict, but we must avoid
substituting our judgment for that of the fact-finder.
Jones, 944 S.W.2d at 647-48. A clearly wrong and

11 Appellant does not raise this matter in his brief or

illustrate how it does or does not contribute to the factual
sufficiency of the evidence in his case. However, we have
reviewed all of the evidence and considered it in responding to
appellant’s point of error.
12 The continued vitality of this standard was recently

reaffirmed in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App.

2000).
 65a

unjust verdict occurs where the jury’s finding is

“manifestly unjust,” “shocks the conscience,” or
“clearly demonstrates bias.” Jones, 944 S.W.2d at
648.
The thrust of appellant’s argument under this
point is that the evidence is factually insufficient
because “other than the DNA evidence, there is no
direct evidence which supports the verdict or ties
[a]ppellant to the offense.” Appellant argues that
“when the only direct evidence in a case is expert
scientific testimony, a conviction should not be
permitted to stand when the evolution of the science
is such that experts are still disagreeing about the
fundamentals of interpreting data.”
Expert scientific testimony that is unreliable is
also inadmissible. See Nenno v. State, 970 S.W.2d
549, 560 (Tex. Crim. App. 1998) (noting that in Kelly
v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992),
Court of Criminal Appeals held that Texas Rules of
Evidence required satisfaction of three-part
reliability test before novel scientific evidence would
be admissible). On the other hand, reliable scientific
testimony has its basis in sound scientific
methodology and is admissible. Griffith v. State, 983
S.W.2d 282, 287-288 (Tex. Crim. App. 1998), cert.
denied, __ U.S. __, 120 S. Ct. 77, 145 L. Ed.2d 65
(1999). Once admitted, such evidence can be
sufficient to support a conviction. See, e.g., Roberson
v. State, 16 S.W.3d 156 (Tex. App. — Austin 2000,
pet. ref’d), and cases cited therein. To the extent that
appellant is arguing against the reliability of DNA
evidence, we have previously held that such evidence
is admissible when it meets the standards of
reliability set forth by our rules of evidence. See, e.g.,
 66a

Massey v. State, 933 S.W.2d 141, 152-53 (Tex. Crim.

App. 1996); Campbell v. State, 910 S.W.2d 475, 479-
79 (Tex. Crim. App. 1995), cert. denied, 517 U.S.
1140, 116 S. Ct. 1430, 134 L. Ed.2d 552 (1996); Flores
v. State, 871 S.W.2d 714, 722 (Tex. Crim. App. 1993),
cert. denied, 513 U.S. 926, 115 S. Ct. 313, 130 L.
Ed.2d 276 (1994); Hicks v. State, 860 S.W.2d 419,
422-23 (Tex. Crim. App. 1993), cert. denied, 512 U.S.
1227, 114 S. Ct. 2725, 129 L. Ed.2d 848 (1994); Kelly,
824 S.W.2d at 569-74. Appellant does not point to
any place in the record where he objected in the trial
court on this basis.13 See TEX. R. APP. P. 38.1(h).
Given the strength of the DNA evidence
connecting appellant to the sexual assault on Stites
and the forensic evidence indicating that the person
who sexually assaulted Stites was the person who
killed her, a reasonable jury could find that appellant
is guilty of the offense of capital murder. The verdict
is not so against the great weight and preponderance
of the evidence as to be manifestly wrong and
unjust.14 Point of error one is overruled.
In his second point of error, appellant asserts that
the trial court erred in overruling his Batson
challenge to the state’s use of peremptory strikes on

13 The citations in appellant’s brief to our case law

concerning the reliability of scientific evidence (Hartman v.
State, 946 S.W.2d 60 (Tex. Crim. App. 1997); Kelly, supra) refer
to other points of error.
14 Appellant did present a defense at trial that some other

person could have committed this crime, but he does not argue
that evidence under this point. Our review of that evidence does
not change our resolution of the issue.
 67a

venire members Harvey Lee Scroggins and Byron

Alvin Mitchell. See Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed.2d 69 (1986). Under Batson,
a defendant must make a prima facie showing of
racial discrimination in the state’s exercise of its
peremptory strikes. Id. at 96-97, 106 S. Ct. at 1723.
After such a showing, the burden shifts to the state
to articulate race-neutral explanations for its
questioned strikes. The defendant then has the
opportunity to rebut those explanations. Id. at 97-98,
106 S. Ct. at 1723-24. The trial court must determine
whether the defendant has carried his burden of
proving racial discrimination. Id. at 98, 106 S. Ct. at
1724. The trial court’s determination is accorded
great deference and will not be overturned on appeal
unless it is clearly erroneous. Chamberlain v. State,
998 S.W.2d 230, 236 (Tex. Crim. App. 1999), cert.
denied, __ U .S. __, 120 S. Ct. 805, 145 L. Ed.2d 678
(2000).
In his argument, appellant asserts that he made a
prima facie case of discrimination by showing that
the state struck the only two African-Americans in
the venire. He notes (with only general references to
the record) that the prosecutor “testified as to her
alleged reasons for cutting” the venire members and
that the trial court then overruled appellant’s Batson
challenge.
According to the record, the prosecutor set out the
state’s goals for voir dire,15 and stated the state’s

15 The state’s two stated goals were to select jurors who (1)
felt comfortable working within the Texas system in which the
death penalty is an option, and (2) had at least some
(cont’d)
 68a

specific reasons for striking each of the complained-of

venire members. With regard to Scroggins, she stated
that he appeared to have some “pretty significant
reservations” about participating in a jury where the
death penalty was an option.16 The prosecutor also
noted that Scroggins had indicated that he was
estranged from his four children and had been jailed
at least once for not paying child support. With
regard to Mitchell, the prosecutor noted that he felt
that capital punishment should be abolished, and
stated that he could never personally return a verdict
in which the death penalty would be assessed.
Mitchell further noted that he did not believe that he
or anyone else had the right to determine who lives
and who dies. Appellant did not thereafter cross-
examine the prosecutor as to the reasons given, made
only minimal argument to the trial court, and did not
address the reasons given by the prosecutor for
striking the two men.
The state’s explanations are race-neutral on their
face and are reasonable. In the absence of rebuttal,
we cannot hold that the trial court abused its
discretion in finding that appellant failed to carry his

________________________
(cont’d from previous page)
rudimentary knowledge of the world around them, specifically
regarding the realm of scientific evidence.
16 During voir dire, Scroggins stated that he would vote

against the death penalty if he were in the Texas Legislature.

Scroggins also stated in his questionnaire that he did not feel
that the death penalty served any legitimate purpose in society
and that he professed no knowledge whatsoever of scientific
evidence.
 69a

burden. See Chamberlain, 998 S.W.2d at 236.

Appellant’s second point of error is overruled.
In his third point of error, appellant contends that
the trial court erred when it permitted the state to
introduce testimony from a D.P.S. criminalist about
whether the crime scene reflected a “crime of
passion.” Specifically, appellant complains that the
testimony of Karen Blakely was outside the scope of
her expertise and, therefore, was lay testimony.17 The
record reflects that appellant objected to this
testimony on the grounds that it called for
speculation, was not relevant, and the probativeness
of the information was substantially outweighed by
unfair prejudice. Because appellant’s objection at
trial does not comport with the complaint he now
makes on appeal, he has not preserved anything for
our review. TEX. R. APP. P. 33.1; see also Trevino v.
State, 991 S.W.2d 849, 855 (Tex. Crim. App. 1999).
Point of error three is overruled.
In his fourth point of error, appellant complains
that the trial court erred in excluding evidence that
Jimmy Fennell had been deceptive during two
polygraph examinations. Appellant states that he
repeatedly attempted to demonstrate at trial that the
polygraph information was both reliable and relevant
and that he proffered testimony that two different
examiners tested Fennell, and both found that he
gave deceptive answers.

17 Karen Blakely was the D.P.S. chemist/criminalist who

specialized in and testified about the DNA and serological

evidence in the case.
 70a

Appellant asserts that “[p]olygraph evidence

meets the criteria established by Kelly v. State, 824
S.W.2d 568 (Tex. Crim. App. 1992)] and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed.2d 469 (1993)] and is
admissible in a criminal case.”18 Appellant also notes
that the federal courts have begun to re-examine the
admissibility of polygraph evidence in light of
Daubert and that several states have followed this
example and re-examined their own laws, with many
now allowing the admission of polygraph evidence
under specified circumstances.
As we have previously stated, to be considered
reliable, evidence derived from a scientific theory
must satisfy three criteria in any particular case: (a)
the underlying scientific theory must be valid; (b) the
technique applying the theory must be valid; and (c)
the technique must have been properly applied on
the occasion in question. Hartman, 946 S.W.2d at 62;
Kelly, 824 S.W.2d at 573. The proponent of this
evidence must prove by clear and convincing evidence
that the scientific evidence is reliable. Kelly, 824
S.W.2d at 573. Absent an abuse of discretion, we will
not disturb the trial court’s decision regarding the
admission of such evidence. Griffith, 983 S.W.2d at
287; see also General Elec. Co. v. Joiner, 522 U.S.
136, 141-42, 118 S. Ct. 512, 517, 139 L. Ed.2d 508
(1997).

18 See also Hartman v. State, 946 S.W.2d 60 (Tex. Crim.

App. 1997) (Daubert standard is virtually identical to standard

previously formulated by Texas Court of Criminal Appeals in
Kelly).
 71a

Although appellant states that he repeatedly

attempted to demonstrate at trial that the polygraph
information was both reliable and relevant, we have
examined the record and found little evidence of such
demonstrations. The evidence proffered by appellant
concerning the polygraph information goes to the
issue of relevance, i.e., whether Fennell was telling
the truth; however, we find scant evidence in the
record indicating that appellant made a showing of
the reliability of such evidence, based on the three
Kelly criteria. Indeed, following his proffers,
appellant argued to the trial court only that the Fifth
Circuit has held that such a determination regarding
admission of polygraph evidence should be made on a
case-by-case basis.19 The defense called on Pat
Carmack, a probation officer with a polygraph
license, to testify to the reliability of polygraph
evidence; yet, on cross-examination, Carmack
admitted that there could be reliability problems
with such evidence. Given all this, we cannot say
either that appellant made a “clear and convincing”
showing that such evidence was reliable, or that the
trial court abused its discretion in excluding such
evidence. Point of error four is overruled.
In his fifth point of error, appellant argues that
the trial court erred in admitting several autopsy
photographs, state’s Exhibits 80 through 87 and 80a
through 87a,20 into evidence because their prejudicial
19 See United States v. Posado, 57 F.3d 428 (5th Cir. 1995)
(holding that polygraph evidence is no longer per se
inadmissible).
20 Despite appellant’s inclusion of state’s exhibits 85 and

85a, the record does not reveal the existence of such exhibits.
 72a

effect outweighed their probative value. TEX. R.

CRIM. EVID. 403.21
Rule 403 of the Texas Rules of Criminal Evidence
states:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, or needless presentation of
cumulative evidence.
Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant
evidence will be more probative than prejudicial.
Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
App. 1997); Montgomery v. State, 810 S.W.2d 372,
389 (Tex. Crim. App. 1990); Jones v. State, 944
S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied,
522 U.S. 832, 118 S. Ct. 100, 139 L. Ed.2d 54 (1997);
Long, 823 S.W.2d at 271. The trial court’s decision
will not be disturbed on appeal unless there has been
an abuse of discretion, that is, the decision falls
outside the zone of reasonable disagreement. Jones v.
State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998),
cert. denied, __ U.S. __, 120 S. Ct. 444, 145 L. Ed.2d
362 (1999).
A court may consider several factors in
determining whether the probative value of evidence

21 The Texas Rules of Criminal Evidence and the Texas

Rules of Civil Evidence were combined into the Texas Rules of

Evidence, which became effective March 1, 1998.
 73a

is substantially outweighed by the danger of unfair

prejudice, including the number of exhibits offered,
gruesomeness, detail and size, whether they are in
color or black and white, close-up or distant, and
whether the body depicted is clothed or naked.
Chamberlain, 998 S.W.2d at 237.
Regarding the photographs complained of in the
instant case, we first note that exhibits numbered
80-a through 84-a, 86-a, and 87-a are all 4” x 6” in
size and exhibits numbered 80 through 84, 86, and 87
are enlarged duplicates of the smaller photographs.22
Exhibits 80/80a through 84/84a and 87/87a all show
the manner and means of the victim’s death or other
injuries which occurred in the course of the attack.
Because the photographs show no more than the
crime scene and the nature of the victim’s injuries,
the trial court could have reasonably concluded that
the probative value of the photographs was not
substantially outweighed by the danger of unfair
prejudice. Ladd v. State, 3 S.W.3d 547, 568 (Tex.
Crim. App. 1999), cert. denied, __ U.S. __, 120 S. Ct.
1680, 146 L. Ed.2d 487 (2000). We cannot say that

22 None of the original photographs were included in the

appellate record sent to this Court, but the black-and-white

xerox copies of the smaller exhibits appear to sufficiently
represent the actual photographs for purposes of this appeal.
Neither appellant’s brief nor the record reveals the size of the
larger exhibits, but the state asserts in its brief that the larger
photographs are 16” x 20”. We will presume for the sake of
analysis that 16” x 20” is the correct size. We will also assume
that all are in color. Furthermore, because appellant does not
argue that the enlarged photos are more prejudicial than their
smaller counterparts due to their size, we will address the
photographs in their relative pairs, as does appellant.
 74a

the trial court abused its discretion in admitting

them.
Exhibits 86 and 86a, on the other hand, require
additional analysis. We have previously stated that
autopsy photographs are generally admissible unless
they depict mutilation of the victim caused by the
autopsy itself. Rojas v. State, 986 S.W.2d 241, 249
(Tex. Crim. App. 1998). These photographs depict the
victim’s skull after the scalp has been cut and
“reflected” back. Although this type of photograph is
particularly gruesome, medical examiner Dr. Roberto
Bayardo testified that, looking at the outside of the
head, he did not notice any injuries to the head.
However, once he “reflected” the skull to look at the
inside, he saw multiple bruises, leading him to
conclude that the victim had been struck on the head
with a fist. Because this “reflected” view was
apparently the only way to visually depict these
injuries, and because the testimony and presentation
of the photographs were brief and to the point, we
cannot say that, in this case, the trial judge was
outside the zone of reasonable disagreement in
allowing these exhibits. Appellant’s fifth point of
error is overruled.
In his sixth point of error, appellant complains
that the trial court erred when it permitted the state
to strike at appellant over his counsel’s shoulders. In
attacking the credibility of the evidence the defense
had presented, the prosecutor noted that appellant
had initially given the police a statement that he did
not know Stacey Stites. However, upon being
confronted with the DNA evidence, the state asserted
that defense counsel had concocted a defensive theory
that Stites and appellant were having a secret affair.
 75a

In support of this theory, appellant put on various

witnesses to testify that they had seen appellant and
Stites together at some point in time. It was in
reference to one of these witnesses that the
complained-of argument arose. Specifically, appellant
complained of the following state’s argument
regarding the testimony of defense witness Iris
Lindley:
So you hear from Ms. Lindley, Iris Lindley.
And usually when I talk to jurors I have to
talk to you and say, you know, it’s not like
it is on TV, you don’t usually get to cross-
examine people like on TV. Well, I can’t
[say] that here because Ms. Lindley is a
witness who I must say is utterly devoid of
credibility. Utterly devoid. And your job is
to judge the credibility of the witnesses,
and you have the right to believe all, none
or some of what they say. How much of
what Ms. Lindley said are you going to
believe? She comes in here and she tells
you,
“Yeah, I saw a girl come up and talk to
[appellant].”
“What was her name?”
“Stephanie.”
“Stephanie?”
You saw [defense counsel] go, “What did
you say?” And [the witness] said,
“Stephanie.” And then you could kind of see
her go, uh-oh, I got my script wrong.
 76a

[BY DEFENSE COUNSEL:] Objection,

striking at the defendant through counsel.
I’m going to object to that, Judge.
THE COURT: It’s overruled. Go ahead.
[BY THE PROSECUTOR:] She got her
script wrong, so then she says, “No, no,
Stacey, Stacey. Yeah, that’s it, Stacey.”
Okay, sure.
And then [the witness] says that this girl
drove up in a gray truck. I saw her in a
gray truck. Well, we know Stacey didn’t
drive a gray truck. She got that part of the
script wrong, too. Then this is when it gets
classic. [Defense counsel] shows [the
witness] [Stites’] driver’s license picture. “Is
this the girl?” “No.” So then we take this
picture. “Is this the girl?” Well, gee, what
do you think she’s going to say now? “Yeah,
that’s her.” Gheez.
Permissible areas of jury argument include: (1)
summation of the evidence; (2) reasonable deductions
from the evidence; (3) an answer to the argument of
opposing counsel; or (4) a plea for law enforcement.
Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App.
1996). Prosecution argument that the witnesses for
the defense are not worthy of belief may fall under
summation of or deduction from the evidence or
answer to defense argument. Satterwhite v. State,
858 S.W.2d 412, 425 (Tex. Crim. App.), cert. denied,
510 U.S. 970, 114 S. Ct. 455, 126 L. Ed.2d 387 (1993).
However, final arguments that result in uninvited
and unsubstantiated accusation of improper conduct
directed at a defendant’s attorney are manifestly
 77a

improper and serve only to inflame the minds of the

jury to the accused’s prejudice. Mosley v. State, 983
S.W.2d 249, 258 (Tex. Crim. App. 1998), cert. denied,
526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed.2d 550
(1999); Wilson, 938 S.W.2d at 59. Indeed, trial judges
should assume responsibility for preventing this type
of argument. Mosley, 983 S.W.2d at 258.
While the argument in the present case does not
directly refer to defense counsel, the statement that
the witness had gotten her “script” wrong necessarily
implied that counsel had a hand in coaching the
witness. This is a necessary implication because only
counsel would have had a grasp both of the facts of
the case and of the information needed to support the
defensive theory. Furthermore, no evidence appears
in the record that any kind of “script” even existed.
Therefore, the argument potentially injected a new
fact into the case which was outside the record. See
Wilson, supra. Because the argument, albeit
impliedly, attacked defense counsel’s honesty and
integrity as an attorney, we hold that the argument
was improper and that the trial judge erred in over-
ruling appellant’s objection. Hence, we must
determine whether this error warrants reversal.
As we noted in Mosley, 983 S.W.2d at 259,
improper comments on defense counsel’s honesty do
not rise to the level of a constitutional violation.
Rather, we have characterized such comments as
falling outside the areas of permissible argument. See
also Wilson, 938 S.W.2d at 59. Our harm analysis is
thus governed by TEX. R. APP. P. 44.2(b), which
provides that: “Any other error, defect, irregularity,
or variance that does not affect substantial rights
must be disregarded.” Because this harmless error
 78a

rule was taken directly from Federal Rule of

Criminal Procedure 52(a) without substantive
change, we have looked to federal caselaw for
guidance in construing the rule. See Mosley, 983
S.W.2d at 259-261. In applying the federal rule to
improper argument cases, federal courts generally
look to three factors: (1) severity of the misconduct
(the magnitude of the prejudicial effect of the
prosecutor’s remarks); (2) measures adopted to cure
the misconduct (the efficacy of any cautionary
instruction by the judge); and (3) the certainty of
conviction absent the misconduct (the strength of the
evidence supporting the conviction). Id. (citing to
United States v. Millar, 79 F.3d 338, 343 (2nd Cir.
1996) and United States v. Palmer, 37 F.3d 1080,
1085 (5th Cir. 1994), cert. denied, 514 U.S. 1087, 115
S. Ct. 1804, 131 L. Ed.2d 730 (1995)).
Applying this three-factor test, we first note that,
while the comments were inappropriate, they did not
directly accuse the defense attorneys of lying or of
manufacturing evidence. Cf. Dinkins v. State, 894
S.W.2d 330, 357 (Tex. Crim. App. 1995) (comment by
prosecution to jury that defense counsel “wants to
mislead you a little bit” not as egregious as
accusation that defense counsel was paid to
“manufacture evidence” and “get this defendant off
the hook”), cert. denied, 516 U.S. 832, 116 S. Ct. 106,
133 L. Ed.2d 59 (1995). Furthermore, the comments
ultimately went to the issue of the truthfulness and
credibility of a witness, an issue which it is
ultimately the jury’s duty to evaluate. Hence, the
first factor of the harm test weighs only slightly in
appellant’s favor.
 79a

As for the second factor, no curative action was

taken. In addition, the prosecutor reemphasized the
statements after the trial court overruled appellant’s
objection. Thus, the second factor weighs heavily in
favor of appellant.
The third factor, certainty of conviction, weighs
heavily in favor of the state. Although appellant
initially told the police that he was not acquainted
with Stites, he asserted a defense based on a
consensual sexual relationship with her. Appellant
frequented the area where the crime occurred, and
the police saw him there at about around the time of
the murder. According to testimony about the DNA
evidence from both state and defense experts,
appellant could not be excluded as the donor of the
semen recovered from Stites’ body, while all of
appellant’s close male relatives and male colleagues
of Stites were excluded. The pathologist indicated
that the donor of the semen was likely also the
murderer, because the condition of Stites’ body
indicated that the sexual assault occurred at the time
of death. Balancing all these factors, we find the
error harmless. Point of error six is overruled.
In his seventh point of error, appellant asserts
that the trial court erred when it permitted the state
to comment on his failure to testify. Specifically,
appellant complains about the following closing
argument by the state:
And isn’t it interesting that we talked a lot
about the fact that Jimmy [Fennell] didn’t
have an alibi. Jimmy didn’t have an alibi
for that night. Jimmy didn’t have anybody
accounting for his whereabouts because
Stacey was the only one who could have
 80a

accounted for his whereabouts. It’s

important to note that nobody could ever
find anything inconsistent with what he
told you. Nobody. They canvassed his
apartment, they looked everywhere, and
nobody could find anything inconsistent.
But it’s true, Jimmy didn’t have an alibi.
But ask yourselves, is there anyone else
here who didn’t have an alibi? Is there
anyone else who we’ve heard evidence
about that didn’t have an alibi? Yes, there
is, the defendant.
Appellant submits that this argument was a
comment on his failure to testify in that it could only
have been interpreted by the jury as a statement that
it had never heard from him. We disagree.
Appellant correctly notes that the Fifth
Amendment, Article I, §10, of the Texas Constitution,
and Article 38.08 of the Code of Criminal Procedure
all prohibit the state from commenting on a
defendant’s failure to testify in a manner that invites
the jury to construe the defendant’s silence as
evidence of guilt. However, pointing out to the jury
that a defendant has failed to present evidence other
than his own testimony is not necessarily a comment
on his failure to testify. See, e.g., Ladd, 3 S.W.3d at
569; Wolfe v. State, 917 S.W.2d 270, 279-80 (Tex.
Crim. App. 1996). By the plain language of the
argument itself, read in context, the above comment
is a reference to appellant’s failure to present
witnesses other than himself. Indeed, after
appellant’s objection was overruled, the prosecutor
said:
 81a

Don’t you know that if somebody, anybody,

would have been able to come her [sic] and
tell you, yeah, [appellant] was asleep in bed
at my house at three o’clock in the morning
the night of April 23rd. If anyone, family
member, friend, girlfriend, anyone on this
earth could have come here and told you
[appellant] was at home in bed with them,
and alibied him, you would have heard
from them.
Because the prosecutor did not err in commenting
on appellant’s failure to call defense witnesses other
than himself, appellant’s seventh point of error is
overruled.
In his eighth point of error, appellant asserts that
the “trial court erred in admitting [at punishment]
evidence of a 1987 extraneous act offense for which
appellant had been acquitted.” In his brief, appellant
appears to argue that the admission of this
extraneous offense violated the doctrines of double
jeopardy and collateral estoppel under Ashe v.
Swenson, 397 U.S. 436, 443 (1970).23 For purposes of

23 At trial, appellant objected, simply stating, “It’s our

position that such evidence should be inadmissible.” After
further discussion, appellant stated, “You are allowing the
jury to consider information that will be prejudicial to the
defendant in this particular case, and violative of his Eight
Amendment [sic] as well as the corollary of the Texas
Constitution.” Arguably, neither of these statements
provides a sufficiently specific objection to preserve error on
appellant’s claims on appeal. However, because the state
utilized our decision in Powell v. State, 898 S.W.2d 821, 830
(Tex. Crim. App. 1994), cert. denied, 516 U.S. 991, 116 S. Ct.
524, 133 L. Ed.2d 431 (1995), overruled on other grounds,
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999), cert.
(cont’d)
 82a

analysis, we assume, without deciding, that the 1987

extraneous offense was improperly admitted.
In the extraneous offense of which appellant
complains, appellant was tried and acquitted of
sexually assaulting Connie York in her Wichita Falls
apartment. York testified, in the instant case, that
she did not consent to sex with appellant. However,
appellant was acquitted in York’s case, apparently on
the basis that the sex was consensual.
The state also put on evidence that appellant:
broke into twelve-year-old Angela Hamby’s home and
beat, bit, raped, sodomized, and threatened to kill
her; frequently beat and raped the mother of his two
children while they were dating and, after she had
broken off their relationship, broke into her home
and raped her while their two children watched;
raped Vivian Harbottle on the railroad tracks in the
middle of the night and laughed at her when she
asked him not to kill her; anally raped and physically
abused his mentally disabled girlfriend, Caroline
Rivas; abducted, assaulted, and attempted to rape
Linda Schlueter six months after the abduction, rape,
and murder of Stacey Stites.
Given the evidence presented, and that the
majority of the evidence of extraneous offenses
presented, including the instant case, was
substantially similar to the complained-of evidence,
________________________
(cont’d from previous page)
denied, __ U.S. __, 120 S. Ct. 1840, 146 L. Ed.2d 782 (2000),
at trial to show admissibility, and Powell addresses
admission on double jeopardy grounds, we address
appellant’s point of error. See TEX. R. APP. P. 33.1(a)(1)(A).
 83a

we determine beyond a reasonable doubt that the

admission of the evidence did not contribute to
appellant’s punishment. See TEX. R. APP. P. 44.2.
Point of error eight is overruled.
Finding no reversible error, we affirm the
judgment of the trial court.

Johnson, J.

Date Delivered: December 6, 2000

En banc
Do Not Publish
 84a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,693

EX PARTE RODNEY REED, Applicant

ON APPLICATION FOR A WRIT OF HABEAS

CORPUS IN CAUSE NUMBER 8701 IN THE
21ST DISTRICT COURT OF
BASTROP COUNTY

KEASLER, J., delivered the opinion of the

Court in which MEYERS, PRICE, JOHNSON,
HERVEY, HOLCOMB, and COCHRAN, JJ.,
joined. KELLER, P.J., filed a concurring
opinion. PRICE, J., filed a concurring opinion.
WOMACK, J., concurred.

OPINION
Rodney Reed was convicted and sentenced to
death for the murder of Stacey Lee Stites. In this
second subsequent application for a writ of habeas
corpus, Reed has failed to prove that the State
suppressed evidence in violation of Brady v.
Maryland. Reed has also failed to meet the requisite,
 85a

gateway standard of innocence—showing that it is

more likely than not that no reasonable juror would
have convicted him in light of the new evidence not
presented at trial—under Article 11.071, Section
5(a)(2) of the Texas Code of Criminal Procedure.
Relief is therefore denied.
[702] I. Facts
Stacey Lee Stites's partially clothed body was
discovered on the side of a desolate country road in
Bastrop County, Texas on April 23, 1996.
Stacey and her mother, Carol Stites, moved to
Bastrop from Smithville in 1995 after Stacey
graduated from high school. After briefly working for
a car dealership in Bastrop, Stacey began working at
the Bastrop H.E.B., a grocery store, as a cashier and
bagger in October 1995. In January 1996, Stacey and
her mother moved to the nearby town of Giddings so
that Stacey could be with her fiancé, Jimmy Fennell.
Fennell, who had completed the police academy at
the Capital Area Planning Counsel Organization
(CAPCO) in October 1995, was hired as a patrol
officer with the Giddings Police Department in
December. With a long-term interest in law
enforcement, Fennell had previously been employed
by the Bastrop County Sheriff's Office as a jailer.
Carol described Stacey and Fennell as inseparable
since they began dating a few weeks after meeting at
the Smithville Jamboree in May 1995. By late
December 1995, the two were engaged.
Stacey, Carol, and Fennell moved into an
apartment complex just outside Giddings. Stacey and
Fennell shared an apartment on the second floor of
 86a

the apartment building, and Carol lived in a separate

one-bedroom apartment downstairs.
With a big church wedding planned for May
11, 1996, Stacey transferred into the produce
department at H.E.B. to earn more money. The new
assignment required her to report to work at 3:30
a.m. to stock produce for the day. Normally, she
would wake up between 2:45 to 2:50 a.m. and take
anywhere from five to twenty minutes getting ready
to leave for work; she would dress in her H.E.B.
uniform, which consisted of blue pants and a red
shirt with an H.E.B. insignia on the front. Typically,
she would wear a white T-shirt and carry the red
shirt with her on the way out the door, along with a
plastic cup of juice or water. Although Stacey had
access to Carol's white or gray Ford Tempo, she
routinely drove Fennell's red Chevrolet S-10
extended-cab truck to work. Carol's car was
unreliable and had broken down on the road in the
past. When commuting to work, Stacey would take
Highway 290 to Highway 21 and then Loop
150/Chestnut Street, over the railroad tracks into
Bastrop. The drive took approximately twenty-five to
thirty minutes. When she finished her shift in the
early afternoon, Stacey would usually go to Carol's
apartment, take a nap, and then get up and prepare
things with Carol for the upcoming wedding.
After leaving work on April 22, 1996, the day
before she died, Stacey arrived at Carol's apartment
early in the afternoon. She ate lunch and took a nap.
Fennell came home from work a few hours later, and
having borrowed Carol's Ford Tempo, Fennell
returned Carol's extra set of car keys to Carol by
placing them on a shelf in her apartment. Carol
 87a

designated the extra set as Stacey's set. The three

then briefly talked about their schedules for the
following day. Stacey was scheduled to be at work at
3:30 a.m., and Fennell was not scheduled to work.
Fennell and Stacey had planned to go to the
insurance agent and to pick out flowers for the
wedding ceremony after Stacey got off of work. When
Fennell suggested driving Stacey to work, Carol
offered to drive him to Bastrop to meet Stacey so that
Fennell could sleep in. However, Fennell declined
Carol's offer, stating that he would drive Stacey to
work. Fennell then left in his truck to coach a little-
league-baseball team with his friend and coworker,
Officer David Hall. He returned between 8:00 and
8:30 [703] p.m. Stacey met Fennell outside of Carol's
apartment, and according to Carol, the two then ran
upstairs laughing “as hard as they could.”
When Fennell and Stacey returned to their
apartment, they showered together. Although Stacey
was taking birth-control pills, the two did not have
sexual intercourse because, at this point in her
prescription cycle, the vitamin pills she was taking
allowed for a greater possibility of pregnancy. The
two also discussed their plans for the next day for a
second time. Abandoning their earlier plan, they
agreed that Stacey would take Fennell's truck to
work and that Fennell would arrange to have Carol
take him to meet Stacey in Bastrop when she got off
of work. Stacey then went to sleep at 9 p.m., while
Fennell stayed up and watched the news.
The next morning, April 23rd, Andrew
Cardenas, Stacey's coworker in the produce
department, arrived at the Bastrop H.E.B. around
3:30 a.m. and waited for Stacey in the parking lot.
 88a

Cardenas would usually wait in his car for Stacey to

arrive so that they could “keep an eye on each other,
to make sure nobody was around and walk inside the
store together....” Cardenas regarded Stacey as a
punctual employee, and when she failed to show up
for work, he became concerned. Cardenas eventually
went into work to start his shift, but he kept an eye
out for Stacey.
At 5:23 a.m., while on routine patrol, Officer
Paul Alexander with the Bastrop Sheriff's
Department observed Fennell's truck parked in the
Bastrop High School parking lot. Mindful that the
truck had not been parked there during his previous
patrol of the area and that there were no other
vehicles in the lot, Officer Alexander contacted the
dispatcher and requested a stolen-vehicle check. The
dispatcher reported that the vehicle was registered to
an individual with the last name Fennell. Although
Officer Alexander knew Jimmy Fennell, he did not
know him well, and it did not enter his mind that the
truck belonged to Jimmy Fennell. When Officer
Alexander looked inside the cab with his flashlight,
he noticed that the driver's seat was reclined and
that there were books and clothing on the seats.
Outside the driver's side door on the ground, Officer
Alexander observed a small piece of a broken belt
with a buckle. After noting that there was no
shattered glass, that the ignition was intact, and that
the driver's side door was locked, Officer Alexander
concluded that nothing was out of order and returned
to his patrol duties.
Still looking out for Stacey to arrive at work,
Cardenas finally decided to call Carol between 6:30
and 7:00 a.m. When Cardenas told Carol that Stacey
 89a

failed to show up for work, Carol became upset and

immediately yelled out for Fennell. Cardenas then
went back to work, and Carol called Fennell on the
phone, waking him up. Frantic, Carol told Fennell
that H.E.B. called and told her that Stacey did not
show up for work. Fennell rushed down the stairs,
putting on a shirt on the way down. He told Carol to
call authorities and tell them that he and Carol were
looking for Stacey. Carol had both sets of keys to her
car, so Fennell took Stacey's set and drove to Bastrop
in Carol's Tempo to look for Stacey. He drove to the
H.E.B. and then returned to Carol's apartment. He
did not see any sign of Stacey or the truck.
Meanwhile, officers with the Bastrop Police
Department were looking for Stacey, and David
Board, an investigator with the Department, called
Carol to ensure her that they were doing everything
possible to locate Stacey.
At approximately 9:00 a.m., after authorities
received the missing-persons report, Ed Selmala, an
investigator with the Bastrop Police Department,
was dispatched to [704] the Bastrop High School
parking lot. Upon arrival, Investigator Selmala
notified other law enforcement officers, including
Board, of the truck's location and requested
assistance. While numerous investigators from the
Bastrop Police and Sheriff's Departments were
photographing the truck and other pieces of evidence,
Officer Alexander was called back into work to
explain why he ran the license plate on the truck
earlier that morning and to write a report.
The truck was later taken to a local tow shop
and held until it could be transported to Austin so
that members of the Texas Department of Public
 90a

Safety Crime Laboratory (DPS Crime Lab) could

process it for evidence. While the truck was at the
tow shop in Bastrop, authorities requested Fennell's
presence to identify items found in and outside of the
truck. Fennell was specifically instructed not to touch
anything and to peer into the cab and identify
anything that was not supposed to be in the vehicle.
Fennell observed several things in the truck that
were “out of the ordinary.” First, one of the tennis
shoes that Stacey normally wore to work was on the
floorboard of the passenger's side of the truck.
Second, there was a foamy substance resembling
saliva on the carpet covering the hump over the
truck's transmission. Third, there were broken pieces
of green plastic in the console from the type of cup
that Stacey usually took with her in the truck.
Fourth, the driver's seat was laid back at a forty-five-
degree angle. Fifth, the driver's seatbelt was still
buckled. And sixth, there was a large smudge on the
back window on the passenger's side. Fennell also
identified several items found outside the truck.
First, there were carbon copies of checks from his
checkbook. And second, regarding the piece of the
belt with a buckle attached, Fennell told
investigators that it was part of the belt that Stacey
normally wore to work. After this, Fennell returned
to his apartment complex in Giddings.
When the truck was delivered to the DPS
garage in Austin, a crime-scene team began to
process it for evidence. The team stopped their initial
overview of the truck when Stacey's body was
discovered by Kenneth Osborn shortly before 3:00
p.m. on Bluebonnet Drive, located off of FM 1141.
Osborn, a real estate appraiser, was early for a 3:00
o'clock appointment and decided to drive on
 91a

Bluebonnet Drive to pick some flowers for his wife.

He spotted Stacey's body among some thorny brush
in a ditch on the side of the road. When Osborn
approached Stacey's body, he realized that she was
dead. He got back into his car, stopped at a house
nearby, called the police, and then went back to
Bluebonnet Road to wait for the police.
John Barton, an investigator with the Bastrop
County Sheriff's Department, was one of the first
law-enforcement officers to arrive at the scene. He
covered Stacey's body with a green blanket to prevent
the media, circling above in a helicopter, from taking
photographs. He also closed off the crime scene and
began to photograph the area and Stacey's body.
Shortly thereafter, Bastrop authorities, joined by
Texas Ranger L.T. Wardlow, who became the
designated lead investigator assigned to work with
both the Bastrop Police and Sheriff's Departments,
decided to call in DPS Crime Lab members to process
the scene.
The DPS crime-scene team arrived in Bastrop
from Austin at approximately 5:15 p.m. Karen
Blakley, who specialized in DNA and serology, was
designated the team leader by her coworker, Wilson
Young. Other members of the team, led by Blakley,
included a trace analyst, a photographer, a latent-
print examiner, and a trainee in serology and DNA.
Detailing [705] the condition of Stacey's body,
Blakley noted that Stacey was missing a shoe and
that her white sock was clean, indicating that she
had not likely walked on an outside surface. An
H.E.B. name tag with the name “Stacey” written on
it was found in the crook of Stacey's leg, and a white
T-shirt, which Fennell later identified as belonging to
 92a

him, was strewn over some brush near Stacey's body.

Stacey was clothed in a black bra and a pair of blue
pants with a broken zipper. Her visible green
underwear was wet in the crotch and bunched
around her hips. Viewing this as indicative of a
sexual assault, Blakley tested for the presence of
semen, and the initial test yielded a positive result.
Blakley then collected additional swab samples from
Stacey's vagina and breasts. Because rigor mortis
had set in, Blakley could not determine if Stacey had
been anally sodomized. “She was already very stiff,
and in order for me to try to get to the anal area I
could possibly cause injury or further damage and
make it look like she had suffered something that she
didn't.”
According to Blakley, it “looked like a great
force had been applied [to Stacey's neck] ... because it
was like an indentation but red, like it had cut into
her skin.” Blakley concluded that the injury was
caused by a piece of webbed belt that was located
near Stacey's body on the side of the dirt road
“[b]ecause it matched the pattern that was on
[Stacey's] neck.” And when the piece of belt with a
buckle found near Fennell's truck at the high school
was brought to the scene, Blakley compared the two
and concluded that they matched. Another
criminalist on the team designated to search for trace
evidence concurred with Blakley's determination,
concluding that the pieces matched. Going a step
further, he also concluded that the belt had been torn
not cut.
Documenting other injuries to Stacey's body,
Blakley observed that there were scratches on her
abdomen and arms, a burn from a cigarette on her
 93a

arm, and shallow wounds on her wrists and back that

looked like they were caused by fire-ant bites.
Blakley also documented a large amount of mucus
that ran from Stacey's nose, down the side of her
face, and into her hair.
Terry Sandifer, the latent-fingerprint
examiner, collected two Busch beer cans that were
located across the road from where Stacey's body was
discovered. When Sandifer processed the cans for
fingerprints at the lab, she discovered no suitable
fingerprints to analyze.
After processing the scene, Blakley returned to
the lab that evening around 11:00 p.m. so that she
could look at the substance on the vaginal swabs
under a microscope. She discovered intact sperm—
sperm heads with the tails still attached—that, in
her opinion, indicated that the sexual activity was
recent. Her conclusion was based on a published
study finding that “26 hours is about the outside
length of time that tails will remain on a sperm head
inside the vaginal tract of a female.” She immediately
reported her finding to Ranger Wardlow. Ranger
Wardlow viewed the presence of semen as a “smoking
gun,” surmising that the evidence of sexual assault
gave the perpetrator a motive to kill. Ranger
Wardlow theorized that identifying the man who left
the semen would lead to the discovery of Stacey's
killer.
Dr. Robert Bayardo, the Travis County
Medical Examiner, conducted an autopsy on Stacey's
body the following afternoon at 1:50. He estimated
that Stacey died on the 23rd of April at 3:00 a.m.,
give or take a few hours, based on changes that occur
in the body after death. Dr. Bayardo noted that
 94a

Stacey had pre- and post-mortem [706] injuries. He

differentiated between the two based on the absence
of bleeding; once the heart stops beating, there is no
more bleeding and no more bruising. The burn, which
Blakley believed was caused by a cigarette, occurred
after Stacey died, as did several scratches, in
Bayardo's opinion. Although Stacey's skull showed no
outward signs of injury, when Dr. Bayardo looked
inside the skull, he documented multiple bruises that
“had the appearance of injuries sustained by being
struck on the head with the finger knuckles with a
closed hand.” Comparing the injury pattern on
Stacey's neck with the pieces of webbed belt collected
by authorities, Dr. Bayardo concluded that the belt
was the murder weapon and that Stacey died as a
result of asphyxiation caused by strangulation. He
estimated that asphyxiation takes approximately
three to four minutes and that a person becomes
unconscious within one to two minutes.
Because of evidence indicating sexual assault,
Dr. Bayardo took vaginal swabs. Viewing the swabs
under a microscope, he observed the presence of
sperm with both heads and tails. This, according to
Dr. Bayardo, indicated that the sperm had been
introduced into Stacey's vagina “quite recently.”
Continuing the sexual-assault exam, Dr. Bayardo
took rectal swabs. Viewed under a microscope, he
identified several sperm heads without any visible
tails, which led him to report the result of the test as
negative. Sperm, according to Dr. Bayardo, breaks
down much faster in the rectum than it does in the
vagina because of the presence of other bacteria in
the rectum. When conducting a visual exam of
Stacey's rectal area, Dr. Bayardo noticed that her
anus was dilated and that there were some
 95a

superficial lacerations on the posterior margin. In his

opinion, this was consistent with penile penetration,
even though he did not entirely rule out the
possibility that the presence of sperm in the anus
was the result of seepage from the vagina. Utilizing
his education and experience about determining
whether a particular injury occurred before or after
death, Dr. Bayardo concluded that Stacey sustained
the injury to her anus at or around the time of her
death and that the penetration was therefore not
consensual.
Because Blakley had prior commitments,
Young took over the serological duties on the 24th.
Young conducted two types of Polymerase Chain
Reaction (PCR) DNA testing, DQ-Alpha and D1S80,
on Stacey's blood, the vaginal swabs taken by Blakley
and Dr. Bayardo, and the substance found on the
crotch of Stacey's underwear. Young conducted only
one type of PCR DNA testing, DQ-Alpha testing, on
the anal swabs taken by Dr. Bayardo because the
quantity of sample was limited.
Every person receives one DQ-Alpha allele and
one D1S80 allele from each parent; therefore, every
person possesses two DQ-Alpha alleles and two
D1S80 alleles. Stacey's blood possessed the DQ-Alpha
alleles of 1.2 and 4 and the D1S80 allele of 24, which
meant that each of her parents contributed a 24
D1S80 allele to her genetic makeup. On the male
portion of the vaginal swabs taken by Dr. Bayardo,
the results showed DQ-Alpha alleles 1.2, 3, and 4 and
D1S80 alleles of 22 and 24. The presence of three
DQ-Alpha alleles, according to Young, is a common
occurrence when there is carryover of DNA from
either of the two donors that cannot be entirely
 96a

eliminated during the testing process and does not

affect the validity of the results. The 22 D1S80 allele
was foreign to Stacey. Regarding the vaginal swab
taken by Blakley, the male portion showed DQ-Alpha
alleles of 1.2 and 3 and D1S80 alleles of 22 and 24.
This signified no carryover from Stacey and indicated
that the semen donor possessed the DQ-Alpha [707]
alleles of 1.2 and 3 and the D1S80 alleles
of 22 and 24. Testing on the male portion from the
rectal swabs indicated the presence of DQ-Alpha
alleles 1.2, 3, and 4. While there was carryover, the 3
DQ-Alpha allele was foreign to Stacey. Testing of the
male potion of DNA from the crotch of Stacey's
underwear showed the presence of DQ-Alpha alleles
1.2 and 3 and D1S80 alleles 22 and 24, indicating the
absence of any carryover. Finally, testing on the
swabs from Stacey's breasts showed the presence of
DQ-Alpha alleles 1.2, 3, and 4 and D1S80 alleles of
22 and 24. The 3 DQ-Alpha allele and the 22 D1S80
allele were foreign to Stacey, even though there was
carryover. Given the results, Young concluded that
there was a single semen donor.
Young also participated in processing the
truck on the 25th, accompanied by Sandifer, the
latent-print examiner, and Ranger Wardlow. Blakley
joined them the next day when she returned to work.
In processing the truck and the carbon copies of
Fennell's checks found outside the truck for prints,
Sandifer did not discover anything remarkable.
Sandifer could find only a few items with suitable
prints. When she examined the prints, she was either
unable to make a match or identified the prints as
belonging to either Stacey or Fennell. Young focused
on looking for the presence of blood or semen but
discovered none. And although Young collected other
 97a

items, including a portion of the saliva or mucus

substance that Fennell previously noticed on the
carpet over the transmission hump, he did not
discover anything significant that would help in
identifying the perpetrator. Blakley, having observed
Stacey's body, noted that the substance on the
transmission hump looked similar to the mucus that
had flowed out of Stacey's nose.
Young, Ranger Wardlow, and Blakley all took
note of the reclined position of the driver's seat and
that the driver's seatbelt was fastened. Ranger
Wardlow specifically noted that the lap portion of the
belt looked like someone sat on it because it was in a
downward bow. The three then tested whether it was
possible to pull a person from the vehicle while the
seatbelt was fastened. Putting Blakley, who was
similar in height and weight to Stacey, in the driver's
seat with and without the lap belt on, Ranger
Wardlow and Young took turns pulling her from the
vehicle by either the feet or the shoulders. In each
instance, Ranger Wardlow and Young were able to
remove Blakley from the truck. Further, when
Young, who was six-foot-two, sat in the reclined
driver's seat, he noticed that he had a clear view out
of the back window of the truck in the rearview
mirror. When DPS completed processing the truck, it
was returned to Fennell. Fennell immediately
transported it to the dealership and traded it in.
Over the course of the next eleven months,
authorities focused their investigation on people that
Stacey knew, and with a $50,000 reward offered by
H.E.B., numerous leads and information poured in.
For instance, a newspaper-delivery person reported
that Stacey's body was not on Bluebonnet Drive
 98a

when he drove by the site where her body was found

at 4:00 a.m. In all, officials interviewed hundreds of
people, including former classmates, boyfriends, and
coworkers, as well as Stacey's friends and coworkers
at H.E.B. Over twenty-eight male suspects were
identified, some immediately and some during the
ensuing investigation. Each suspect was asked to
consent to give blood, hair, and saliva samples. With
the exception of one, Brian Haynes, all of the
suspects offered their consent and provided the
samples. Although Haynes refused to consent, he was
compelled to provide [708] samples after authorities
obtained a search warrant. Authorities also
requested and obtained samples from Officer Hall.
Because of his friendship with Fennell, Officer Hall
was viewed as a suspect. Upon request, he
voluntarily provided samples.
Hall, who lived approximately one block away
from Fennell's apartment, had an alibi—that he was
home with his wife, Carla Hall, when Stacey
disappeared. When investigating Officer Hall,
Ranger Wardlow found no evidence refuting Officer
Hall's alibi. The alibi, coupled with DNA testing
excluding Officer Hall, led Ranger Wardlow to
conclude that Officer Hall had not been involved in
Stacey's death.
As the last known person to see Stacey alive,
Fennell was deemed a suspect from the outset.
Despite this, authorities never made an effort to
search Fennell's apartment. Fennell, however, was
vigorously interrogated on several occasions by
Ranger Wardlow, who was, at various times, joined
by Investigators Selmala, Barton, or Board. Fennell
also voluntarily provided authorities with a blood
 99a

sample, and even though DNA testing excluded him

as the donor of the semen, authorities tried to make a
case against him anyway. Ruling out the possibility
that Fennell used Carol's Ford Tempo during the
commission of the offense because Fennell had to
retrieve the keys from Carol on the morning of the
23rd before he went looking for Stacey, Ranger
Wardlow investigated alternative methods of
transportation that Fennell could have used. Toward
that end, Ranger Wardlow examined taxi records and
the vehicle mileage on all of the cars belonging to the
Giddings Police Department. This investigation
revealed nothing, and officials believed that Fennell
could not have walked the thirty-five miles from
Bastrop to Giddings between 3:00 a.m. and 6:45 a.m.
Authorities also canvassed Fennell's apartment
complex, looking for anyone that could shed some
light on anything relating to Stacey or Fennell on the
morning of the 23rd. No one reported being awake
and about that morning. Finding no evidence to
support Fennell's involvement in the crime,
authorities eventually eliminated him as a suspect.
David Lawhon, Brian Haynes's brother,
emerged as a viable suspect shortly after Stacey was
killed when authorities discovered that he murdered
a woman named Mary Ann Arldt in Elgin. Arldt was
murdered by Lawhon a few weeks after Stacey was
killed, and officials learned that Lawhon had bragged
about killing Stacey. Because the two cases bore
some similarities, authorities homed in on Lawhon in
investigating Stacey's case. A few people informed
authorities that there had been a relationship
between Lawhon and Stacey, but authorities were
unable to confirm any connection between the two.
Indeed, a mutual friend never had any indication
 100a

from either Lawhon or Stacey that they knew one

another. Like Fennell, Lawhon was excluded as the
donor of the semen through DNA analysis and was
later eliminated as a suspect.
Investigator Selmala also became a suspect in
August 1996 after he committed suicide in his home.
Ranger Wardlow investigated his death. A note
written by Investigator Selmala's girlfriend was
found by his body. The note revealed that he was
distraught over his relationship with his girlfriend.
Taking into account his knowledge about
Investigator Selmala, which included the note and
the investigation into Stacey's death, Ranger
Wardlow found no reason to conclude that
Investigator Selmala had any involvement in
Stacey's death. Indeed, the investigation into Stacey's
death revealed no connection between Investigator
Selmala and Fennell or [709] Investigator Selmala
and Officer Hall. The only common thread between
Investigator Selmala and the other two was that all
three were law-enforcement officers. Nevertheless,
Ranger Wardlow directed that a blood sample be
drawn from Selmala during Selmala's autopsy and
submitted to DPS for DNA testing. Ranger Wardlow
made this decision anticipating that someone might
try to link Investigator Selmala's suicide to Stacey's
murder. If such an allegation ever arose, Ranger
Wardlow would then be able to give an answer—
DNA testing cleared Investigator Selmala as a
suspect.
All of the other potential suspects that were
investigated were excluded as a result of DNA
testing.
 101a

Eventually, officials received information that

led them to look into Reed, an African-American who
was approximately the same height as Young, as a
suspect. Throughout their investigation, officials
found nothing that indicated that Stacey knew Reed.
Reed lived in the City of Bastrop on Martin Luther
King Drive near the railroad tracks. Several of Reed's
family members and friends, as well as his girlfriend,
lived nearby. Bastrop High School is also located
near the railroad tracks, about sixth-tenths of a mile
from Reed's house. The location of Reed's home was
significant to authorities because Fennell's truck was
found nearby at the Bastrop High School. Authorities
had, early on in the investigation, theorized that the
location was convenient for the perpetrator.
Reed was frequently seen by Bastrop patrol
officers walking in the area near his home late at
night. When he worked the night shift in 1995
through the early part of 1997, Officer Michael
Bowen would see Reed almost every night between
9:00 p.m. to 3:00 a.m. or 4:00 a.m. When Officer
Bowen saw Reed, Reed was usually at Long's Star
Mart, located near Reed's house on Loop
150/Chestnut Street and Haysel Street. Bowen also
saw Reed walking along the railroad tracks on more
than one occasion. Officer Steven Spencer reported
seeing Reed in the early morning hours walking near
Long's Star Mart and the All Star Grocery, which
was located at Loop 150/Chestnut and Pecan Street.
Officials contacted DPS to inquire about
whether Reed had a DNA sample on file with the
state database, which includes compiled DNA from
convicted sexual offenders. When they learned that
there was a sample, they requested a comparison
 102a

between Reed's DNA and the DNA from the vaginal

swab taken by Blakley. Michelle Lockhoof, a
specialist in DNA and serology with DPS, conducted
DQ–Alpha and D1S80 PCR testing on the two
samples. Reed's DQ–Alpha alleles were identified as
1.2 and 3 and his D1S80 alleles were identified as 22
and 24. When compared with the sample taken from
Stacey, Reed could not be excluded as the donor of
the semen. In Young's opinion, 99.8% of the
Caucasian population, 99.8% of the African–
American population, and 99.92% of the Hispanic
population would be excluded as the donor of the
semen.
Investigator Board interviewed Reed after
learning that the preliminary DNA results could not
exclude him as a suspect. Investigator Board
withheld the results of the DNA testing and
Mirandized Reed. Reed waived his rights and gave a
written statement. In it, he stated, “I don't know
Stacey Stites, never seen her other than what was on
the news. The only thing that I do know is what was
said on the news is that she was murdered.”
Pursuant to a search warrant, blood was drawn from
Reed and turned over to the DPS lab.
Lockhoff subjected the sample to a more
discriminating type of DNA testing, Restriction [710]
Fragment Length Polymorphism (RFLP). Once
again, Reed could not be excluded as the donor of the
semen when four individual sites were tested.
Regarding the statistical frequency in which Reed's
RFLP profile would appear in the population,
Lockhoff calculated that it would be one in 590
million for the Caucasian population, one in 330
million for the African-American population, and one
 103a

in 3 billion for the Hispanic population. Combining

the results of the PCR and RFLP testing, the
frequency in which Reed's genetic profile would be
present in the world's population is one in 5.5 billion
for the Caucasian, African-American, and Hispanic
populations.
Reed's father and three brothers were then
excluded as possible donors through DQ–Alpha and
D1S80 DNA testing.
Because the testing conducted by DPS could
not exclude Reed, DPS sought the assistance of
LabCorp, an independent lab, to conduct additional
testing. Meghan Clement, the director for the
forensic-identity-testing department, received DNA
samples from Stacey and Reed and conducted PCR
testing, which included testing on genetic sites of the
DNA strand that are distinct from those considered
during DQ–Alpha and D1S80 testing. Looking at ten
different sites on the male fraction of the substance
on the vaginal swab taken from Stacey, Clement
could not exclude Reed as the contributor of the
semen; in fact, the sample matched Reed's genetic
profile. The probability of randomly selecting an
unrelated individual with this profile is
approximately one in 449,000,000 for the Caucasian
population, one in 46,800,000 for the African–
American population, and one in greater than
5,500,000,000 for the Hispanic population.
Combining some of the additional PCR testing with
the previous DQ–Alpha and D1S80 results, only one
person in the world's population would have this
particular genetic profile. Testing on the male portion
of the substance from the rectal swab revealed DQ–
Alpha alleles of 1.2 and 3 and, therefore, matched
 104a

Reed's DQ–Alpha profile. Recalling her prior

experience working on sexual-assault cases for ten-
and-a-half years, Clement noted that she never found
intact sperm more than twenty-four hours after
commission of a vaginal-sexual assault and that
sperm breaks down faster in the rectal area than in
the vaginal vault.
Reed was charged with capital murder in May
1997. At trial, to raise reasonable doubt during the
guilt phase, Reed mounted a two-prong challenge to
the State's evidence. First, Reed pointed to the
possibility that another person, particularly Fennell
and Lawhon, had committed the offense. And as a
secondary theory, Reed focused on showing that he
had a romantic relationship with Stacey and that his
semen was therefore present in Stacey's body
because of consensual intercourse.
To prove a romantic relationship between
Stacey and Reed, Reed's defense team called Iris
Lindley, a longtime friend of Reed's parents, to
testify. In early 1996, Lindley was sitting on the
porch of Reed's house visiting with Reed's mother. A
young woman with brown hair pulled in front of the
house in a gray truck, walked up to the porch, and
asked if Reed was home. When Reed's mother told
the young woman that Reed was not home, the young
woman asked Reed's mother to tell Reed that
“Stephanie” had come by. Clarifying the name,
Lindley said that it was either “Stacey or Stephanie.”
When Lindley was shown a picture of Stacey, she
stated that Stacey looked like the young woman who
had come by Reed's house that day. While Lindley
first testified that she formulated the impression that
 105a

Stacey and Reed were dating, she conceded on [711]

cross-examination that she had no such knowledge.
To establish that Lawhon knew Stacey, Reed's
attorneys called Jose Coronado, who had worked
with Lawhon at Walmart and with Stacey in the
produce department at the H.E.B., to testify.
Coronado stated that he once saw Stacey and
Lawhon talking in the Walmart parking lot and that
later, when he and Stacey worked together at H.E.B.,
Stacey told him that she and Lawhon had dated and
that Lawhon was “sort of a player.” On cross-
examination, the State asked Coronado whether it
would surprise him to know that Lawhon was dating
a woman named Christie Macy and that she would
frequently meet him in the Walmart parking lot.
Coronado stated that he did not know about Macy or
that she met Lawhon in the parking lot.
Supporting Coronado's testimony, Cynthia
Jones, a friend of Lawhon's, testified that she and her
boyfriend were with Lawhon and Stacey at a party in
Elgin and then again at Smithville Jamboree in 1995.
Jones said that Lawhon introduced Stacey as “his
girl” for the first time at the Jamboree.
Scott Parnell furthered the defense's strategy
to implicate Lawhon when he testified that Lawhon
confessed to killing Stacey. While drinking at a bar
one night in 1996, Lawhon told Parnell that he
strangled Stacey with either his or her belt and that
Stacey had pretty blue eyes before she closed them.
On cross-examination, the prosecution questioned
Parnell about a signed written statement that
Parnell made at the Sheriff's Department in which
Parnell stated that Brian Haynes made the
confession. Explaining the evident discrepancy,
 106a

Parnell testified that both Lawhon and Haynes had

confessed. Additionally, when the prosecution
inquired about the motive behind his testimony,
Parnell admitted that he knew about the $50,000
reward offered by H.E.B.
To rebut the evidence supporting any
relationship between Stacey and Lawhon, the State
called two of Stacey's best friends from high school to
testify. Cathy Vacek went to the Jamboree with
Stacey in 1995 and stated that she would have
known if Stacey dated Lawhon and had gone with
him to the Jamboree. Sherry Lastovica went to the
Jamboree with Stacey on Friday night in 1995 and
stated that after Stacey attended the Jamboree for a
second time the following day, Stacey told Lastovica
that she had met Fennell. Neither woman knew
anything about a relationship between Stacey and
Lawhon.
The State also offered testimony from
Lawhon's wife. She specifically remembered the
night that her husband murdered Arldt. On that
night, when Lawhon failed to come home, she locked
the screen door, which did not have a key, so that she
would know when he got home. When he finally
returned home, the two then argued about it. She
recalled that the argument ensued because it was
unusual for him to come home so late. When asked
whether anything like that happened on April 23rd,
Lawhon's wife remembered the day because it was
her son's first birthday, and she stated that nothing
unusual happened.
Turning their attention to Fennell, Reed's
defense team devoted a considerable amount of time
highlighting the shortcomings of the investigation
 107a

into Fennell by officials. Specifically, they were able

to call the jury's attention to the fact that the lion's
share of information provided to officials about
Stacey's whereabouts before she died, Stacey's
routine and habits, and the items in Fennell's truck
was given by Fennell himself. They also emphasized
that officials did not search Fennell's home, thereby
precluding the possibility of [712] ever discovering
evidence that may have implicated Fennell.
Tami Renee Hannath, Stacey's high-school
friend, cast Fennell as controlling and possessive.
She testified that when she and Stacey were on the
phone, making arrangements for Stacey to come to
Smithville for a visit, Fennell came home. Stacey
then told him about the upcoming plans while
Hannath remained on the phone and then the phone
was disconnected.
Finally, Reed's defense team presented its own
DNA expert, Dr. Elizabeth Ann Johnson from
Technical Associates Incorporated. Dr. Johnson's
DQ–Alpha and D1S80 DNA test results on the
vaginal swabs taken by Blakley and the fluid found
in Stacey's underwear were consistent with those
obtained by DPS. And although Dr. Johnson
attempted to test the rectal swab, she determined
that there was not enough DNA to conduct accurate
testing. Dr. Johnson's DQ–Alpha testing on the
saliva from breast swabs taken by Blakley yielded
the same results as the previous testing conducted by
DPS. On the swab taken from Stacey's left breast,
testing indicated 1.2, 4.1, and 3 alleles, and on the
swab taken from Stacey right breast, testing
indicated 1.2, 3, and 4.1 alleles. Dr. Johnson
conceded that in all of the sixteen sites tested in this
 108a

case, Reed could not be excluded as the donor of the

semen and saliva found on Stacey's body. Further,
Dr. Johnson did not dispute the statistics that
Lockhoff devised as a result of her testing.
To quell the prosecution's theory that Stacey
had been anally sodomized before her death, Dr.
Johnson was questioned about vaginal drainage. Dr.
Johnson testified that vaginal drainage, which allows
semen to be deposited in surrounding areas, may
occur when a body is moved around after intercourse.
She opined that when there has been an ejaculation
in the rectal area, there should be a lot of sperm
because a full ejaculate contains hundreds of millions
of sperm. And regarding the decomposition of sperm,
Dr. Johnson stated that she was unaware of any
difference in the rate of decomposition of sperm in
the vagina versus that in the rectum. In her
experience, she obtained better sperm samples from
rectal swabs. On cross-examination, Dr. Johnson
admitted that a male can deposit a small amount of
sperm without ejaculating when there is penetration
and that trauma to the anal area should be
considered when determining whether there has
been penetration.
After weighing the evidence, a jury found Reed
guilty of capital murder. And following a separate
punishment hearing, Reed was sentenced to death.
II. Post-trial Background
A. Reed's Direct Appeal
Reed appealed, claiming, among other things,
that the evidence was factually insufficient to
 109a

support his conviction for capital murder.1 We

rejected Reed's sufficiency claim, holding, “Given the
strength of the DNA evidence connecting [Reed] to
the sexual assault on [Stacey] and the forensic
evidence indicating that the person who sexually
assaulted [Stacey] was the person who killed her, a
reasonable jury could find that [Reed] is guilty of the
offense of capital murder.”2 And concluding that
Reed's other claims were without [713] merit, we
affirmed Reed's conviction and sentence.3

B. Reed's First and Second State

Applications for a Writ of Habeas Corpus
Reed also sought habeas relief under Article
11.071, Texas Code of Criminal Procedure. Regarding
Reed's original application, based on the trial judge's
recommended findings and conclusions and our own
review of the record, we denied relief in a written
order.4 While Reed's original application was
pending, Reed filed a supplemental claim for relief,
which we later construed as a subsequent application
under Section 5, Article 11.071, Texas Code of
Criminal Procedure.

1 Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6,

2000) (not designated for publication), cert. denied, Reed v.
Texas, 534 U.S. 955 (2001).
2 Id. at *9.
3 Id. at *22.
4 Ex parte Reed, No. WR-50,961-01 (Tex. Crim. App. Feb.
13, 2002) (not designated for publication).
 110a

Relying on Brady v. Maryland,5 Reed claimed

in the subsequent application that the prosecution
failed to give his defense attorneys a letter from
Young dated May 13, 1998. The letter was addressed
to the lead prosecutor, Lisa Tanner, an Assistant
Attorney General whom Bastrop District Attorney
Charles Penick had called in to prosecute the case. In
the letter, Young acknowledged a request for DNA
analysis on the beer cans recovered from the scene
where Stacey's body was found and a request for a
comparison of the results to samples of Stacey's DNA
as well as samples from other individuals that had
been submitted throughout the course of the
investigation. Young subjected the samples to DQ–
Alpha DNA testing and documented the results.
Testing on one of the cans, identified by officials as
item number 24, revealed the presence of DQ–Alpha
alleles 1.3 and 4. A possible 1.2 DQ–Alpha allele was
potentially masked but was not specifically detected.
Testing on the other can yielded no DQ–Alpha
results. Based on the results, Young concluded that
Reed was excluded as a possible source of the DNA.
Young, however, could not exclude Stacey if the
source of DNA compromised a mixture of DNA but
could exclude her as a donor if the DNA was provided
by single source. Officer Hall and Investigator
Selmala could not be excluded as possible sources of
the DNA. According to Reed, the State failed to make
Young's letter available to him until the State
attached it as an exhibit to its response to the
allegations raised in his original habeas application.

5 373 U.S. 83 (1963).

 111a

The trial judge held a live evidentiary hearing

on this claim and, after evaluating its merits,
recommended that we deny relief. Testimony from
the hearing supplied additional insight into the DNA
testing conducted on the beer cans.
On May 13th, when Young documented the
results from the DQ–Alpha DNA testing on the beer
cans, the guilt phase of the trial was underway and
the defense was in the process of presenting its case-
in-chief. On that particular day, the court was in
recess because Dr. Johnson was the defense's next
witness and she was not available to testify until the
following day. Initially, the prosecution did not
request that testing be conducted on the beer cans,
having concluded that they were a non-issue.
According to Ranger Wardlow, the cans, which had
some pine needles on top of them and compressed
needles below, appeared to have been there longer
than Stacey's body. Conversely, proceeding under the
theory that everything should be tested, Reed's
defense team ordered testing [714] on the cans. As a
result, when Dr. Johnson went to the DPS lab and
met with Young on April 15th, Young swabbed the
lips and sides of the cans for saliva in Dr. Johnson's
presence and split the swabs with Dr. Johnson. Dr.
Johnson later used her portion of the swabs to
conduct DQ–Alpha and Polymarker testing. On May
5th, Reed's defense attorneys requested that blood
samples from the other suspects, including Officer
Hall and Investigator Selmala, that had been
collected by DPS, be made available to Dr. Johnson.
The trial judge granted this request. Alerted to the
defense's decision to test the beer cans, Tanner
 112a

requested that Young test the portions of the swabs

that he had retained. When Dr. Johnson testified at
trial, she did not testify about the results that she
obtained from the DNA testing conducted on the beer
cans.
Answering Reed's allegation that she failed to
disclose Young's report to his defense team at the
evidentiary hearing, Tanner began by testifying that
she learned of Young's test results on May 13th
through Missy Wolfe, an investigator with the
Attorney General's Office, who was assigned to work
on Reed's case with Tanner. Because the trial court
was in recess that day, Wolfe called Tanner at home
and told her about the results. Young faxed the
report on the 14th when the court was back in
session, and Wolfe received the report and gave it to
Tanner. Tanner stated that, upon receipt of the
report, it would have been stamped and given to
Reed's defense attorneys. Prior to trial, the
prosecution instituted a Bates stamping system; each
page of each document subject to disclosure was
assigned a sequential number. Four copies of each
document were then made. One copy would be placed
in the district clerk's file, one would be retained by
the prosecution in its discovery file, and the
remaining two would be given to Reed's defense
attorneys. Young's May 13th letter, which consisted
of two pages, was numbered 3,183 and 3,184. Under
the hectic conditions of the trial, the standard
procedure began to break down and the prosecution
dispensed with providing copies of discovery
materials to the district clerk. Tanner stated that she
believed she gave a copy of Young's letter to Reed's
defense team because, when she reviewed her file,
she found three stamped copies of the letter and the
 113a

district clerk's file did not contain a copy. Based on

the usual policy and practice of disclosure in this
case, Tanner was convinced that the fourth copy had
been given to Reed's defense team. Wolfe testified
similarly. However, neither Tanner nor Wolfe had
any independent recollection of specifically providing
the report to Reed's attorneys.
Tanner also testified that she considered
Young's results to be exculpatory when she first
received them. Therefore, on May 13th, she directed
Wolfe to have Young forward the DNA samples to
LabCorp via FedEx for additional, more
discriminating D1S80 and Polymarker DNA testing.
However, Tanner cancelled the testing the next day
when she reviewed Dr. Johnson's report and notes
during the lunch break before Dr. Johnson was set to
testify. Dr. Johnson's DQ–Alpha testing yielded the
same results as Young's. But through Polymarker
testing, Dr. Johnson excluded Stacey, Officer Hall,
and Investigator Selmala as contributors. Still firm
in her belief that she had given Young's report to the
defense, Tanner stated that the exculpatory value of
Young's report was negated when she learned about
Dr. Johnson's exclusion of Stacey, Officer Hall, and
Investigator Selmala. At that point, Tanner believed
that the issue with the beer cans “had been put to
bed” and directed Wolfe to cancel the additional
testing with LabCorp.
[715] Calvin Garvie and Lydia Clay-Jackson,
Reed's trial attorneys, testified that they had not
seen Young's May 13th report until Reed's habeas
counsel gave them a copy. Both attorneys also
recalled that the prosecution gave each of them their
own copies of all discovery materials before and
 114a

during the trial. Garvie, who took the responsibility

of dealing with the DNA evidence in the case, stated
that he remembered someone was excluded and was
certain that, if Dr. Johnson's results had included
any of the other suspects, he would have had Dr.
Johnson testify to that fact. Garvie further stated
that, had he received Young's report, it could have
affected the jury's verdict because when there is
evidence from the State suggesting innocence and
showing the presence of other individuals at the
scene, it is “huge.” Clay-Jackson agreed, stating it
would have helped advance their theory of the case
by giving an explanation of how Fennell could have
traveled to Giddings from Bastrop and back to
Giddings. When asked whether he would have used
Young's report, Garvie stated that he would have
used it to consult with Dr. Johnson. Garvie further
stated that he would hesitate in using the report
because of Dr. Johnson's exclusion. Clay-Jackson
expressed a similar sentiment, stating that Young's
report would not have given her a reason to “exhale”
during the trial if she would have known that Dr.
Johnson's testing refuted Young's results.
Regarding Officer Hall, Carla Hall testified,
verifying her husband's alibi. She stated that, in the
early morning hours on April 23rd, her husband was
at home with her. She remembered that night
because her two-month-old daughter woke up with a
“bloodcurdling scream” at 3:30 a.m. While her
husband held their baby, she went to fix a bottle. Her
husband then left for work at 5:35 a.m. because he
was scheduled to be on duty at 5:45. Officer Hall
testified consistently with his wife. And when asked
if he had any involvement with Stacey's death,
Officer Hall stated that he did not.
 115a

Recommending that Reed's Brady claim be

denied, the trial judge adopted the State's proposed
findings of fact and conclusions of law. In doing so,
the trial judge entered findings of fact consistent
with the testimony given at the hearing and found
Tanner, Garvie, Clay–Jackson, and Officer Hall and
his wife, Carla, to be credible. The trial judge also
adopted the following conclusions of law:
• The State did not intentionally suppress the
May 13, 1998 DPS lab report in violation of
Brady v. Maryland.
• The State provided the May 13, 1998 DPS lab
report to Applicant's attorneys.
• There remains a legitimate fact issue as to
whether Applicant's trial counsel actually
received a copy of the May 13, 1998 DPS lab
report during Applicant's trial.
• If the May 13, 1998 DPS lab report was
disclosed and used by the defense effectively,
it would not have made a difference between
conviction and acquittal, since the defense's
own expert has already reached the same
conclusion as that reflected in the report.
• Because the DNA results reflected in the
May 13, 1998 DPS lab report were previously
refuted by Applicant's own expert, they are
not material because they do not create a
probability sufficient to undermine the
confidence in the outcome of Applicant's trial.
Considering Reed's Brady claim as raised in a
subsequent application for a writ of habeas corpus,
we held that Reed failed to show that his claim meets
 116a

any of the exceptions outlined in [716] Article 11.071,

Texas Code of Criminal Procedure.6 As a result, we
dismissed Reed's subsequent application as an abuse
of the writ.7
C. Reed's Federal Petition for a Writ of
Habeas Corpus
Reed then sought federal habeas corpus relief
under Title 28, United States Code, Section 2254.
Although the magistrate judge permitted discovery
and ordered several depositions, the United States
District Court for the Western District of Texas
determined that several of Reed's claims were
unexhausted because Reed had failed to present
them to this Court before pursuing federal habeas
corpus relief.8 As a result, the District Court entered
a stay in March 2004 allowing Reed to exhaust his
state-court remedies.9
D. Reed's Second Subsequent State
Application for a Writ of Habeas Corpus
In March 2005, Reed filed a second subsequent
state application for a writ of habeas corpus under
Article 11.071, Texas Code of Criminal Procedure. In
it, Reed claimed, among other things, that he is
actually innocent under Herrera v. Collins10 and that

6 Ex parte Reed, No. WR-50,961-02 (Tex. Crim. App. Feb.

13, 2002) (not designated for publication).
7 Id.
8 Reed v. Dretke, No. A-02-CA-142-LY (W.D. Tex., Mar.
22, 2004).
9 Id.
10 506 U.S. 390 (1993).
 117a

the State suppressed exculpatory evidence in

violation of Brady. Contending that the State
violated Brady, Reed maintained that the State
suppressed the following evidence:
• DNA evidence linking the beer cans found
near Stacey's body to Officer Hall.
• Eyewitness information from Martha
Barnett that she had seen Stacey and
Fennell the morning that Stacey was
murdered.
• Reports from family members Jennifer and
Brenda Prater that Stacey had been seen
early in the morning on April 23rd with a
man who was not Reed and who had a
dark complexion.
• Longstanding information that Fennell
and other Giddings officers engaged in a
pattern of brutality against suspects.
Reed also claimed that the State suppressed
information from Mary Blackwell, formerly known as
Mary Best. Blackwell is a former classmate of
Fennell's at CAPCO, and she states that she
overheard a conversation in which Fennell stated
that he would strangle his girlfriend with a belt if he
ever caught her cheating on him. While this claim
was originally filed under seal, it was made a matter
of public record at the evidentiary hearing when
Blackwell testified in open court.
In October 2005, we determined that Reed's
Brady claims concerning Barnett and Blackwell
satisfied the requirements of Article 11.071, Section
5(a) and remanded the claims to the trial judge for a
 118a

live evidentiary hearing and ordered the trial judge

to enter findings of fact and conclusions of law. With
respect to Reed's remaining grounds for relief, we
held that Reed failed to satisfy Section 5(a) and
dismissed those claims as an abuse of the writ.
We now turn to the details of Reed's Brady
claims concerning Barnett and Blackwell.
1. Barnett
[717] To support his claim concerning the non-
disclosure of eyewitness information from Barnett,
Reed attached an affidavit from Barnett.
On the morning of April 23rd, 1996 at
approximately 5:00 to 5:30 AM I was on my
way to work. I pulled into the parking lot of
the Old Frontier. At that time I saw Stacy [sic]
Stites and a man I recognized as Jimmie [sic]
Fennell standing in front of a red pickup on
the side walk. I got out of my vehicle and
approached the soda machine. I got my coke,
turned and got into my vehicle. There was a 4
door car leaving the parking lot as I turned in.
I presumed it was the newspaper deliveries'
[sic] people because the newspaper rack was
full. I recognized Stacy [sic] because I always
went thru her line at H.E.B. I worked at a
restaurant in front of H.E.B. I found out about
2 weeks later that the man with her that
morning in front of the Frontier was Jimmie
[sic] Fennell because his picture was run in
the Giddings Times and News and that's when
I recognized him.
Reed also attached affidavits from Barnett's
attorney, Steven Keng. Keng was formerly the Lee
 119a

County Attorney, a county adjacent to Bastrop

County. Keng stated that Barnett told him about
seeing Stacey and Fennell at Old Frontier in Paige,
Texas, a town between Giddings and Bastrop, on the
morning of April 23rd. Barnett relayed this
information to Keng sometime in late 1997 or early
1998 when Keng was representing her in Lee
County. Keng felt that the information was
important because of newspaper reports stating that
Fennell was excluded as a suspect because officials
could not explain how he committed the crime. When
Keng was at the Bastrop County Courthouse a few
weeks later, he approached District Attorney Penick
and relayed Barnett's disclosure without specifically
identifying Barnett by name, referring to her only as
a client. Keng was under the impression that Reed
had not yet been tried and approached District
Attorney Penick with the information, knowing that
a prosecutor has a duty to explore all of the evidence
and to see that justice is done. Keng was surprised by
Penick's reaction to the disclosure.
He laughed and told me that he had all of
the evidence that he needed, and he did not
want to hear anymore about the case. He
did not indicate that the case was over, and
a conviction secured, (which I would have
expected if the case had already been
tried), only that he did not need anymore
evidence.
When Keng returned to his office, he told his
wife, who assisted him at the office, of Penick's
response.
During 2001 and 2002, Smithville newspapers
reported that the Bastrop District Attorney's Office
 120a

had engaged in prosecutorial misconduct in Reed's

case. Believing that the allegations of misconduct
were defamatory, Penick filed a civil suit against the
papers.11 When pressed during a deposition taken as
part of the civil suit in August 2001, Penick stated
that he remembered Keng approaching him at the
Bastrop County Law Enforcement Center and stating
that he had a client who knew something about
Reed's case. Penick recalled telling Keng that he had
all of the information that he needed. Penick believed
that Keng was making a joke because Keng never
stated anything about having exculpatory evidence.
[718] In October 2003, Penick, who was by
then retired, elaborated on his conversation with
Keng during a deposition ordered by the federal
magistrate judge. Penick was certain that the
conversation took place after Reed was convicted and
sentenced. He asserted that Keng approached him in
January or October of 2002 while Keng was at the
Law Enforcement Center during one of the
arraignments on a murder case involving Amanda
Sykes. Penick reached this conclusion when he called
up the District Attorney's Office following the
deposition in the civil case and requested that they
pull the dates involving Sykes's case. Penick stated
that his response to Keng was likely prompted by the
news articles; he was “ill-tempered” at the time and
perceived Keng's statement as a “jab” at him. Penick
further claimed that in the twenty years he has
known Keng, he has never known when to take him

11 See Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d

425, 432-33 (Tex. App.-Austin 2007, pet. denied).
 121a

seriously and stated that Keng “didn't seem to sound

serious about this.”
In response to Penick's claim that Keng's
disclosure took place long after Reed's trial, Keng, in
his affidavit, steadfastly maintained that the
conversation took place prior to Reed's trial. Keng's
awareness that Reed had yet to be tried prompted
him to believe that the information would be
important to the State. Keng reviewed his
appointment book to identify the dates that he would
have been in the Bastrop County representing
clients. His review showed that he had been in
Bastrop between March 1998 and April 1998. Keng
also recalled that the conversation did not take place
during any of the pretrial proceedings held on the
Sykes case. Keng was dealing with an assistant
district attorney on that case and was informed that
Penick was on vacation during at least one of the
pretrial settings. Keng claimed that Penick did not
participate in the trial of Sykes.
2. Blackwell
In support of his Brady claim concerning the
State's failure to disclose Fennell's statement in
which he threatened to strangle Stacey if he ever
caught her cheating on him, Reed attached an
affidavit from Blackwell. In the affidavit, Blackwell
states that she is a licensed Texas peace officer and
that she attended a training class at CAPCO with
Fennell in 1995. During the class, Fennell sat behind
her with some of his friends. Continuing, Blackwell
stated:
I also knew who Jimmy's girlfriend was. One
day after training class, I met a woman in the
 122a

parking lot who asked for Jimmy. I told her he

was inside and volunteered to get him. As I
went in, Jimmy met me coming out of the
building. Jimmy looked at us and said, “What
are you telling my girlfriend? Keep away from
her.” Earlier that day, Jimmy and others in
our class were learning self defense tactics.
Jimmy's friend had broken my hand during
one of the exercises. After Jimmy passed me in
the parking lot I saw him go up to his
girlfriend and could hear him telling her in a
commanding voice what to do.
The men from Bastrop that were taking the
CAPCO class would talk about Jimmy's
girlfriend. They said she was nice, but that
Jimmy talked down to her in an abusive
way—in a demanding kind of way.
Towards the end of the CAPCO course,
instructors had passed out photographs from
real suicides and murders. Each student was
supposed to say whether their group's
photograph depicted a suicide or murder. The
class had to break because one of the students
had a relative who had committed suicide and
that relative's suicide was depicted in one of
the photographs.
[719] During the break, I overheard Jimmy
talking to this other guy in class. He said, “If I
ever find my girlfriend cheating on me, I'll
strangle her.” I told him that if he did that he
would be caught because he would leave
fingerprints. Jimmy then said, “That just goes
to show you'll never know shit; I won't leave
any prints because I'll use a belt.”
 123a

I didn't think much about Jimmy's comments

until I heard Captain John Vasquez discussing
the murder of Jimmy's girlfriend. Captain
Vasquez was in my office and seemed to know
a lot about the murder scene. He had worked
as an investigator in connection with the
murder. He told me the details from the
murder scene and seemed to indicate that
Jimmy's girlfriend knew her attacker. I then
told him the details of what Jimmy said.
John Vasquez, who had retired from the
Austin Police Department before Reed's trial after
twenty-six years of service, documented Blackwell's
recollection of Fennell's threat in an affidavit:
After I retired, I became a private investigator
and investigated several homicides. In 1998, I
was appointed to assist the defense team of
Rodney Reed. I was not the original
investigator on the case and was only able to
do a limited amount of work shortly before his
trial began. I continued my involvement with
his case until his conviction and sentence was
[sic] decided. Sometime after Mr. Reed had
been sentenced to death, I happened to speak
to Travis County Deputy Constable Mary
Best. We talked about the Stacey Stites case
and she shared with me that she had been in a
training class with Stites' fiancé, Jimmy
Fennell. Mary recalled that they were talking
about domestic problems. Fennell made the
remark that if he ever caught Stacey cheating
on him he would choke her to death. He then
laughed and said he was joking.
 124a

After I learned this information, I checked the

police training academy and confirmed that
Mary Best and Jimmy Fennell had indeed
been in a joint training session. I told the
Bastrop District Attorney's Office about the
information that I learned. I believe that I
spoke directly to District Attorney Charles
Penick. I never heard anything more about it
and I do not know what the District Attorney
did with the information I gave them.
3. Live Evidentiary Hearing
At the direction of this Court, limited to the
Brady issues concerning Barnett and Blackwell, the
trial judge held a live evidentiary hearing in March
2006.
a. Barnett
Barnett expanded on the facts surrounding her
sighting of Stacey and Fennell at the Old Frontier
store on the morning of April 23, 1996. At that time,
Barnett was working at Papa's Catfish restaurant in
Bastrop, located in front of the Bastrop H.E.B. She
knew Stacey because she shopped at the H.E.B., and
Stacey had checked her out.
Barnett lived in Paige and took Highway 290
to Highway 21 into Bastrop. Her commute took
approximately twenty-five to thirty minutes.
Although Barnett normally worked the 2:00 p.m. to
10:00 p.m. shift or 4:00 p.m. to 11:00 p.m. shift at the
restaurant, on April 23rd, she was scheduled to cover
a coworker's shift at 6:00 a.m. Barnett woke up at
4:00 a.m., got her children ready for the day, and
dropped them off at her mother's house, located
approximately thirty to forty-five seconds from her
 125a

house. She stayed at her mother's house for twenty to

twenty-five minutes. Before heading to Bastrop,
Barnett drove east on Highway 290 to the [720] Old
Frontier store. When she arrived at the store at
approximately 4:45 a.m., she observed a man and a
woman standing in front of the store making hand
gestures that indicated to her that the man and
woman were involved in some type of conflict. The
man and the woman then got into a red pickup when
Barnett opened her car door. After getting a soda
from the machine, Barnett saw the head of the
woman sitting in the passenger's seat of the red truck
go down and back up. When she got back into her
car, Barnett heard elevated, muffled voices from the
truck, even though the windows of the truck and her
car were closed at the time. Barnett left the store
while the truck was still parked in the lot and began
her commute to work. Barnett did not recall whether
she saw the red truck on her way into Bastrop, and
she estimated that she arrived at work early at 5:30
a.m.
Believing that she saw Stacey on the day she
was murdered, Barnett reported what she saw to her
parents in January 1997. Her mother, Marjorie
Cowan, advised her to talk to Keng. Cowan stated
that Barnett had told her that she knew Stacey from
the H.E.B. and that “the young man that was with
her was very—looked like he was angry.” Cowan
could not remember if Barnett identified the young
man by name. However, she recalled urging her
daughter to talk to Keng because she knew Keng's
father and had used Keng as a lawyer several times.
On direct-examination by Reed's habeas
counsel, Barnett testified that a year later, in
 126a

January 1998, she met with Keng when he was

representing her on a charge of driving while
intoxicated (DWI) and told him about what she saw.
Barnett stated that she realized sometime after the
23rd that the man with Stacey was Fennell when she
saw his photograph in the paper.
On direct-examination, Barnett also revealed
that she had prior misdemeanor convictions for theft
by check.
On cross-examination, Barnett acknowledged
that news of Stacey's murder was a big deal and that
she failed to report what she saw to law-enforcement
officials, the Bastrop District Attorney, or the
Attorney General's Office, even though she was
aware that authorities would have been interested in
having the information. Confronted with her prior
sworn statement, in which she claimed that she saw
Stacey and Fennell at the Old Frontier store between
5:00 and 5:30 a.m. on the 23rd, Barnett was
questioned about whether anyone had told her that
Fennell's truck had been located at the high school at
5:23 a.m., making it impossible for Barnett to have
seen Fennell and Stacey with the red truck twenty to
twenty-five minutes away at the store in Paige
between 5:00 and 5:30 a.m. In response, Barnett
stated that no one had talked to her about the time
frame. The State continued to question Barnett about
her time line:
[State] Q. So it would have taken you only 45
minutes to get four kids ready, get them out of the
house, get them dressed, get them to somebody
else's house, visit with them for 20 to 30 minutes
and then get to that store; is that your testimony?
 127a

A. I [sic] mother doesn't live very far from where I

lived at the time.
Q. And then you told us that it would have taken
you about 30 minutes to get in to work from there;
right?
A. About, yes.
Q. Okay. So you certainly wouldn't have gotten to
work at like 5 o'clock or 5:15 would you, because
that would have been just crazy; right?
A. I don't recall that it was that early.
Q. In fact, it was closer to six, wasn't it?
[721] A. No, I wasn't that late.
When the State asked Barnett if she had
omitted any information in her affidavit about Stacey
and Fennell gesturing as if they were involved in a
conflict, Barnett admitted that she had.
Also, raising an issue left unaddressed on
direct examination, the State questioned Barnett
about her arrest for DWI, which had occurred before
Barnett told Keng that she had seen Stacey on the
morning she was murdered. Fennell and Officer Hall
arrested Barnett for DWI, and Fennell cited her with
failing to maintain a proper lane on November 5,
1997. Fennell also executed a prior arrest warrant in
a separate case in which Barnett was charged with
theft. Barnett consulted Keng on the DWI case and
told him about seeing Stacey and Fennell two months
later. Barnett stated that she had not been happy
about the arrest and acknowledged that she had been
aware that Fennell would have testified against her
if the case had gone to trial.
 128a

On redirect, Barnett admitted that she was

drunk when arrested and testified that her
intoxication at the time of her arrest affected her
ability to recognize Fennell. She further stated that
she did not execute the affidavit to retaliate against
Fennell; she made the connection between Fennell
and Stacey when she saw Fennell's picture and name
in the paper.
Testing whether Barnett had actually
recognized Fennell from a photograph in the
Giddings newspaper, as she had claimed in her
affidavit, the State presented Barnett with copies of
the weekly paper issued from April 25, 1996, to May
28, 1998, and asked her to identify which paper
included a picture of Fennell. After looking through
the papers, Barnett conceded that Fennell's picture
did not appear in any of the papers. Barnett then
stated that she must have seen it in another paper.
To further undermine Barnett's testimony
about recognizing Fennell from a photograph in the
paper, the State called Emanuel Miranda, an
investigator with the Postconviction Litigation
Division at the Office of the Attorney General, to
testify. Preparing for the hearing, Miranda was
tasked with finding any articles in the Bastrop,
Austin, and Giddings newspapers from April 23,
1996, the date Stacey was murdered and her body
was found, to May 30, 1998, the day after Reed was
sentenced, that were related to Stacey's murder or
Reed's trial. Miranda was ordered to look for a
picture of Fennell that appeared with any of the
articles. Miranda's research revealed that Fennell's
picture did not accompany any of the articles relating
 129a

to Stacey's murder or Reed's trial from April 23,

1996, to May 30, 1998.
Reed's trial attorneys, Garvie and Clay–
Jackson, both testified that they had not been aware
of Barnett's sighting of Fennell and Stacey on the
morning of April 23rd before or during trial. Both
attorneys agreed that, had such information been
disclosed, it would have significantly altered their
trial strategy. Because Fennell was the only source to
verify his whereabouts on April 23rd, Garvie states
that he would have used Barnett's sighting to
establish reasonable doubt. First, Fennell's testimony
that he had been at home sleeping when Stacey left
for work would have been impeached, exposing
Fennell as a liar. Next, Garvie believed that the
defense could have challenged the State's time line
by showing that Stacey was alive between 4:30 and
5:30 a.m. on the morning of the 23rd. Also, in
Garvie's opinion, with Fennell in Paige, the distance
that Fennell would have had to travel to get back to
Giddings would not have been as great as that
theorized during the trial. Clay-Jackson[722]
testified that, if she had known Fennell had been in
Paige, she would have investigated Fennell's history
for violence and his associates more closely to
determine if someone else drove Fennell from the
Bastrop High School to Giddings. Garvie testified
that he would have taken another look into Dr.
Bayardo's time of death, and Clay-Jackson stated
that she would have had their medical experts
explore the forensic evidence for anything that could
place Fennell at the scene of the offense. With
Barnett's sighting, Garvie believed that Fennell's
exclusion as a suspect through DNA would not have
made a difference because Fennell had no motive to
 130a

rape Stacey if he was just going to kill her. Clay–

Jackson stated that, had she known of the
information in Barnett's affidavit, she would have
encouraged Reed to testify in his defense. However,
on cross-examination, Clay–Jackson stated that she
previously admitted that she did not want Reed to
testify because he had several prior sexual-assault
offenses that the State could have used against him.
Parroting his prior statements, Keng testified
about the facts surrounding Barnett's disclosure, his
subsequent attempt to inform Penick of the
disclosure before Reed's trial, and Penick's reaction.
He recalled that Barnett had come to see him about
the DWI and a family-law matter and that he did not
end up representing her on the DWI. Regarding his
attempt to inform Penick of Barnett's disclosure,
Keng added that he told Penick that he could give
him his client's name and telephone number. He
chose to tell Penick about Barnett's disclosure in
person instead of calling him because the information
was important, he knew Penick, and Penick was in
charge of the prosecution. Keng stated that he failed
to convey the information to anyone else in the
District Attorney's Office or any law-enforcement
officials, even after he was rebuffed by Penick. Keng
testified that Barnett never gave him the impression
that she had told anyone else about the sighting and
that, if he thought that Barnett was lying, he would
not have given the information to Penick.
With the timing of Keng's disclosure to Penick
as a hotly contested issue, both parties attempted to
nail down exactly when Keng spoke to Penick.
Confident that he spoke to Penick before Reed's trial,
Keng stated that he informed Penick about Barnett's
 131a

sighting in February or March of 1998. On cross-

examination, the State challenged whether Keng
spoke to Penick before Reed's trial by noting that
Keng had previously stated in an affidavit that,
according to his schedule, he had been at the Bastrop
County Courthouse representing other clients in
March and April 1998, immediately before, and
during, Reed's trial. When cross-examining Keng
about his prior statement in which he stated that he
recognized the importance of the information
provided by Barnett because newspapers reported
that Fennell had been eliminated as a suspect, the
State presented Keng with the first news articles
from the Austin and Giddings papers to report this
particular information from mid-May 1998. The State
then asked Keng whether it is possible that he did
not disclose Barnett's sighting until after Reed's trial.
In response, Keng stated that he believes that his
statement suggests that memory is cumulative in
people and that when he wrote the affidavit, the
information about Fennell having been excluded as a
suspect was published. He added that Penick never
told him that Reed's trial was over and that he
believed if it had been over, Penick would have told
him that.
Keng was also questioned about his
participation in the film “State versus Reed.” While a
graduate student at the University [723] of Texas,
Ryan Polomski made the film for his thesis project.
He interviewed Keng for the film and videotaped the
interview. Polomski maintained that the video
camera was visible in the room when he conducted
his interview with Keng. Polomski testified that he
was uncertain whether he informed Keng that the
thesis project would possibly become a documentary
 132a

film that would be shown to the public. And Polomski

did not inform Keng when the film was later shown
to the public. When Keng was questioned by the
State about his appearance in the documentary film,
Keng stated that he was unfamiliar with the film and
that he did not know who interviewed him or where
the camera was located.
Penick testified that when he receives
exculpatory information, he turns it over to the
defense. During Reed's trial, he was approached by a
woman named Elizabeth Keehner, and she told him
that she did not believe that Reed was guilty of
murdering Stacey. Viewing Keehner's statement as
exculpatory information, Penick stated that he told
Tanner or someone in law enforcement about the
statement and that someone working for the State
took a statement from her. The statement was then
turned over to the defense. Wolfe corroborated
Penick's testimony, stating that she interviewed
Keehner and obtained an exculpatory statement that
was later disclosed to the State. She also stated that
Penick never expressed “an attitude that we've got
everything we need.”
Regarding Barnett, Penick testified that he did
not receive any information involving Barnett before
or during Reed's trial. In fact, Penick stated that he
did not learn that the client Keng referred to was
Barnett until he read Keng's affidavit. Penick
maintained that, had he received information about
Barnett's sighting, he would have investigated it and
shared the information with the defense if the
investigation revealed that it was exculpatory.
Penick recalled that Keng relayed the information
from Barnett in passing as he and Keng were leaving
 133a

the courtroom after a docket call approximately four

years after Reed's trial. On cross-examination,
Penick was asked what he thought of Keng's
allegation that he had disclosed the information
about Barnett's sighting to him in 1998. Penick said
that Keng was “telling a big lie.” Penick then
acknowledged that, in supporting Keng's reelection
in 1996, he wrote a letter stating that he knew and
worked with Keng for fifteen years and that, in his
opinion, Keng is “a very competent, honest,
professional prosecutor....” Explaining his current
opinion of Keng, Penick stated that Keng was honest
as a prosecutor but changed when he became a
defense attorney, and his dealings with him as a
defense attorney were not good.
Reed's habeas counsel asked Penick why he
used the present tense during the deposition in the
civil case when recalling that he told Keng that he
“has” all of the evidence he needed against Reed. In
response, Penick explained that the question took
him by surprise and that he failed to clear up the fact
that Keng passed along the information involving
Barnett four years after Reed's trial. During that
deposition, he realized that Keng made the disclosure
during the Sykes case. Knowing this, Penick later
pulled the District Attorney's file on the Sykes case
and determined that Keng would have been at the
courthouse between January and October 2002.
Finally, Penick stated that the civil suit dealt
with other allegations and that the alleged
suppression of Barnett's sighting did not provide a
basis for the suit.
 134a

b. Blackwell
When testifying, Blackwell reiterated and
added to the statements made in her [724] affidavit.
Blackwell stated that class was seated alphabetically
in the academy and that she was seated near Angela
Allred, Larry Franklin, and Fennell. When Blackwell
was rewriting her notes in the classroom during a
break, Fennell was standing up in the back of the
room talking with the cadet who sat to his right.
Blackwell overheard Fennell tell the cadet seated to
his right that he would strangle his girlfriend if he
discovered that she was cheating on him. Blackwell,
who was seated at the table in front of Fennell, then
looked over her shoulder and said, “Well, if you do
that they'll find your fingerprints all over her throat.”
Fennell responded to Blackwell, telling her that he
would use a belt. Blackwell found Fennell “to be
extremely offensive when it came to his attitude
towards wom[e]n in particular, not only women in
police work but wom[e]n in general.” She also “found
him to be conceited, arrogant, and that he regarded
himself as a police officer having power over others in
a way that police officers should not have power.”
Recalling the incident in the parking lot in which
Fennell directed her to stop talking to Stacey,
Blackwell testified that when Fennell got into the
truck with Stacey, she could tell from his facial
expressions that he was yelling at her.
When Stacey was murdered, Blackwell was
working as a Deputy Constable for Rocky Madrono in
Travis County. The Bastrop County Sheriff's
Department called Madrono's office and requested
help with the escort for Stacey's funeral. This was the
first time that Blackwell had learned about Stacey's
 135a

murder. Blackwell received permission to use one of

Madrono's vehicles, and another deputy, who had
been a cadet with Blackwell at CAPCO, accompanied
Blackwell to the funeral. Blackwell attended the
funeral and saw Fennell exiting the church. As
Fennell followed Stacey's casket, Fennell collapsed on
one knee and needed assistance getting up. Blackwell
returned to work and told Madrono that Fennell
appeared to be putting on an act. She then informed
him about the comments made by Fennell in class,
even though, according to her testimony, she was
unaware that the community and people attending
the funeral were questioning what had happened to
Stacey. During her testimony, Blackwell also recalled
that she had previously told her best friend about
what Fennell had said the night that Fennell made
the statement.
According to Blackwell, at some point in 1998
when the weather was warm, she was introduced to
Vasquez, the investigator appointed to assist Reed's
trial attorneys. From his introduction, Blackwell got
the impression that Vasquez was actively involved in
investigating Stacey's murder and that he was
working on behalf of the individual accused of
murdering Stacey. When Vasquez told Blackwell that
Stacey had been strangled with a belt, “bells and
sirens went off” in Blackwell's head, and Blackwell
immediately told Vasquez about what Fennell had
said in class. Presented with the CAPCO cadet-class
roster and class photograph, Blackwell identified the
cadet who sat on Fennell's right as Christopher
Dezarn. Vacillating, Blackwell later stated she could
not remember who Fennell had made the statement
to and that the proposed seating chart would not
refresh her recollection.
 136a

On cross-examination, Blackwell conceded that

she failed to notify authorities investigating Stacey's
murder of Fennell's statement even though she
believed that the statement was significant in light of
her status as a peace officer, her professional
training and experience, as well as her personal
experience with Fennell.
Vasquez testified that he was visiting with
Madrono a few weeks after Reed's [725] trial,
following the conclusion of his official investigative
duties. He was discussing Reed's case with Madrono
when Blackwell approached him and told him about
Fennell's statement. Vasquez then drove to CAPCO
and confirmed that Blackwell and Fennell had been
at the academy together. Vasquez documented his
conversation with Blackwell in a memo. Contrary to
the statement made in his affidavit about passing the
information along to Penick, at the hearing, Vasquez
stated that he gave the memo to Forrest Sanderson,
a chief assistant district attorney in Bastrop County
and a member of the trial team in Reed's case, a
week or so after he drafted the memo. Vasquez
testified that he believed that he had given the
information to Penick, but when he saw Sanderson
sitting in the courtroom, he remembered that he had
in fact given the information to Sanderson. Vasquez
was comfortable disclosing the information to the
District Attorney's Office because, he had known
Penick and Sanderson for eight or nine years,
believed that it was important to pass the
information along to them, and was confident that
they would do something with it. Vasquez did not call
Garvie or Clay–Jackson. When asked if he gave the
information to the previous investigator for the
defense, Duane Olney, Vasquez stated that he
 137a

believed that he had done so when he bumped into

him on the street several months after he had given
the information to Sanderson. Vasquez stated that he
intended to give the information to Reed's appellate
attorneys. Vasquez, however, failed to reach out to
Reed's attorneys. Vasquez finally spoke to attorneys
representing Reed after they initiated contact with
him in 2003 or 2004.
Sanderson testified that Vasquez did not give
him the information at issue and that, if Vasquez had
given him such information, he certainly would
remember it. Sanderson also expressed his opinion
about how Penick would deal with exculpatory
information relating to Reed's case. Sanderson stated
that Penick “would have been on it like white on
rice.” Penick stated that Vasquez never handed him
any document pertaining to the Reed case after
Reed's trial.
Contradicting Blackwell's testimony, Dezarn
testified that Fennell never told him that he would
strangle his girlfriend with a belt if he caught her
cheating on him.
Larry Franklin, another one of Blackwell's and
Fennell's prior classmates at CAPCO, testified that
he and Blackwell maintained a friendship after
graduation and that the two would call one another.
Sometime after Stacey's murder, Blackwell called
Franklin and asked him if he heard about the
murder. Together, Blackwell and Franklin
questioned whether Fennell had murdered Stacey.
The two had other conversations on this topic, and
during one of these conversations, Blackwell told
Franklin about Fennell's statement. Although
Franklin had sat to the left of Fennell in class,
 138a

Franklin did not hear Fennell make this statement

and learned about it only through his conversation
with Blackwell. Though Franklin stated that, as a
peace officer, he felt that there was an ethical
obligation to report such information, he admitted
that he failed to do so.
Missy Wolfe was assigned to investigate the
validity of Blackwell's contentions for the State. She
began by getting the class roster from CAPCO, which
indicated that Fennell and Blackwell's class had
twenty-nine members. Wolfe and another
investigator contacted all the individuals in the class,
including Fennell and Blackwell. They obtained
written or tape-recorded statements from everyone
except Fennell and Blackwell. Wolfe testified that
none of twenty-seven people in the class corroborated
[726] Blackwell's contentions regarding Fennell.
Clay-Jackson stated that if she had found out
about Fennell's statement within time for filing a
motion for a new trial, she would have moved for a
new trial on that basis.
4. Trial Judge's Findings of Fact,
Conclusions of Law, and
Recommendation
At the close of the evidentiary hearing, the
trial judge, who succeeded the judge who presided
over Reed's trial, requested that the parties submit
proposed findings of fact and conclusions of law.
Adopting the State's proposed findings of fact and
conclusions of law, which we will explore in greater
detail below, the trial judge recommended that we
deny relief.
 139a

III. Issues for Resolution

When this case was returned to us, we noted,
after conducting a careful review of the record, that a
few of the trial judge's fact findings were either
unsupported by the record or appeared, in some
fashion, to be misleading. Because of this and the
sharply conflicting testimony offered at the
evidentiary hearing, we filed and set this case for
submission to decide whether Reed is entitled to
relief under Brady. To facilitate our resolution of
Reed's claims on the record before us, we directed the
parties to brief the following issues:
• Assuming, arguendo, that the court has
entered a finding of fact or conclusion of law
that has multiple sentences or phrases and
that a portion of the finding or conclusion is
supported by the record, while another portion
is not, to what extent does this Court owe
deference to the trial court on such a finding or
conclusion? May the Court disregard the
finding or conclusion in its entirety?
• Assuming, arguendo, that numerous findings
and conclusions, or parts thereof, are not
supported by the record, how should this affect
the level of deference to the findings and
conclusions as a whole?
We also ordered the parties to address whether
Reed's gateway-actual-innocence claim satisfied the
requirements under Article 11.071, Section 5(a)(2).
 140a

IV. Analysis
A. Reed's Brady Claims that Satisfied Article
11.071, Section 5(a)(1)
1. The Standard
To protect a criminal defendant's right to a fair
trial, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution
requires the prosecution to disclose exculpatory and
impeachment evidence to the defense that is material
to either guilt or punishment.12 This rule of law
originated in 1963 in Brady v. Maryland and has
been clarified and further refined in its progeny.
Applying the rule in 1995, the Supreme Court, in
Kyles v. Whitley, held that the rule encompasses
evidence unknown to the prosecution but known to
law-enforcement officials and others working on their
behalf.13
Under its present incarnation, to succeed in
showing a Brady violation, an individual must show
that (1) the evidence is favorable to the accused
because it is exculpatory or impeaching; (2) the
evidence was suppressed by the government [727] or
persons acting on the government's behalf, either
inadvertently or willfully; and (3) the suppression of
the evidence resulted in prejudice (i.e., materiality).14
Evidence is material to guilt or punishment “only if

12 Strickler v. Greene, 527 U.S. 263, 280 (1999).

13514 U.S. 419, 438 (1995); see also Thomas v. State, 841
S.W.2d 399, 402-04 (1992) (tracing history and developments of
Brady rule).
14 Strickler, 527 U.S. at 281–82, 119 S.Ct. 1936.
 141a

there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of
the proceeding would have been different.”15 “A
‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.”16
For over forty years, our writ jurisprudence
has consistently recognized that this Court is
the ultimate factfinder in habeas corpus
proceedings.17 The trial judge on habeas is the
“‘original factfinder.’”18 Summarizing the role
of the trial judge, we have explained that the
judge is the collector of the evidence, the
organizer of the materials, the decision-maker
as to what live testimony may be necessary,
the factfinder who resolves disputed fact
issues, the judge who applies the law to the
facts, enters specific findings of fact and
conclusions of law, and may make a specific
recommendation to grant or deny relief.19
Uniquely situated to observe the demeanor of
witnesses first-hand, the trial judge is in the best
position to assess the credibility of witnesses.20

15 United States v. Bagley, 473 U.S. 667, 682 (1985).

16 Id.
17 Ex parte Young, 418 S.W.2d 824, 829 (Tex. Crim. App.
1967); Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App.
1989); Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim.
App. 2007) (per curiam).
18 Ex parte Van Alstyne, 239 S.W.3d at 817 (quoting Ex
parte Simpson, 136 S.W.3d 660, 669 (Tex. Crim. App. 2004)).
19 Ex parte Simpson, 136 S.W.3d at 668.
20 Ex parte Van Alstyne, 239 S.W.3d at 817.
 142a

Therefore, in most circumstances, we will defer to

and accept a trial judge's findings of fact and
conclusions of law when they are supported by the
record.21 When our independent review of the record
reveals that the trial judge's findings and conclusions
are not supported by the record, we may exercise our
authority to make contrary or alternative findings
and conclusions.22
In answering the first two issues that we
ordered the parties to brief, we conclude that it is
appropriate to remain faithful to our precedent.
Thus, we will afford no deference to findings and
conclusions that are not supported by the record and
will ordinarily defer to those that are. So where a
finding or conclusion contains multiple sentences or
phrases, we will pay deference to the sentences and
phrases that are grounded in the record and reject or
refuse to adopt those that are not. When our
independent review of the record reveals findings and
conclusions that are unsupported by the record, we
will, understandably, become skeptical as to the
reliability of the findings and conclusions as a whole.
In such cases, we will proceed cautiously with a view
toward exercising our own judgment. And when we
deem it necessary, we will enter alternative or
contrary findings and conclusions that the record
supports. Furthermore, [728] when we determine

21 Id.
22 Ex parte Adams, 768 S.W.2d at 288 (citing Ex parte
Davila, 530 S.W.2d 543, 544 (Tex. Crim. App. 1975); Ex parte
Bagley, 509 S.W.2d 332, 335 (Tex. Crim. App. 1974); Ex parte
Williams, 486 S.W.2d 566, 568 (Tex. Crim. App. 1972)). See e.g.,
Ex parte White, 160 S.W.3d 46, 51-55 (Tex. Crim. App. 2004).
 143a

that the trial judge's findings and conclusions that

are supported by the record require clarification or
supplementation, we may exercise our judgment and
make findings and conclusions that the record
supports and that are necessary to our independent
review and ultimate disposition. However, where a
given finding or conclusion is immaterial to the issue
or is irrelevant to our disposition, we may decline to
enter an alternative or contrary finding or
conclusion.
As recognized by our decisions, this standard
of review accounts for the unparalleled position of the
habeas judge to directly assess a witness's demeanor.
When listening to testimony, the habeas judge is
tuned in to how something is being said as much as
to what is being said. The judge is acutely aware of a
witness's tone of voice or inflection, facial
expressions, mannerisms, and body language. There
is no doubt that this type of assessment, the essence
of which a cold record rarely captures, is a
determinative factor in a trial judge's credibility
assessment and factfindings.

Next, we conclude that when numerous, but

not all, findings and conclusions are not supported by
the record, the determination of the level of deference
to be accorded to the findings and conclusions as a
whole is to be made on a case-by-case basis. It is
impossible to establish any type of litmus test for
determining when and under what circumstances the
level of overall deference may be affected by
numerous unsupported findings and conclusions.
Because no two cases are alike, the level of deference
accorded to the findings and conclusions as a whole
 144a

where numerous findings are not supported by the

record will depend on a thorough review and analysis
of the specific facts and legal issues involved in a
given case. The case may arise where the nature and
number of unsupported findings and conclusions may
render the findings and conclusions wholly unreliable
and beyond repair. Under such circumstances, we
may elect to take it upon ourselves to conduct all of
the factfinding and to issue a ruling explaining our
application of the law to the facts. However, we note
that it will be under only the rarest and most
extraordinary of circumstances that we will refuse to
accord any deference whatsoever to the findings and
conclusions as a whole.
In this case, in adopting the State's proposed
findings of fact and conclusions of the law, the trial
judge concluded that Reed was not entitled to relief
under Brady because he failed to establish that (1)
the State suppressed evidence and (2) the evidence
was material to guilt. We agree with the trial judge's
legal conclusion that Reed has not demonstrated that
the State suppressed evidence and therefore find it
unnecessary to render a decision regarding
materiality. So in reviewing the trial judge's
factfindings, we will confine our discussion of the
factfindings to those that are relevant to our
determination that the State did not withhold any
favorable information.
Our independent review of the trial judge's
remaining findings of fact (i.e., those irrelevant to our
resolution) demonstrates that they are largely
supported by the record. A select few of these
findings, however, are inconsistent with the record or
are somewhat misleading. For example, with respect
 145a

to Barnett's habeas testimony, the trial judge found

that when Barnett was confronted with the fact that
Fennell's picture did not appear in any of the articles
relating to Stacey's murder from April 24, 1996,
through May 30, 1998, “Barnett conceded that she
knew Jimmy Fennell from ‘something completely
independent of the Giddings newspaper,’ i.e., her
DWI arrest.” This finding unfairly [729] portrays
Barnett's testimony. Even though Barnett admitted
that she knew Fennell from her DWI arrest, she was
adamant that she recognized Fennell as the man she
saw with Stacey at the Old Frontier store from a
photograph in the newspaper. While the trial judge
was entitled to find, based on her credibility
determination, that Barnett recognized Fennell
solely from her DWI arrest, especially given Barnett's
mother's inability to specifically confirm Barnett's
identification of Fennell, the trial judge was not
justified in finding as a matter of fact that Barnett
conceded this point. We attribute this inaccuracy
(and other like findings) to the fact that the State
generated the proposed findings and they are
therefore wholly representative of the State's
interpretation of the evidence. Mindful of the role of
an advocate, the trial judge as a neutral arbiter
should have more carefully scrutinized the State's
proposed findings to ensure that they accurately
reflect the evidence in the record before adopting
them verbatim. Regrettably, the trial judge's decision
to adopt the State's proposed findings and
conclusions verbatim has unnecessarily complicated
our independent review of the record. Nevertheless,
in this case, we conclude that the few instances in
which the findings are inconsistent or misleading do
not justify a decision to totally disregard the findings
 146a

that are supported by the record and are germane to

our resolution of Reed's Brady claims.

2. Discussion
Relevant to Reed's allegation that the State
suppressed information concerning Barnett's sighting
of Stacey and Fennell, the trial judge found:
Stephen Keng testified that, at some point
after speaking with Barnett, he told Bastrop
County District Attorney, Charles Penick that
he had a client who claimed to have seen
[Stacey] with Fennell on the morning that she
disappeared. According to Keng, this
conversation took place sometime in February
or March of 1998, on the second floor of the
Bastrop County Courthouse, before Reed's
trial began. Keng testified that, in response,
Penick laughed and told him ‘that he had all
[t]he evidence he needed, and he just didn't
want to hear about it.’
Charles Penick testified that he recalled
having a conversation with Keng, during
which Keng told him that he had a client that
knew something about the Reed case. Penick
recalled that this conversation with Keng took
place about four years after the trial in the law
enforcement center during a docket call.
Penick stated that he thought Keng was
joking and ‘didn't take him seriously.’ Penick
testified that he told Keng that he had enough
evidence against Reed and ‘didn't need to hear
that....’ Penick testified that Keng did not
approach him with information regarding
 147a

Martha Barnett at any point prior to, or

during Reed's trial.
In his April 16, 2002 affidavit, Keng stated
that he believed the information Barnett had
shared with him ‘was important because the
newspaper reports indicated that Mr. Fennell
had been excluded as a suspect because law
enforcement could not explain how he
committed the crime.’ Keng stated that
information regarding Fennell's elimination as
a suspect came out in the newspaper before he
spoke with Penick about Barnett. During
cross-examination, Keng was confronted with
the fact that articles reporting that Fennell
had been eliminated as a suspect came out in
May 1998, several months after he claimed to
have spoken with Penick. Reed's trial
concluded on May 29, 1998.
[730] Stephen Keng testified that he did not
participate in the making of a documentary
movie in the instance [sic] case. Keng testified,
‘News to me.... I don't know who interviewed
me or where they had a camera.’
Ryan Polomski testified that he produced a
documentary film about the instant case and
Stephen Keng was interviewed on camera for
that film and that parts of that interview were
featured in the film.
Reed has not proven that the Bastrop County
District Attorney's Office was in possession of
the information regarding Barnett prior to or
during trial.
 148a

Clearly implied by the trial judge's finding

that the Bastrop District Attorney's Office was not in
possession of information regarding Barnett before or
during trial is the determination that Keng failed to
disclose that Barnett had information relating to
Reed's case until sometime after Reed was convicted
and sentenced. And what necessarily flows from this
is the trial judge's implicit determination that Keng's
testimony about the timing of the disclosure to
Penick's memory is not credible. The trial judge's
credibility determination is supported by the record,
and we therefore choose to adhere to her findings.
However, we find it necessary to clarify and
supplement the findings that pertain to Keng's
credibility.
First, the finding relating to Keng's recognition
of the importance of Barnett's information suggests
that it is unlikely that Keng truly realized the
significance of Barnett's sighting until sometime in
May 1998, at the earliest, when the newspapers first
began reporting that Fennell had been excluded as a
suspect. This determination is reasonable regardless
of Keng's explanation that he wrote the affidavit
years after the events took place, including when the
newspapers began reporting Fennell's exclusion as a
suspect, and that the information therefore became
part of his collective memory about the case. Because
the impetus behind Keng's disclosure to Penick is
directly tied to the timing of his disclosure, anything
that serves to undermine his credibility about the
impetus also undermines his credibility about the
timing. Further, when Keng was given the
opportunity to offer a reason, independent of
newspaper articles, for recognizing the significance of
Barnett's sighting when he claimed that he did, Keng
 149a

failed to offer any alternative explanation.

Accordingly, the trial judge was justified in finding
Keng's recollection about the timing of the disclosure
to Penick to be unconvincing.
Next, the trial judge's findings about Keng's
appearance in the documentary film “State versus
Reed” suggests that Keng testified untruthfully when
he denied that he was interviewed for the
documentary film. Our reading of the testimony
indicates it is unlikely that Keng realized he was
participating in a documentary film that would be
released to the public. Polomski testified that he
recalled telling Keng that he was a graduate student
at the University of Texas and that he was working
on his thesis project for a Master of Fine Arts in Film
and Video Production. Polomski was unable to
specifically recall whether he referred to the film as a
documentary or a thesis project and stated that he
did not believe that they talked about any showings,
distributions, or screenings. However, the record does
support the broader, implicit finding that Keng's
testimony about being interviewed for the film was
not credible. Even if Keng was unaware that
Polomski's film was a documentary, the trial judge,
after observing Keng's demeanor, was free to
disbelieve Keng's denial about being interviewed for
a film devoted to Reed's case. And even [731] though
this subject matter was unrelated to the disclosure of
Barnett's sighting, the trial judge was permitted to
take Keng's veracity on this issue into account when
assessing his credibility on the timing of the
disclosure.
The trial judge also expressly found Penick to
be credible. Because the trial judge was positioned to
 150a

witness Penick's demeanor first-hand, we conclude

that the trial judge's credibility determination and
resultant factfindings are supported by the record.
Reed argues that we should find that Keng is
more credible than Penick. Keng, according to Reed,
had no involvement in Reed's case and has nothing to
gain from the outcome of this case; he has placed his
credibility and reputation on the line by stepping
forward. Penick, on the other hand, should not be
found credible because, when he testified at the
habeas hearing, he had a financial interest in the
case, his memory has proven to be selective, and he
previously endorsed Keng's character for honesty.
Pointing to Penick's civil lawsuit, Reed argues
that, if Penick was found to have suppressed
evidence in this case, the impact on Penick's case,
which was unresolved at the time of the hearing,
would be devastating. Reed claims that, if his case
were reversed due to Penick's failure to disclose
Brady evidence, a jury in the civil case would be
unlikely to award Penick damages, regardless of
whether the particular evidence suppressed was the
subject of Penick's lawsuit.
Regarding Penick's inconsistent testimony
about the disclosure, Reed points to Penick's
evidentiary-hearing testimony addressing the first
statements he made about the disclosure in 2003
during a deposition in the civil lawsuit. Referring to
the transcript from the civil-suit deposition at the
hearing, Reed's habeas attorneys questioned Penick
about his prior statements on cross-examination:
Q. Line 18: “‘Did you have any conversation with
Mr. Keng before the Reed trial between the time
 151a

Mr. Reed was indicted and the time it went to

trial about a client of Mr. Keng's who said that
she had seen Stacey Stites and Jimmy Fennell
together on the morning of Ms. Stites' murder?
And your answer was ‘no.’”
A. That's correct.
Q. All right. Question: “‘You don't remember it or
it didn't happen?’” And your answer is: “‘I don't
remember it happening, I don't think it
happened.’”
Question: “‘Okay. And so you didn't tell him that
you had all the evidence that you needed and you
didn't want to hear anything more about the
case?’” Answer: “‘I do kind of remembering [sic] in
passing making that statement to Steve.’”
Because Penick failed to correct this testimony
and only mentioned, for the first time, during a
subsequent deposition that the disclosure took place
four years after the trial, Reed argues that we should
credit his initial testimony, “not his carefully crafted
answers presented months later.”
Finally, Reed argues that Penick could not
reconcile accusing Keng of lying about the timing of
the disclosure with the letter he had written in
support of Keng's reelection in 1996.
This information was before the trial judge,
and she was free to resolve any tendency toward bias
and any contradictory statements made by Penick in
favor of finding Penick credible. After reviewing
newspaper articles and the petition filed in the civil
suit, Penick testified that the allegations involving
Barnett had nothing to do with the civil suit. Reed's
 152a

contentions about the potential impact of this case on

[732] Penick's civil suit is speculative, and the trial
judge was permitted, in hearing Penick's testimony
on the issue, to determine that his personal interests
in the civil suit did not improperly influence his
testimony.
The trial judge was also at liberty to believe
Penick's testimony explaining his failure to state that
Keng's disclosure took place after Reed's trial during
the civil-suit deposition and Penick's reason for
changing his personal opinion of Keng. Elaborating
on his failure to state that Keng's disclosure occurred
four years after Reed's trial when he was deposed in
the civil suit, Penick admitted that he failed to clear
up the matter during the deposition. He explained
that the initial questions regarding Keng's disclosure
caught him off guard and he did not remember the
conversation at first. The questions then prompted
him to remember the conversation with Keng, and
during the questioning, he thought about it and
remembered that it occurred when Sykes was being
prosecuted, four years after Reed's trial.
I knew what case it was. I went back to that
case and I found out what dates were that we
have been over here because I remembered
then, back in the first deposition, of the
conversation I had with Steve Keng and it was
over at the law enforcement center when he
was representing Amanda Sykes on a murder
case where she killed her husband.
Because Keng's first affidavit relating to the
disclosure was made in April 2002, Penick assumed
that, based on his review of the docket dates for the
 153a

Sykes case, Keng must have made the disclosure

between January and April 2002.
Finally, regarding the letter endorsing Keng's
reelection, Penick explained that Keng was a friend
of his and that, based on his opinion of Keng at the
time he wrote the letter, he was being truthful when
he said that Keng was an honest person. Penick
stated: “[A]t the time he was in prosecution, I felt
that way, but when he became a criminal defense
lawyer he changed, he changed an awful lot.” Penick
added that, had he known what he now knows about
Keng, he would not have written the letter.
Next, although we question whether Fennell's
statement to Blackwell falls within Brady's ambit
because it was not alleged to have been disclosed
until after Reed's trial and therefore may be more
properly characterized as newly discovered
evidence, we will nevertheless defer to the trial
23

judge's credibility determinations and factfindings

because our independent review of the record
establishes that they are supported by the record.
Concerning Vasquez's credibility, the trial judge
found the following:
During cross-examination, Vasquez was
confronted with the fact that he had sworn in
his January 2, 2005, affidavit that he ‘spoke

23 See generally Petition for Writ of Certiorari, District

Attorney’s Office for the Third Judicial District, et al. v. Osborne,
129 S. Ct. 488 (No. 08-6), granted Nov. 3, 2008 (arguing that the
Ninth Circuit Court of Appeals in 42 U.S.C. § 1983 civil rights
actions improperly “created a postconviction right of access to
evidence under the Due Process Clause by extending the
doctrine of Brady . . . and its progeny.”).
 154a

directly to District Attorney Charles Penick.’

Vasquez testified that he thought at the time
that he'd give[n] it to Penick but remembered
when he saw Sanderson sitting in the
courtroom that he had given the information
to him, and not to Penick.
Charles Penick testified that John Vasquez
never approached him with information
pertaining to Reed's case.
Forrest Sanderson testified that he did not
recall Vasquez ever approaching him [733]
with information about Reed's case. Sanderson
testified that he would have remember[ed] if
Vasquez had come to him with information
pertaining to Reed's case.
Given the inconsistencies in Vasquez's
testimony the Court finds him not to be
credible.
This Court finds the testimony of Sanderson,
Penick, and Wolfe to be credible.
This Court finds that the Bastrop County
District Attorney's Office did not possess any
evidence pertaining to Mary Best Blackwell
prior to or during trial.
This Court finds that John Vasquez did not
provide evidence pertaining to Mary Best
Blackwell to the Bastrop County District
Attorney's Office until after Reed's trial.
Based on the foregoing, we hold that the
record supports the trial judge's conclusion that the
State did not suppress favorable evidence during
 155a

trial in violation of Brady. Accordingly, Reed has not

proven that he is entitled to relief.

B. Reed's Schlup Claims Under Article

11.071, Section 5(a)(2)
Under our Legislature's codification of the
Supreme Court's Schlup v. Delo24 standard, we may
not consider the merits of or grant relief on a
subsequent application unless the application
contains sufficient specific facts establishing
that:
...
(2) by a preponderance of the evidence, but for
a violation of the United States Constitution
no rational juror could have found the
applicant guilty beyond a reasonable doubt.25
To obtain review of the merits of a
procedurally barred claim, an applicant must make a
threshold, prima facie showing of innocence by a
preponderance of the evidence.26 A Schlup claim of
innocence is not an independent constitutional claim;
it is “a gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional
claims considered on the merits.”27 Because Article

24 513 U.S. 298 (1995).

25 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(2)
(Vernon Supp. 2008).
26 Ex parte Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App.
2007).
27 Schlup, 513 U.S. at 315.
 156a

11.071, Section 5(a)(2) was enacted in response to the

Supreme Court's decision in Schlup,28 we conclude
that standards set forth for evaluating a gateway-
actual-innocence claim announced by the Supreme
Court should guide our consideration of such claims
under Section 5(a) (2). Therefore, to mount a credible
claim of innocence, an applicant “must support his
allegations of constitutional error with reliable
evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.”29
The applicant bears the burden of establishing that,
in light of the new evidence, “it is more likely than
not that no reasonable juror would have” rendered a
guilty verdict “beyond a reasonable doubt.”30 To
determine whether an applicant has satisfied the
burden, we must make a holistic evaluation of “‘all
the evidence,’ old and new, incriminating and
exculpatory, without regard to [734] whether it
would necessarily be admitted under ‘rules of
admissibility that would govern at trial.’”31 We must
then decide how reasonable jurors, who were
properly instructed, “would react to the overall,
newly supplemented record.”32 In doing so, we may

28 Ex parte Brooks, 219 S.W.3d at 399.

29 Id. at 324.
30 Id. at 327.
31 House v. Bell, 547 U.S. 518, 537-38 (2006) (quoting
Schlup, 513 U.S. at 327-28).
32 Id. at 538.
 157a

assess the credibility of the witnesses who testified at

the applicant's trial.33
In this case, we must determine whether Reed
has satisfied his gateway burden under subsection
(a)(2) so as to permit us to review his procedurally
barred Brady claims, ineffective-assistance-of-counsel
claims, and other constitutional claims. And in
deciding whether Reed has met his burden, we will
defer to the trial judge's findings and conclusions
when it is appropriate.
In support of his gateway-innocence claim,
Reed relies on numerous items of evidence not
presented at trial, some of which were offered in his
prior applications. While we seriously doubt that
some of the evidence Reed cites constitutes new
evidence for purposes of our inquiry,34 we will give
Reed the benefit of all doubt and consider all of the
evidence that was not presented at his trial, namely
the evidence presented in all three of Reed's
applications. We will leave it for another day to
decide exactly what new evidence, not presented at
trial, may be considered in the purview of Section
5(a)(2)'s threshold showing of innocence.35

33 Id. at 539.
34 See Jay Nelson, Note, Facing up to Wrongful
Convictions: Broadly Defining “New” Evidence at the Actual
Innocence Gateway, 59 Hastings L.J. 711, 718-20 (2008)
(surveying approaches adopted by federal circuit courts in
defining new evidence under Schlup standard).
35 Compare with Ex parte Brown, 205 S.W.3d 538, 545-46
(Tex. Crim. App. 2006) (discussing what constitutes new
evidence for purposes of a substantive claim of innocence under
Ex parte Elizondo ).
 158a

1. Reed's Initial Application

We start by examining the evidence presented
in Reed's initial application and the accompanying
findings of fact that are pertinent to the particular
items of evidence. We note that, reviewing this
evidence in its entirety, the trial judge found that
Reed failed to prove that he is actually innocent
under the more stringent standard of Herrera and Ex
parte Elizondo.36
a. Robbins' Statements
First, Reed submits two statements from
Robert and Wilma Robbins that were given to police
in March 1998. The Robbinses delivered the Austin
American-Statesman Monday through Saturday in
Bastrop. Their route included the Bastrop High
School. A month before Stacey's murder, the
Robbinses saw a gray/blue Ford Tempo parked in the
School parking lot a few days during the week
between 4:30 and 5:00 a.m. The car was not there on
the day of Stacey's murder, and they never saw it
parked at the School after Stacey was murdered.
Robert also stated that he saw a Chevrolet full-size
truck, which he believed was white, in the lot two or
three days during the week. He did not see the truck
the day of Stacey's murder and did not see it in the
lot again after Stacey's murder.
The trial judge found that Carol Stites's
testimony about Stacey rarely using the Tempo to
drive to work because of its unreliability was
credible. The trial judge [735] also determined that,

36 947 S.W.2d 202 (Tex. Crim. App. 1996).

 159a

because of Stacey's work schedule, she could not have

been at the Bastrop High School between 4:30 and
5:00 a.m. The trial judge found that, in April 1996, a
1988 Ford Tempo was registered to David Gonzalez,
who worked for the High School in April 1996. As a
result, the trial judge found no credible evidence that
Stacey was driving Carol's car to the High School the
month before her death.
Concerning the white truck, the trial judge
found that when Robert was cross-examined at trial,
he admitted that, when he was questioned two days
after Stacey's murder, he told investigators that the
truck was silver. The Bastrop Police Chief
investigated the information from Robert and
concluded that the truck belonged to a school
employee. Further, while Patty Timmons testified at
trial that she saw three men in a white truck parked
near Bluebonnet Road on April 23, 1996, between
6:30 and 7:00 a.m., she told investigators three weeks
after Stacey's murder that she saw the truck at 9:30
a.m. on April 22, 1996. As a result, the trial judge
found no credible evidence that Stacey was murdered
by three unknown men in a white truck.
b. Witnesses Affirming Relationship
Between Stacey and Reed
Reed also presented several affidavits from
witnesses claiming to know of an ongoing
relationship between Stacey and Reed.
Kay Westmorland stated that Stacey and Reed
came to her house three or four times between late
January 1995 and April 1996. She knew Stacey from
the H.E.B. and knew of Fennell because she saw him
pick up Stacey at work. Westmorland knew Reed
 160a

from the neighborhood. She heard that Fennell knew

Reed was seeing Stacey and that Fennell was jealous.
She claimed that she was “not surprised to see
[Fennell] drive by [her] house on several occasions in
the same truck that she had seen Stacey and [Reed]
in.”
Meller Marie Aldridge stated that, when she
was at a friend's house, Stacey came and picked up
Reed. Her friend identified Stacey as Reed's
girlfriend. Meller Marie Aldridge knew Stacey from
the H.E.B.
On June 13, 2000, Meller Marie Aldridge gave
a second affidavit to the State elaborating on her first
sworn statement. The young woman, whom she saw
pick up Reed, had driven a full-size truck, worked at
the customer-service center at H.E.B., and was “best
friends” with a Hispanic woman named Rose, who
worked at H.E.B. and lived in the “projects” in
Bastrop. The trial judge found that the only truck
Stacey drove belonged to Fennell and that it was not
a full-size truck. Further, according to the general
manager of the Bastrop H.E.B., Stacey did not work
at the customer-service center. That position
required special training, which Stacey never
received. The general manager also maintained that
Stacey did not regularly hang out with a Hispanic
woman named Rose and that she was not drawn
toward any particular coworker. The trial judge
found that there was no Hispanic woman named
Rose who worked at the H.E.B. or was Stacey's best
friend. The trial judge found that the evidence
presented by Meller Marie Aldridge concerning a
relationship between Stacey and Reed was
unpersuasive.
 161a

Shonta Reed stated that Stacey had come by

her house looking for Reed when he was not at home
and that Stacey returned to pick him up when he got
back home.
Elizabeth Keehner stated that she saw Reed,
whom she “knew quite well,” walking out of the
H.E.B. “holding hands with a very pretty white girl”
a few months [736] before Stacey's death. When she
saw Stacey's picture in the paper, she thought that
Stacey might have been the girl with Reed at the
H.E.B.: “The familiarity was there.”
The trial judge found that Keehner was a
bondswoman and a close friend of Reed's family. She
often bonded Reed out of jail. Before trial, Keehner
gave a more detailed statement to police. In addition
to mentioning her sighting of Stacey and Reed at
H.E.B., Keehner detailed a conversation she had with
Chris Hill's grandmother-in-law, Betty Wallace.
Wallace, who occasionally worked for Keehner, told
Keehner, in Chris Hill's presence, that everyone at
H.E.B. knew that Stacey and Reed were dating. Hill
also worked at H.E.B., and Keehner stated that Hill
responded in the affirmative when Wallace asked
whether it was common knowledge at H.E.B. about
Stacey and Reed dating. The State obtained a
statement from Hill in 2000. He denied any
knowledge of the conversation and stated that he did
not have any personal knowledge of a relationship
between Stacey and Reed. The trial judge found that
the State could have subjected Keehner to significant
impeachment if she had testified at Reed's trial.
Walter Reed, Reed's father, stated that Kelly
Bonguli, who had worked at the H.E.B., told him that
he knew where Stacey was the night she was killed.
 162a

Bonguli also told Walter that he and his family had

been “tailed” during Reed's trial. He then said that
he wanted to talk with someone before he said
anything about the case.
Considering these statements, the trial judge
found that they were not credible or persuasive. Reed
failed to submit an affidavit from Kelly Bonugli. The
State obtained an affidavit from Bonugli that
discredited Walter Reed's statements. Bonugli stated
that he “never told Walter Reed that I knew where
Stacey Stites was on the night she was killed. All I
ever told Walter was that Rodney Reed was a
crackhead who raped girls on the R.R. tracks. I have
no idea where Stacey Stites was when she died.”
In an affidavit submitted by Reed, Ron Moore
states that he had a conversation with Debra Pace
and Jane Campos about Stacey's murder in January
1999. According to Moore, Campos told him that
Reed did not kill Stacey and that she had overheard
a conversation between Fennell and his coworker,
Curtis Davis. Davis told Fennell “not to worry that ‘it
was all taken care of’” in response to Fennell's
complaint about Stacey's affair with Reed. Pace told
Reed's trial investigator, Olney, about the
conversation. Olney submitted an affidavit attesting
to his conversation with Pace.
The trial judge found that Moore's and Olney's
statements were not persuasive or credible. Reed
failed to provide the trial judge with affidavits from
Campos and Pace. In an affidavit obtained by the
State, Campos stated that she never told anyone that
Reed did not kill Stacey or that she overheard a
conversation between Fennell and Davis in which the
two discussed an affair between Stacey and Reed.
 163a

Pace also executed an affidavit at the State's request.

In it, she asserted that she never told Moore or Olney
about anything Campos said; when Moore and Olney
came to her house, she refused to talk to them. Pace
read Moore's and Olney's affidavits and stated that
the two are “bald face liars.” Campos said that Reed
did not do it when Pace was talking with Campos and
Moore about their personal opinions about the case.
Pace stated that Campos's tone was serious, but that
for all she knew it was only Campos's opinion.
Finally, Curtis Davis submitted an affidavit denying
that he ever had such a conversation with Fennell.
[737] Jon Chris Aldridge submitted an
affidavit stating that he saw Stacey and Reed
together during the three months before she was
murdered. Around April 1st, when Jon and Reed
were walking, Fennell stopped them and told Reed he
knew about him and Stacey. Fennell then told Reed
that he was going to “pay.”
Jon Aldridge gave the State a more detailed
affidavit on June 14, 2000. He stated that he was at
Shonta Reed's house when a large full-size pick-up
truck pulled up. When Reed introduced Jon to the
driver, he told Jon that her name was Stacey and
that they were dating. The three then rode around
and purchased crack cocaine. After Stacey and Reed
smoked the crack cocaine, Stacey dropped them off at
a local bar. Jon asserted that Fennell and another
law-enforcement official whom he did not know
stopped them in Bastrop. Fennell was wearing plain
clothes, and the other officer was wearing a uniform.
Jon stated that they were in a Bastrop County
Sheriff's Department vehicle with a star embossed on
the side. He stated that he knew Fennell because
 164a

Fennell had booked him into the Bastrop County

Jail.
The trial judge determined that Jon's
statements were neither persuasive nor credible.
Fennell, the trial judge found, was a Gidding's police
officer at the time—not a Bastrop Sheriff's Deputy.
Additionally, after reviewing Jon's booking sheets,
which the State submitted, the judge found that
Fennell never booked Jon into the jail. Regarding the
allegation of Stacey's crack cocaine use with Reed,
the trial judge found that the toxicology report from
Stacey's autopsy was negative for drugs and alcohol.
The drug screen conducted by H.E.B. before Stacey
was hired was also negative. Further, the trial judge
found:
Prior to trial, the State sent samples of
Stacey Stites' hair to National Medical
Services, Inc. in Pennsylvania. That
laboratory analyzed 32 centimeters of her
hair in order to determine whether cocaine
or its metabolites were present. As that
laboratory's report indicates, two different
analyses were negative for cocaine. Since
hair grows at an approximate rate of one
centimeter per month, the State was
prepared, through the use of these
analyses, to prove that Stacey Stites was
not a cocaine user for the last 32 months of
her life.
Finally, the trial judge found that many of
these affidavits were from Reed's family members.
Jon Aldridge, Shonta Reed, Meller Marie Aldridge,
and Ron Moore are Reed's cousins, and Walter Reed
is Reed's father. The trial judge also determined that,
 165a

at the time of the habeas proceedings, many of these

family members had criminal records. Jon Aldridge,
who is Meller Marie Aldridge's son, had a lengthy
arrest record. He had been convicted several times of
theft by check and had been convicted for failure to
identify himself as a fugitive from justice. Shonta
Reed had been convicted of theft four times and
convicted of assault once. Linda Westmorland had
been convicted of felony theft, and the State's motion
to revoke her probation on that cause was pending at
the time of the habeas proceedings. She also had
forgery charges pending in Dallas.
In light of his earlier findings, the trial judge
found that the evidence of a secret affair between
Stacey and Reed was unpersuasive. Moreover, the
trial judge determined that the evidence of Fennell's
awareness of a “secret affair” and vow to get revenge
was unpersuasive.
c. Statements from Allison and
Hawkins
Reed also submitted written statements taken
from Jason Allison and Neal Hawkins [738] while
they were in custody during the investigation into
Arldt's murder. Both Allison and Hawkins recounted
the murder. Hawkins stated that Lawhon confessed
to killing Stacey immediately after he killed Arldt.
Lawhon told Hawkins that he “did the girl in
Bastrop.”
Without judging Allison's and Hawkins's
credibility, the trial judge found no credible evidence
that Lawhon is guilty of murdering Stacey. The
judge, who had presided over Reed's trial, made this
determination after recalling the evidence at trial
 166a

and reviewing the habeas evidence. The habeas

evidence specifically included a written statement
from Macy, Lawhon's ex-girlfriend, who would meet
Lawhon in the Walmart parking lot, written
statements from Lawhon's parents asserting that
Lawhon was at home on the night Stacey was
murdered, and information showing that Lawhon
had been excluded as a contributor to the DNA on the
beer can (item number 24).
d. Fennell's Deceptive Polygraph
Results
Finally, Reed pointed to Fennell's two
polygraph results. The polygraphs were conducted
during the investigation into Stacey's death, and both
results indicated that Fennell was deceptive when he
was asked if he strangled, struck, or hit Stacey. At
trial, the results were offered by Reed's attorneys,
and the trial judge ruled that they were inadmissible.
On direct appeal, we affirmed the trial judge's
ruling.37
After exhaustively considering all of the trial
and habeas evidence, the trial judge determined that
there was no credible evidence that Fennell is guilty
of murdering Stacey.
2. Reed's First Subsequent Application
We now turn to the beer-can-DNA evidence
presented in Reed's second application. As previously
discussed at length above, Reed submitted Young's
DNA-test results on the beer can (item number 24)

37 Reed, No. AP-73,135, at *12–14.

 167a

found on the road near Stacey's body in his first

subsequent state habeas application. Young could not
exclude Stacey, Officer Hall, or Investigator Selmala
as DNA contributors. But Reed's trial expert, Dr.
Johnson, did exclude all three through Polymarker
testing.
At the end of 2000, when Reed's first and
second applications were before the trial judge, the
State ordered additional, more discriminating DNA
testing on the beer can. With intervening advances in
DNA testing, Young conducted Short Tandem Repeat
(STR) testing on the can and compared the results
with the genetic profiles for Stacey, Officer Hall, and
Investigator Selmala. STR testing is more
discriminating than the previous testing conducted
by both parties' trial experts. Young examined
thirteen STR loci. Based on his evaluation of the
results, Young was unable to exclude Hall from ten
loci. He was also unable to exclude Stacey and
Investigator Selmala from five loci. Young
documented these findings in a report on January 22,
2001.
Dr. Ranajit Chakraborty, whom Young
testified was “one of the country's most definitive
experts in the field of population genetics,” submitted
an affidavit concurring with Young's determination.
“Review of the electropherograms indicates that the
conclusions reached by the DPS laboratory are
accurate and they are scientifically valid.” Dr.
Ranajit Chakraborty noted, however, that Young's
results raised questions. He stated that Officer Hall
is excluded based on three loci and Stacey and
Investigator [739] Selmala are each excluded based
on eight loci. “[T]he exclusion of each of the three
 168a

persons (based on multiple loci) are consistent with

the inference that they are NOT part contributors of
DNA in the mixture sample (of item # 24).”
In a deposition, Reed's habeas expert, Dr.
Arthur Eisenberg, disagreed with two of Young's
conclusions. In his opinion, the data from Young's
testing did not support the finding that Stacey and
Investigator Selmala are included as contributors.
Officer Hall, however, cannot be excluded. Dr.
Eisenberg opined that DPS's protocol was correct but
stated that his results were obtained using an
alternative interpretation method. Explaining DPS's
method, Dr. Eisenberg maintained that DPS
protocols mandate a peak-height-minimum of 150
RFU units when making an allele or loci call
designation. Another value, a stochastic cutoff level,
is 50 RFU units. Dr. Eisenberg asserted:
to make an allele designation, it needs to be a
minimum of 150 RFU units to be used for
what we refer to as inclusionary purposes.
However, there is an area between 50 and 150
RFU where there are peaks that are clearly
visually detectable but are typically only used
for purposes of exclusion....
Using the lower threshold of 50 RFU units, so
that the three loci not previously identified by Young
were now visible, Dr. Eisenberg could not exclude
Officer Hall. Ninety-nine percent of the Caucasian,
African–American, and Hispanic populations would
have been excluded. But Dr. Eisenberg made clear
that he could not say whether Officer Hall put his
saliva on the beer can. He also stated that the
absence of an exclusion would have to be looked at in
conjunction with other evidence relating to Officer
 169a

Hall. As for Stacey and Investigator Selmala, Dr.

Eisenberg found no reason to include them as DNA
contributors. Because Dr. Eisenberg regarded Dr.
Chakraborty as a friend, he spoke with Dr.
Chakraborty and showed him the electropherograms
where the loci were called at 50 RFU. Dr.
Chakraborty, according to Dr. Eisenberg, changed his
opinion and agreed that only Officer Hall could not
be excluded. Dr. Eisenberg had the impression that
Dr. Chakraborty was not given the
electropherograms when he reviewed Young's
conclusions. Referring to Dr. Johnson's previous
exclusion of Officer Hall, Dr. Eisenberg stated that if
the Polymarker test was properly conducted, he
would have no problem relying on the results.
Considering the results of Young's 2001 DNA
analysis on the merits, the trial judge concluded that
Reed's free-standing-innocence claim did not entitle
him to relief. The trial judge found that the jury's
guilty verdict would not have differed if the report
had been admitted into evidence at trial. The trial
judge also determined that Reed failed to establish
by clear and convincing evidence that no reasonable
juror would have convicted him in light of the
report.38
3. Reed's Second Subsequent Application
a. Beer-Can-DNA Evidence
Reed again points to the beer-can-DNA
evidence in this application. He theorizes that Officer
Hall could have assisted Fennell with either

38 See Ex parte Elizondo, 947 S.W.2d at 208.

 170a

committing the murder or returning to Giddings from

Bastrop on the morning of the murder. Because
Officer Hall is six feet, one inch tall, Reed contends
that he cannot be excluded as the driver of Fennell's
truck.
[740] In a follow-up affidavit to his deposition
testimony, Dr. Eisenberg asserts that his subsequent
review of Dr. Johnson's Polymarker testing does not
change his opinion about the inability to exclude
Officer Hall based on the STR results. “The STR
systems are in general several times more sensitive
at detecting minute amounts of DNA, and the
visualization of the STR profiles on an
electropherogram is better at discerning mixtures as
compared with DQ–Alpha and Polymarker systems.”
b. Officer Davis
Reed further contends that Officer Curtis
Davis could have assisted Fennell with either
committing the murder or returning home. Reed
asserts that Officer Davis reported for the night shift
on the night before Stacey was murdered, but he
signed out an hour later, taking sick leave. He was
then absent from work for a few days after the
murder to comfort Fennell.
c. Barnett and Blackwell
Reed also relies on the information that
originated with Barnett and Blackwell, the
particulars of which we have fully discussed above.
In relation to Reed's Brady claims, the trial
judge made findings on Barnett and Blackwell's
credibility. The trial judge found that both were not
credible.
 171a

Regarding Barnett, the trial judge found that

she was not credible or persuasive for the following
reasons:
• Barnett failed to give a satisfactory
explanation about why she failed to report her
sighting of Stacey and Fennell on the morning of
April 23rd to police and why she did not report it
to anyone until she spoke with Keng, over a year
and a half after the murder. Barnett: (1) knew
Stacey's murder was huge news where she
worked; (2) agreed that it was common knowledge
that H.E.B. offered a $50,000 reward; and (3) was
aware that her sighting would have been
important to law-enforcement officers
investigating Stacey's murder.
• The timing of Barnett's disclosure, because of
her DWI arrest by Fennell shortly before her
disclosure to Keng, suggests an apparent bias and
motive underlying her testimony.
• Given Attorney General Investigator
Miranda's testimony and collection of local
newspaper articles about Stacey's murder,
Barnett's credibility is undermined by the fact
that she could not have identified Fennell from a
photograph in the newspaper because his photo
was never in the newspaper.
• Barnett's credibility is damaged because her
testimony about the time she saw Stacey and
Fennell was inconsistent with her sworn
statements made in her 2002 affidavit. Viewed in
conjunction with the State's argument that it
would have been impossible for Barnett to have
seen Stacey and Fennell at the store between 5:00
 172a

and 5:30 a.m., the time discrepancy of Barnett's

sighting at the hearing is significant.
• Barnett's testimony is incredible when
considered with the following facts developed at
trial: (1) Stacey was scheduled to be at the
Bastrop H.E.B. for work at 3:30 a.m.; (2) Stacey
was a prompt employee who was never late to
work; (3) Stacey was partially dressed in her
H.E.B. uniform when her body was discovered;
(4) Fennell's red truck, which Stacey drove to
work, was found at the Bastrop High School at
5:23 a.m. on the 23rd; (5) Stacey had already been
killed when Fennell's truck was found; (6) Carol
Stites woke Fennell up at 6:45 a.m. to tell him
that Stacey failed to arrive at work; and (7) Carol
had to give Fennell a set of [741] keys to her
Tempo so he could go look for Stacey.
The trial judge then concluded that Barnett
did not see Stacey and Fennell at the Old Frontier
store on the morning of April 23rd.
Finding Blackwell's testimony neither credible
nor persuasive, the trial judge entered the following
findings:
• Blackwell's testimony about Fennell feigning
grief at Stacey's funeral is undermined by the
testimony of Giddings Police Chief Nathan
Lapham. Lapham testified that Fennell “appeared
to be very upset, emotionally upset, he was crying,
I believe before and after the funeral.... He was
very distraught.”
• Blackwell's testimony is severely undermined
by Wolfe's testimony that none of the other cadets
in the CAPCO class could corroborate the
 173a

conversation that Blackwell said that she had had

with Fennell in which Fennell threatened to
strangle his girlfriend with a belt if he ever
caught her cheating on him. Further, none of the
cadets could corroborate Blackwell's claim that
Fennell acted abusively toward Stacey.
• Blackwell's testimony is undermined by the
testimony of Derzan, who was assigned to sit next
to Fennell during the class. Derzan never heard or
participated in the conversation with Fennell that
Blackwell described.
• Larry Franklin's testimony also undermines
Blackwell's testimony. Franklin did not hear the
conversation described by Blackwell and never
heard Fennell say anything disparaging about
Stacey.
• Blackwell's testimony that she did not make a
connection between Stacey's murder and Fennell's
statement until she spoke to Vasquez is
undermined by her testimony that she recalled
Fennell's statement when she returned to work
after the funeral and Franklin's testimony that he
and Blackwell discussed whether Fennell could
have killed Stacey. And during that conversation,
Blackwell told Franklin about Fennell's
statement.
• Blackwell's testimony is undermined because,
as a peace officer, she failed to report information
relevant to a homicide investigation.
• Blackwell's credibility is undermined by the
fact that she originally told Vasquez that Fennell
was joking when he made the statement but
 174a

testified at the hearing that Fennell was

“absolutely” serious.
• “Given the fact that Blackwell lived in Austin,
attended [Stacey's] funeral, and knew Fennell
from the academy, it is implausible that Blackwell
was entirely unaware, as she claimed, of the
circumstances surrounding [Stacey's] death.”
d. Statements of Jennifer and Brenda
Prater
Reed has submitted affidavits from Jennifer
and Brenda Prater. Both women claim that they saw
Stacey with a man, who was not Reed, in the early
morning hours of April 23rd. Jennifer maintained
that her husband, Paul, woke her up that morning
because there was a suspicious car behind their
house. The car was light in color, and Jennifer did
not recognize the driver or the passenger. The man in
the driver's seat had a dark complexion but was not
an African–American. The woman in the passenger's
seat was pale and had “big” hair. Jennifer and Paul
went outside to get a better look at the occupants.
Jennifer recalled that the two people in the car saw
them and drove off. Jennifer stated that she got a
good look at [742] the two because the interior light
in the car was on. Later she saw a picture of Reed
and was sure that he was not the driver of the car.
The man in the driver's seat had a lighter skin tone
and different facial features. When Jennifer's
mother-in-law showed her Stacey's picture in the
paper on the 25th, Jennifer knew that Stacey was the
woman who had been in the passenger's seat.
On the 25th, Jennifer's mother-in-law told her
that the police had been to Jennifer's house when she
 175a

was not home. The police walked into the house when
Jennifer's kids did not answer the door. Jennifer's
mother-in-law, who lived across the street from
Jennifer and Paul, saw the police arrive. She went to
Jennifer and Paul's house and confronted the police
about their entry into the house. Jennifer's mother-
in-law told Jennifer that the police threatened to call
Child Protective Services because the kids were home
alone. After Jennifer's mother-in-law explained that
she was watching the children until Jennifer
returned home, the police left, stating that they
would come back later.
When the police returned later that day and
spoke to Jennifer, they asked her about the car she
saw on the 23rd. Aware that she was lying, Jennifer
told the officers that she did not know anything.
Jennifer did not want to be involved in a criminal
investigation, did not trust the police, and was angry
at the police for entering her house.
Brenda Prater lived in a house a block away
from her brother, Paul, and her sister-in-law,
Jennifer. During the early morning hours on April
23rd, she was writing in her journal. She was awake
because her husband, whom she was in the process of
divorcing, called and harassed her. She called Paul
and asked him to keep an eye out for her husband.
Between 1:00 and 3:00 a.m., while Jennifer was
sitting outside in her front yard, she saw a light-
colored car pass by with three occupants.
The interior light was on. The driver was a
man who had a darker complection [sic], but
was not black. I thought that he was Mexican.
There was a woman in the passenger seat. She
was light complected [sic] with big dark hair. I
 176a

remember that, as the car drove by the first

time, the woman in the passenger seat turned
her head toward the driver. I got a very good
look at her face as they went by. There was a
white male in the back scat [sic]. At first I was
afraid that the man in the back seat was my
husband. I got a better look at him when the
car went through the second time and realized
that he was not my husband. I later spoke
with my brother Paul and Jennifer and they
told me they saw the same car in back of their
house.
Jennifer went to work the next day, and a
coworker asked if she heard about Stacey's murder
and showed her Stacey's picture in the newspaper.
Realizing that she had seen Stacey on the night she
disappeared, she began to yell, “When, when,
when[?]”
e. Fennell's Deceptive Polygraph
Results
Again, Reed directs our attention to Fennell's
polygraph exams, which led both examiners to
conclude that he was deceptive when asked about
Stacey's murder.
f. Faulty Forensic Analysis and
Collection of Forensic Evidence
Reed asserts that the various aspects of the
forensic testimony offered by the State and admitted
into evidence at trial lack a foundation in science. To
support his theory, Reed refers to an affidavit from
Dr. Leroy Riddick, an affidavit from Ronald Singer,
and to medical literature. Reed [743] included each
of these items in his habeas application.
 177a

Dr. Riddick is a medical examiner for the State

of Alabama. His affidavit, for the most part, is
devoted to criticizing Dr. Bayardo's conclusions.
First, Dr. Riddick contends that Dr. Bayardo's time of
death estimate is unreliable.
In order for the time of [Stacey's] death to
have been reliably determined, rigor mortis,
post mortem lividity, and body temperature
should have been recorded at the scene where
her body was found. These measurements are
the most common means for calculating time
of death, but none of this information was
recorded at the scene in this case. By the time
Dr. Bayardo saw [Stacey's] body for the
autopsy at 1:50 p.m. on April 24, the body had
been handled by multiple people, turned and
had been refrigerated for nearly a full day.
Consequently, it was too late for accurate
assessments of rigor mortis, lividity, and body
temperature to produce a reliable
determination of time of death.
Next, Dr. Riddick asserts that the evidence of
anal intercourse is inconclusive. Dr. Riddick faults
Dr. Bayardo for failing to preserve the slides that he
used to determine the presence of intact sperm in
Stacey's rectum. “[W]ithout the slides on which Dr.
Bayardo claimed to have seen the presence of sperm
heads from swabs from [Stacey's] rectum, this
conclusion cannot be verified.” Dr. Riddick states
that Dr. Bayardo's conclusion about the presence of
intact sperm would be more reliable if the rectal
swabs he used had been taken at the scene. Noting
the pubic-hair-tape lifts between Stacey's labia and
rectum conducted by Blakley and the manner in
 178a

which Stacey's body was moved, Dr. Riddick contends

that “there were several opportunities for leakage by
the time that Dr. Bayardo took the rectal swabs.” Dr.
Riddick asserts that “there is no evidence of anal
dilation at the time that [Stacey's] body was
recovered.” When Dr. Bayardo examined Stacey, it
was twenty-four hours after she died. “Rigor mortis
begins to pass 24 hours after death and makes
dilation of the anus easier, whether by finger, swab
or another object.” Dr. Riddick also maintains that “it
cannot be concluded with any degree of scientific
certainty that [Stacey's] anus was lacerated and that
those lacerations occurred around the time of death.”
The photographs taken at the autopsy do not show
redness, according Dr. Riddick. Redness is associated
with laceration and “would have accompanied a
laceration incurred at or around the time of death.”
Regarding Bayardo's testimony, Dr. Riddick states
that Dr. Bayardo mentioned lacerations on direct-
examination but described them as scrapes on cross-
examination. Further, Dr. Bayardo's report
mentioned only abrasions. Dr. Riddick contends that
lacerations and abrasions are not the same.
Lacerations of the anus could be consistent
with anal intercourse. In contrast, abrasions of
the anus are not as accurate an indicator of
anal intercourse, much less an anal assault.
Abrasions of the anus can and do occur
naturally, for example, due to constipation or
hemorrhoids.... ‘Scrapes' would be consistent
with an abrasion, not a laceration.
As for the cause of death, Dr. Riddick attacks
Dr. Bayardo's conclusion that Stacey died of
asphyxiation resulting from strangulation associated
 179a

with sexual assault. Dr. Riddick claims that it is

unknown whether the sexual contact was consensual.
“The best indicator of non-consensual sexual contact
is the existence of other injuries, such as being held
down. There are no injuries of this type.” Dr. Riddick
contends that there is no evidence [744] that Stacey
died from ligature strangulation because, with the
exception of the exterior injuries to Stacey's neck,
other common injuries associated with strangulation
were not present. Dr. Riddick suggests “some other
modality, such as smothering....”
Finally, regarding the collection of evidence at
the scene where Stacey's body was found, Dr. Riddick
claims that no effort was made to collect evidence
from under Stacey's fingernails. Even though
Stacey's nails were short, Dr. Riddick claims that the
investigators could have collected evidence with a
toothpick. Dr. Riddick contends that the video of the
crime scene does not show the authorities, who
collected evidence, changing gloves between tasks. In
making this critique, Dr. Riddick admits that he is
an expert in crime-scene evidence collection only in
so far as it relates to establishing time and cause of
death.
Dr. Riddick viewed the following items of
evidence in rendering his opinion: (1) Dr. Bayardo's
autopsy report; (2) photographs of Stacey's body at
the scene of discovery, Stacey's clothing, and Stacey's
body at the autopsy; (3) the video of the scene where
Stacey's body was discovered; (4) the trial testimony
of Dr. Bayardo; (5) the trial and habeas testimony of
Blakley; (5) DPS Crime Lab reports; (6) crime scene
reports; and (7) police reports of witness interviews.
 180a

In his affidavit, Singer, a consulting forensic

scientist who works at Tarrant County Medical
Examiner's Office Criminalistics Laboratory, focuses
on problems with the investigation of the scene
where Stacey's body was discovered and with
Blakley's testimony. Singer offers some of the
following personal observations and conclusions:
• Law enforcement officials exercised poor
security and control at the scene where
Stacey's body was discovered; “a perimeter
should have been established around the scene
with only one entrance and exit. Entrance and
egress should have been limited until that area
was thoroughly searched for tire prints, shoe
prints, and other evidence.”
• “The law enforcement authorities depicted on
the tape demonstrated poor technique in
dealing with, and taking evidentiary samples
from [Stacey's] body.” The origin of the blanket
used to cover her body is unknown and the
video does not show whether it was inspected
for trace evidence. “It was not good technique
for one of the crime scene analysts to put his
gloved hand into his pocket—as the video
shows—and then later handle trace evidence
without having changed to fresh gloves.”
Ungloved personnel touched the body and “one
of the individuals who moved [Stacey's] body to
a stretcher does not appear to be gloved.”
• It is probable that Blakley contaminated
Stacey's bra and breasts with trace evidence
because there is no evidence that the
criminalist changed gloves between taking
evidentiary samples. “This contamination
 181a

likely occurred when Ms. Blakley handled

[Stacey's] brassiere and breasts after taking
swabs and tape lifts from [Stacey's] pubic
area.”
• It is troubling that the criminalist failed to
swab the pieces of belt for DNA evidence. “If,
as the prosecution later theorized, this belt
was used to strangle [Stacey], the pieces likely
would have had trace DNA evidence from
[Stacey] and her attacker.”
• The videotape was poorly done; there is no
time marker and it begins after the crime
scene team arrived. As a [745] result, it does
not completely depict the activities of law
enforcement. “A better practice is to record
continuously from the moment that the police
get to the scene after the first responding
officer.” “[A] valuable record of evidence
collection—which could support or impeach the
integrity of the prosecution's evidence—has
been lost.”
• Blakley exhibited poor forensic practices and
repeatedly went beyond her area of expertise.
Blakley testified beyond her expertise when
stating how long Stacey was dead, identifying
marks on Stacey's body and dating the marks,
and opining that it was a crime of passion.
“[T]raining as a criminalist does not give one
the ability to estimate how long someone has
been dead. This determination is the province
of a pathologist.” And “[o]nly pathologists can
determine that a mark is, in fact, a bruise,
cigarette burn, scratch or bite, or how old the
mark is and how it was incurred.”
 182a

Finally, Reed cites to a book written by Dr.

William Green in 1998, entitled: “Rape: The
Evidential Examination and Management of the
Adult Female Victim.” In the book, Dr. Green surveys
studies conducted on the presence of nonmotile intact
sperm in the cervix and vagina. Dr. Green notes that
one study found intact sperm ten days after
intercourse.39 Other studies found the presence of
intact sperm in the cervix or vagina anywhere from
two days to nine days after intercourse.40 Reed
contends that Blakley's testimony estimating the
length of time that sperm can remain intact in the
“cervix” is patently false.
g. Fennell and the Giddings Police
Department's Reputation for
Violence
Reed maintains that both Fennell and the
Giddings Police Department have a reputation for
violence. Concerning Fennell, Reed points to a state-
civil-rights lawsuit filed against the City of Giddings,
Giddings Police Chief Dennis Oltmann, Giddings
Officer Nathan Lapham and Fennell for using
excessive force against suspects a year before Reed's
trial.
Reed also asserts that Fennell was violent
toward women he dated. Reed directs us to an
affidavit from Pamela Duncan, Fennell's girlfriend
from August 1996 to September 1997. Duncan

39WILLIAM M. GREEN, M.D., RAPE: THE

EVIDENTIAL EXAMINATION AND MANAGEMENT OF THE
ADULT FEMALE VICTIM 107 (Lexington Books 1988).
40 Id. at 107-08.
 183a

describes Fennell as abusive, possessive, controlling,

and extremely prejudiced toward African–Americans.
When Duncan broke up with Fennell, he stalked her
until he left Giddings; she was afraid for her safety
and that of her children.
He would drive by my house, night after night,
and shine a spotlight into the house. It got so
bad that I finally put tin foil up in my
windows, to reflect the light. He would stand
outside my house at night, screaming at me,
calling me a ‘bitch’ and other obscenities. He
would come by my job at the Circle K, and just
sit parked out front, with the headlights
shining into the store. He would stay there,
sitting in his car and watching me, for
anywhere from two minutes to two hours ...
Once he came into the store and wouldn't let
me out of the office—we had to call the police
to get someone to escort him out, so I could
leave. He would hassle any guy I tried to date
until it scared them away. For instance, I
dated one guy who delivered beer in town.
After we started dating, Jimmy sta[r]ted
pulling him over and giving [746] him tickets.
He got so many tickets he couldn't keep his job
anymore.
Summarizing the end of her relationship,
Duncan states that it was the worst time in her life.
Claiming that the Giddings Police Department
had a long-standing reputation for brutalizing
suspects and targeting non-whites at the time of
Reed's trial, Reed relies on a federal-civil-rights
action initiated against the Giddings Police
Department and another Giddings officer. Attached
 184a

to the plaintiff's petition in that case is an affidavit

from Keng. Keng recalled several instances of alleged
misconduct involving officers with the Giddings
Police Department using excessive force and recalled
some specific instances of alleged misconduct. He
also recalled requesting that the Texas Rangers
investigate abuse allegations when Chief Oltmann
failed to give him a satisfactory explanation about
the alleged abuse. A Ranger told Keng that there was
not much he could do because Chief Oltmann was
supporting his officer. In closing, Keng stated: “For
the past ten years, the Giddings Police Department
has had a reputation in Lee County of roughing up
suspects during their arrest.”
h. Statement of James Robinson
James Robinson contends that he had a
separate relationship with Stacey and Reed.
Robinson knew Reed from the nursing home where
they worked and knew Stacey from “school.”
Robinson saw Stacey and Reed together on numerous
occasions, kissing and calling each other “baby.” He
went to parties where Stacey and Reed would meet.
Lawhon would often be at the same parties, and
Stacey would say hello to him. After Stacey was
murdered, Reed seemed sad and angry. Robinson
was in the Bastrop County Jail while Reed was being
held there on this case. At the jail, Reed told
Robinson that he did not kill Stacey. Robinson was
told that he would be transferred to another county
and that he could not stay in Bastrop to testify at
Reed's trial. Robinson also declares that he was with
Chris Aldridge and Reed when Fennell stopped them,
telling Reed that he knew about Reed's relationship
with Stacey and that he would pay.
 185a

4. Discussion
[20] We hold that all of the reliable evidence,
both old and new, presented by Reed does not compel
the conclusion that it is more likely than not that no
reasonable juror would have voted to convict Reed.41
Initially, we note that what separates this case from
the majority of gateway-innocence cases is the
complete lack of a cohesive theory of innocence.
Reed's claim of innocence is seriously disjointed and
fragmented—he presents numerous alternative but
critically incomplete theories. By focusing on a
romantic relationship between himself and Stacey as
well as pointing to several alternative suspects—
Fennell, Lawhon, and some unknown dark-skinned
man—the new evidence before us fails to tell a
complete, rational exculpatory narrative that
exonerates Reed. None of Reed's theories meets the
gateway standard of innocence.
As Chief Justice Roberts recognized in his
concurring opinion in House v. Bell, “Implicit in the
requirement that a habeas petitioner present reliable
evidence is the expectation that a factfinder will
assess credibility.”42 Here, consistent with our writ
jurisprudence, we follow the credibility
determinations and factfindings made [747] by the
two judges who presided over Reed's habeas
proceedings. Both judges had the opportunity to
assess the demeanor of the witnesses who appeared
before them. Further, the trial judge who presided
over Reed's first and second habeas proceedings also

41 TEX.CODE CRIM. ANN. art. 11.071 § 5(a)(2).

42 547 U.S. at 556; see also Schlup, 513 U.S. at 332.
 186a

presided over Reed's trial. Based on our review of the

record, the findings entered by the trial judges and
discussed above are supported by the record; thus, in
several instances Reed has failed to provide us with
reliable evidence of innocence. The evidence that we
reject as unreliable includes: the Robbinses'
statements; the witnesses who affirmed a
relationship between Reed and Stacey; Allison's and
Hawkins's statements, even if regarded as credible;
and the information from Barnett and Blackwell.
Further, regarding Barnett's sighting, given the
evidence developed during the habeas proceedings
about Officer Hall's alibi, which has not been
undermined, and the lack of any reliable evidence
suggesting that Fennell had an accomplice, we
conclude that Barnett's information is not credible or
reliable.
Additionally, we find that Robinson's
statement is not credible for several reasons. First,
his statement is not sworn. Second, he contends that
he knew Stacey from school and that, as of 2000, he
has known Reed for eight or nine years. The evidence
at trial, however, establishes that Stacey moved to
Bastrop after graduating from Smithville High
School; therefore, Robinson's statement is suspect.
Third, Robinson's statements about seeing Stacey
and Reed together are general; Robinson offers no
specific facts that have been or could be corroborated.
Fourth, this statement lacks credibility because Jon
never mentioned that Robinson was present when
Reed was threatened by Fennell, even though he
gave two statements.
Based on the above, we refuse to credit the
foregoing evidence in assessing whether Reed has
 187a

made a prima facie showing that, in light of all of the

evidence before us, no reasonable juror would have
convicted him. We now consider the remaining new
evidence as it relates to the various alternative
theories of innocence offered by Reed.
a. Fennell
Excluding the items of evidence that we have
rejected, we consider the following evidence that,
according to Reed, suggests Fennell's involvement in
Stacey's murder: (1) Fennell's deceptive polygraph
results, regardless of their admissibility,43 even
though we question their reliability;44 (2) the DNA-
beer-can-test results that cannot exclude Officer
Hall; (3) evidence that Fennell's coworker, Officer
Davis, took sick leave shortly after beginning his
shift on the night of April 22nd; and (4) evidence that
Fennell and the Giddings Police Department had a
reputation for violence.
Although this new evidence may indeed arouse
a healthy suspicion that Fennell had some
involvement in Stacey's death, we are not convinced
that Reed has shown by a preponderance of the
evidence that no reasonable juror, confronted with
this evidence, would have found him guilty beyond a
reasonable doubt. The evidence of vaginal assault,
which we will discuss more fully below, and the
circumstantial evidence admitted against Reed at
trial have not been undermined and still support a
guilty verdict.

43 See Schlup, 513 U.S. at 327-28.

44 See United States v. Scheffer, 523 U.S. 303, 309-12
(1998).
 188a

b. Consensual Sexual Relationship

[748] Reed contends that the evidence from
Dr. Riddick, Singer, and Dr. Green's book establishes
only that he and Stacey had sexual relations at some
point before her death and that there is no credible
evidence that Stacey was raped. We disagree. When
considered in conjunction with the trial evidence,
Reed's new evidence does not verge on establishing
that it is more likely than not that no reasonable
juror would have convicted Reed.
Reed contends that the evidence of anal
intercourse is inconclusive. From our reading of
Reed's briefing, it is apparent that Reed theorizes
that, if Stacey was not anally sodomized, then the
uncontested forensic evidence of vaginal intercourse
was from a consensual encounter and Reed is
therefore not her killer. This theory is illogical. Any
deficiency in the evidence suggesting anal
intercourse does not necessarily support Reed's
theory that he and Stacey engaged in consensual
vaginal intercourse. Likewise, evidence of anal
intercourse does not conclusively establish that the
encounter was forced. Nevertheless, the competing
evidence that semen leaked from the vagina to the
anus was before the jury. Blakley stated that she did
not see a significant amount of leakage in Stacey's
underwear and therefore could not conclude that
semen from her vagina was transferred into her
rectal cavity. Blakley observed only “[f]our small,
maybe less than dime-sized spots” of semen in
Stacey's underwear, which was atypical for a
significant amount of leakage. According to Blakley,
this indicated that Stacey did not move much after
intercourse. Garvie cross-examined Blakley about the
 189a

movement of Stacey's body after it was discovered.

Blakley stated that she rolled Stacey's body onto the
stomach so they could look at the back side. Stacey's
body was then rolled back, transferred onto the
gurney, and transported to Dr. Bayardo's office in
Austin.
Dr. Johnson claimed that leakage from the
vagina is common and stated that semen could be
detected in areas surrounding the vagina, including
the anal area. Movement of the body, according to Dr.
Johnson, makes leakage more likely. She added, “A
very small number of sperm that would be collected
in an area would [be] much more likely to come from
a contamination of the swab touching one area as it's
inserted into another, or drainage from around that
area.” Semen in low numbers is not indicative of an
ejaculate and is more likely to be discovered due to
leakage.
Dr. Riddick's contentions that moving Stacey's
body created several opportunities for leakage, which
in Reed's view supports his theory that there was no
anal intercourse, was presented to the jury and is
therefore cumulative. Because of this, we cannot say
that Reed's new evidence regarding leakage would
have had any appreciable impact on the jury's
verdict.
Additionally, Dr. Riddick's opinions that there
is no evidence that Stacey's anus was dilated and
that it cannot be concluded with any degree of
scientific certainty that Stacey's anus was lacerated
merely presents differing opinions that a jury could
reject.
 190a

In any event, when the conflicting evidence about

anal penetration is viewed in conjunction with the
evidence at trial, Reed has not shown by a
preponderance of the evidence that no reasonable
juror would convict him.
Compelling, independent circumstantial
evidence showed that Reed forced Stacey to have
vaginal intercourse. When discovered, Stacey's body
was partially disrobed, her pants were unzipped, the
top of her pants were parted, the zipper was broken
and was “jammed down onto the metal that holds—
the piece of metal that clamps [749] the zipper
together, a tooth from the zipper was pulled off and
missing, and her underwear was bunched down
around her hips.” Contrary to Dr. Riddick's opinion
that Stacey had no other injuries consistent with an
assault, Blakley noted a darkened area on the inside
of the elbow on Stacey's left and right arms. The
bruise was there before Stacey died because bruising
does not occur or increase after the heart stops
beating. On Stacey's right arm, Blakley also noted a
mark that was “very consistent with a fingernail
being dug into the flesh.” Blakley believed these
marks suggested physical violence. Blakley opined
that the bruises resulted from “a small area of
pressure being applied to the skin, either from a
fingertip or instrument, something sharp but
localized.” Regarding her ability to differentiate
between old and recent bruises, Blakley noted that
Stacey had older yellow and green bruises on her
upper thighs, which were consistent with Stacey
carrying boxes at H.E.B. Dr. Bayardo documented
pre-mortem injuries to Stacey's head that suggested
that she had been hit with a closed fist.
 191a

Furthermore, Stacey's life circumstances

leading up to her death strongly support a finding
that she did not willingly participate in vaginal
intercourse with Reed. When Stacey was murdered,
the wedding she carefully planned and helped pay for
by working the early-morning shift at the H.E.B. was
only eighteen days away; she and Fennell were in the
final stages of preparing for the wedding and their
future as a married couple. Stacey devoted every free
moment of her time to planning the details of the
wedding. Her mother, Carol, suffered from a nervous
condition that caused her to get depressed. When
Carol's exhaustion and stress from helping Stacey
with the planning came to a head the day before
Stacey was murdered, Carol asked Stacey if she was
certain that she wanted to marry Fennell. Stacey
reassured her mother, stating, “I love Jimmy[,] and
I'm going to marry him.” Stacey also told her mother
that her mother needed to get over her anxiety about
the wedding.
The evidence at trial also establishes that
Stacey consistently arrived to work on time. Further,
Stacey's body was partially dressed in the H.E.B.
uniform when it was discovered. This shows that she
was en route to work and fully intended to be there
at 3:30 a.m., as scheduled. Stacey was murdered at
some point before 5:23 a.m., when Officer Alexander
first noticed Fennell's truck at the High School with a
piece of Stacey's belt lying on the ground outside the
door. Finally, despite Reed's efforts, he presents no
credible evidence showing that he had a romantic
relationship with Stacey.
The State also presented relevant
circumstantial evidence implicating Reed at trial. For
 192a

example, authorities knew Reed routinely walked

around Bastrop late at night and in the early
morning. Authorities frequently saw Reed walking
near the roads that Stacey traveled on her way to the
H.E.B. Further, it was convenient for Reed to leave
Fennell's truck parked at the Bastrop High School.
The School was near Reed's house, where Reed
walked at odd hours. With Reed's height at six feet,
two inches, the position of the driver's seat and the
rearview mirror also supports the State's theory that
Reed was the last person who drove the truck.
Importantly, Reed denied knowing Stacey when he
was first questioned by authorities. This made Reed's
claim of a consensual sexual relationship, offered for
the first time at trial, look like a manufactured and
implausible explanation to account for the presence
of his semen.
[750] Reed also takes issue with Blakley's
testimony about the viability of sperm, and in doing
so, Reed points to Dr. Green's survey of studies on
nonmotile-intact sperm. To Reed, the small amount
of leakage of semen from Stacey's vagina is
consistent with Stacey having sex with Reed at least
a day before her death. The studies cited by Dr.
Green do not fully support Reed's contentions. For
example, the study that reported finding intact
sperm after ten days was based on an analysis of
cervicovaginal scrapings. In this case, Blakley used
vaginal swabs. Next, Blakley's testimony that the
outside length of time for finding the presence of
intact sperm is twenty-six hours was not the only
testimony on the issue. When Dr. Bayardo conducted
the autopsy at 1:50 p.m. on the 24th and obtained his
own vaginal swabs, he documented the presence of
intact sperm and testified at trial that this meant the
 193a

semen was introduced into the vagina a day or two

before the exam. Thus, Dr. Bayardo's estimate about
the length of time that sperm can remain intact in
the vagina exceeded the length of time that Blakley
testified to and is consistent with Reed's theory that
he and Stacey had consensual vaginal intercourse at
least a day before her death. Furthermore, even if we
assume that Blakley and Dr. Bayardo
underestimated the length of time that sperm will
remain intact, we conclude that, given the other
evidence in this case, Reed has failed to meet his
burden.
Finally, citing cross-contamination, Reed
contends that testimony at trial that the breast
swabs taken by Blakley contain saliva is unreliable.
Reed claims that the State simply found epithelial
cells, which are present in semen along with sperm.
In support of this, Reed relies on Dr. Riddick's
statement that it is likely that Blakley contaminated
Stacey's breasts with trace evidence. At trial, Dr.
Johnson testified that the swabs taken from Stacey's
breasts contained saliva samples. Dr. Johnson
identified the substance as saliva based on an
amylase test. Amylase is a primary component of
saliva, according to Dr. Johnson. Dr. Johnson stated
that it was likely that the saliva got there after
Stacey's last shower, which was the night before she
was murdered.
To refute Dr. Johnson's testimony, Reed points
to Singer's affidavit. Singer maintains:
Amylase testing is a procedure that is helpful
as a screening device. It is, however, a general
test and cannot be relied upon to identify a
specific body fluid such as saliva with
 194a

accuracy. We have discovered, for example,

that amylase testing routinely indicates a
presumptive positive in reaction to certain
plant matter as well as vaginal fluid and non-
human body fluid.
The possibility that the substance on the
breast swabs was not saliva was before the jury. Dr.
Johnson stated that amylase is found in other fluids.
Furthermore, Singer offers only an alternative theory
that the jury could have chosen to disregard.
However, even if we assume that the type of
substance is unreliable because of cross-
contamination, considering the evidence at trial, it is
highly unlikely that any reasonable juror would view
the presence of Reed's semen in Stacey's vagina as
the by-product of a intimate, consensual interlude
between the two.
c. The Unidentified Male or Men
The statements from Jennifer and Brenda
Prater also fail to make a threshold showing of
innocence. First, we question their reliability because
they did not come forward with this information until
September 2002, even though the investigation into
Stacey's death was well known in Bastrop. [751]45
Further, we find that Jennifer's credibility is also
suspect because her husband, Paul, failed to
corroborate his wife's account in an affidavit.
However, we need not linger on this point. This
evidence has no continuity with any of the other new

45 Goldblum v. Klem, 510 F.3d 204, 230 (3d Cir. 2007)

(considering the timing of a disclosure and credibility of a
witness in assessing the probable reliability of a statement).
 195a

evidence offered by Reed and does not fit within the

chronicle of events that the trial evidence supports.
Thus, when the information about Stacey from
Jennifer and Brenda is viewed alongside the evidence
at trial, we cannot say that Reed has established that
it is more likely than not that no reasonable juror
would have convicted him.
Because, after reviewing the cumulative force
of all the foregoing evidence, Reed has failed to
satisfy the gateway standard under Article 11.071,
Section 5(a)(2), we refuse to reach the merits of
Reed's Brady and ineffective assistance of counsel
claims.
V. Conclusion
In reviewing Reed's Brady claims that
satisfied Article 11.071, Section 5(a)(1), we hold that
Reed has failed to show that the State did not
disclose favorable evidence. We also hold that Reed
has not made a threshold, prima facie showing of
innocence by a preponderance of the evidence under
Article 11.071, Section 5(a)(2). Therefore, we refuse
to consider the merits of Reed's other constitutional
claims. We deny relief.

DATE DELIVERED: December 17, 2008

PUBLISH
 196a

THIS PAGE INTENTIONALLY LEFT BLANK

 197a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

RODNEY REED, §
Petitioner §
§
v. § CIVIL ACTION NO.
§ A-02-CA-142
DOUG DRETKE, §
Director, Texas §
Department of §
Criminal Justice, §
Institutional Division, §
Respondent §

DECLARATION OF
ROBERTO J. BAYARDO, M.D.

STATE OF TEXAS §
§
COUNTY OF TRAVIS §

1. My name is Roberto J. Bayardo, M.D. I

am over the age of 18 years and fully competent in all
respects to make this Declaration. All the facts
recited herein are within my personal knowledge and
are true and correct. All of the opinions recited
herein are expressed within a reasonable degree of
medical and/or scientific probability, except where
noted.
2. I am a forensic pathologist, and the
former Travis County Medical Examiner. I performed
the autopsy on Stacy Stites, and testified at the trial
 198a

of Rodney Reed. I have recently reviewed the

following materials:
a. The autopsy report on Ms. Stites;
b. My trial testimony;
c. Excerpts from the trial testimony of
Karen Blakely and Meghan Clement;
and
d. The April 14, 2006 affidavit and June
16, 2010 declaration of Leroy Riddick,
M.D.
I am also personally aware that Jimmy Fennell, who
was a Giddings police officer at the time of Ms.
Stites's death, and was a suspect in her murder, has
been convicted of sexual assault while serving as
police officer in Georgetown, Texas and is in prison.
Based on the materials identified above, the
information concerning Mr. Fennell, and my
expertise as a forensic pathologist, I have the
following opinions and clarifications.
3. Time of Death. At trial, I testified that I
estimated the time of death as 3:00 a.m. on April 23,
1996. Estimates regarding time of death are just that
— estimates — and the accuracy of the estimate is
subject to various factors, as outlined by Dr. Riddick
in paragraphs 10-13 of his April 14, 2006 affidavit.
My estimate of time of death, again, was only an
estimate, and should not have been used at trial as
an accurate statement of when Ms. Stites died. (As I
testified, I am unaware of how long it was between
the time of death and the time her body was brought
to the Travis County Medical Examiner's office.) If
the prosecuting attorneys had advised me that they
 199a

intended to use my time of death estimate as a

scientifically reliable opinion of when Ms. Stites died,
I would have advised them not to do so. In my
professional opinion, pinpointing a precise time of
exactly when Ms. Stites died would have been, and
remains, impossible.
4. Survival of Sperm. At trial, I testified
that the very few spermatozoa I found in Ms. Stites's
vaginal cavity had been deposited there "quite
recently." Ms. Blakely testified that spermatozoa can
remain intact in the vaginal cavity for no more than
26 hours; and Ms. Clement testified that
spermatozoa can remain intact for no more than 24
hours. I question the qualifications of these witnesses
to offer this testimony, and in any event, they are
incorrect. I am personally aware of medical literature
finding that spermatozoa can remain intact in the
vaginal cavity for days after death. Accordingly, in
my professional opinion, the spermatozoa I found in
Ms. Stites's vaginal cavity could have been deposited
days before her death. Further, the fact that I found
"very few" (as stated in the autopsy report)
spermatozoa in Ms. Stites's vaginal cavity suggests
that the spermatozoa was not deposited less than 24
hours before Ms. Stites's [2] death. If the prosecuting
attorneys had advised me that they intended to
present testimony that spermatozoa cannot remain
intact in the vaginal cavity for more than 26 hours,
and argue that Ms. Stites died within 24 hours of the
spermatozoa being deposited, I would have advised
them that neither the testimony nor the argument
was medically or scientifically supported.
5. Sperm Not Found in Rectum. I reported
in the autopsy report and testified at trial that rectal
 200a

smears taken of Ms. Stites were negative for

spermatozoa and seminal fluid. Upon direct
examination, I did testify that under a microscope,
the rectal smears showed what appeared to be the
heads of spermatozoa. However, the smears were
insufficient to conclude that spermatozoa were
present in the rectum. Accordingly, I reported the
smears as negative on the autopsy report. My trial
testimony should not have been construed as
suggesting that spermatozoa were indeed found in
Ms. Stites's rectal cavity. Had the prosecuting
attorneys advised me that they intended to present
my testimony as evidence that spermatozoa was
found in Ms. Stites's rectal cavity, I would have
informed them that that was incorrect. An autopsy
report is the result of scientifically valid, forensic
pathology methods. Trial testimony is given in
response to the questions asked. Had I been asked at
trial if spermatozoa and/or seminal fluid had been
found in Ms. Stites's rectal cavity, I would have said
that it had not, consistent with the autopsy report.
6. Sexual Assault. I found on autopsy that
Ms. Stites was sexually assaulted, and testified
consistently at trial. However, the presence of
spermatozoa in Ms. Stites's vaginal cavity was not
evidence of sexual assault. There was no indication
that the spermatozoa in Ms. Stites's vaginal cavity
was placed there in any fashion other than
consensually. Also, because there was no
spermatozoa found in Ms. Stites's rectal cavity, there
is no evidence that any spermatozoa was deposited in
the rectal cavity as a result of the sexual assault. In
my [3] professional opinion, Ms. Stites was sexually
assaulted in her anal cavity, and that assault did not
result in the deposit of any spermatozoa. The injuries
 201a

to Ms. Stites's anus are certainly consistent with

penile penetration, as I testified, but if there was
penile penetration, there was no ejaculation. I
understand that the sexual assault for which Mr.
Fennell was convicted did not involve ejaculation.
This is consistent with the sexual assault on Ms.
Stites. Further, the injuries to Ms. Stites's anus are
more consistent with penetration by a rod-like
instrument, such as a police baton.
7. I declare under penalty of perjury under
the laws of the United States of America that the
foregoing is true and correct.
Executed on August 13, 2012.
 202a

AFFIDAVIT OF WERNER U. SPITZ, M.D.

STATE OF MICHIGAN )
) ss
COUNTY OF MACOMB )

I, Werner U. Spitz, M.D., having been duly

sworn and having personal knowledge of the matters
set forth in this affidavit, hereby states:
I am a medical doctor licensed to practice
medicine. I graduated from medical school in 1953
and have undertaken residency in pathology followed
by fellowship in forensic pathology. I am certified by
the American Board of Pathology in anatomic
pathology (1961) and forensic pathology (1965). I
have spent my entire professional life (62 years) in
the practice of forensic pathology. My curriculum
vitae is attached.
1. My review of the autopsy report, autopsy
photos, crime scene photos, crime scene video, and
report of crime scene investigation leads me to
conclude that Stacey Stites was murdered prior to
midnight on April 22, 1996 (the night before her body
was found). And further that she laid in a different
position for about 4-5 hours before she was moved to
the location where the body was found.
2. The lividity (livor mortis, red purple
discoloration due to pooling of blood after death) on
Stites's face, shoulder, and arm, scientifically proves
that she was dead in a position different from that
which she was found for a period of at least 4-5
hours. This pattern of lividity seen on the anterior
arm, chest, shoulder, and face would develop if Stites
was lying face down with one arm lower than the rest
 203a

of the body for 4-5 hours, before she was moved to the
position in which she was found. It is impossible that
this lividity occurred at the scene in the position the
body was found because Stites's body was found on
her back. I have reviewed investigation reports
indicating that mucus-like fluid was found near the
passenger floor board of the truck belonging to
Stites's fiancé. The presence of this fluid in
combination with the lividity on the arm, shoulder
and face is consistent with Stites being killed at a
different location and later placed into the pick-up
truck, resting with her face and arm lower than the
rest of the body. This would explain both the mucus-
like fluid near the passenger floor of truck and the
blanching (areas where blood is pressed out of the
skin) on the fingers as if pressed into something after
death.
3. The presence of lividity in these non-
dependent areas makes it medically and scientifically
impossible that Stites was killed between 3-5 am. on
the date in question. Stites could not have been both
murdered and dumped between the hours of 3-5 a.m.
on April 23, 1996 and remained undisturbed in that
spot until her body was discovered at around 3 p.m.
because the lividity observed in the non-dependent
areas [1] would have taken at least 4-5 hours to
develop. It is impossible that Stites was murdered
and left at the scene in the two-hour time frame
asserted by the State at trial. I have reviewed the
trial transcripts of the pathologist Roberto Bayardo
M.D. and the Crime Scene Investigator Karen
Blakely. The medico-scientific analysis of the lividity
I discuss was never addressed.
 204a

4. Dr. Bayardo describes "slight residual" rigor at

autopsy conducted at 1:30 p.m. on April 24, 1996,
after the body was refrigerated since approximately
11 p.m. on April 23rd. Rigor is seen on the crime
scene video, but the arms are easily placed down
from above Stites's head as she is put into a body bag
before sundown on April 23, 1996. This movement of
the arms shows passing rigor. Likewise, "slight
residual rigor" after refrigeration at the ME's office is
consistent with passing rigor, at the time the body is
filmed in the video.
5. Rigor is markedly temperature-dependent. In
warm weather rigor mortis progresses faster, in cool
weather it progresses more slowly. The average
temperature on April 23rd was in the mid-60s.
Taking this temperature into consideration, passing
rigor, as depicted in the video, is consistent with
death of about 20-24 hours prior to the video—a
period of 15 hours as estimated by Dr. Bayardo would
not allow for such movement, without having broken
the rigidity.
6. Very few sperm were found on autopsy smears,
and the crime scene investigator found only 3 intact
spermatozoa. If the victim was sexually assaulted
between 3-5 a.m., there would be more sperm found
on slides. A normal sperm count is considered to be
15 million spermatozoa per milliliter. The amount of
sperm found on the slides is more consistent with a
longer interval between intercourse and the time the
sample was collected. As I explain in my book, intact
spermatozoa can be found in the vagina up to 72
hours after coitus.
7. My review shows evidence of decomposition
that is not consistent with a time of death at 3 a.m.
 205a

on April 23, 1996. The body is described as having

green discoloration, which can be seen in the video.
The appearance of the breasts after the bra is
removed shows gas formation. The abdomen does not
appear flat. There is skin slippage in several places.
What is described at autopsy as post mortem burns
in the face, breasts, and other areas is also likely skin
slippage, in which the top layer of skin has dried.
What has been described as petechiae in the scalp
are none other than small torn blood vessels in the
process of reflection of the scalp. Brown fluid running
from the mouth and nose, across the right cheek is
decomposition fluid and is not described in the
autopsy report. Internal organs also show evidence of
decomposition—what Dr. Bayardo describes as
congestion in lungs is actually decomposition. The
heart is flabby and the blood is liquid after
liquefaction which is part of the decomposition
process. [2] Brain swelling is also part of
decomposition. This amount of decomposition
supports a post-mortem interval of about 20 to 24
hours before the film and photographs.
8. The distended anus seen in photos and
described at autopsy is normal, in consideration of
the absence of rigidity. It is a common mistake for
death investigators to misinterpret natural
relaxation of the sphincter, as evidence of anal
penetration. There are no apparent lacerations in the
photographs of the anus, If lacerations were present,
they would be visible. Abrasions described at autopsy
are not evidence of anal assault, and are equally
consistent with hard bowel movements. I am aware
that there was a weak DNA result consistent with
Rodney Reed on the sperm fraction of the rectal swab
taken from Stites. The presence of a small amount of
 206a

sperm in the rectum is not surprising and does not

contradict my conclusion that there is no evidence of
anal penetration in this case. When semen is present
in a body, it can drain from the vagina into the
dilated anus. I have seen this happen in a number of
cases. Contamination of the rectal swab by vaginal
contents is also a concern, especially in cases where
vaginal swabs are collected prior to the taking of the
rectal specimens.
9. The examination of the body at the scene was
inappropriate. None of the investigation should have
been done by the crime scene investigator. The body
should have been placed in a body bag, preserving all
trace evidence, and then taken to a controlled
environment where it could be examined by a
forensic pathologist. But despite these errors, the
photographs and video provide enough evidence to
estimate the post-mortem interval. These observable
factors include: lividity, rigor, amount of residual
sperm in the genital tract, and evidence of
decomposition. When all of these factors are
considered together, it becomes indisputable that the
time of death was considerably earlier than 3:00 am
on April 23rd as estimated by Dr. Bayardo. All
findings point to a post-mortem interval of about 20-
24 hours prior to the time the body was filmed.
10. My textbook, MEDICOLEGAL
INVESTIGATION OF DEATH, 4th edition,
published by Charles C. Thomas, Springfield, Illinois,
2006 discusses many of the issues in this affidavit in
greater detail. [3]
11. All my opinions expressed in the above
paragraphs 1-10 are based on my education, training
 207a

and experience and are rendered to a reasonable

degree of medical certainty.

_________________________
Werner U. Spitz, M.D.

Sworn to and subscribed before me on February 4th,

2015.

/s/ Diane L. Lucke .

Diane L. Lucke, Notary Public, State of Michigan
Monroe County, Acting in Macomb County
My commission expires: October 20, 2017
 208a

Michael M. Baden, M.D.

15 West 53rd Street, Suite 18

New York, New York 10019
Telephone: (212) 397-2732
Facsimile: (212) 397-2754
E-mail: [email protected]

10 February 2015
Via e-mail to [email protected]
Bryce Benjet
Staff Attorney, Innocence Project
40 Worth Street, Suite 701
New York, New York 10013
Re: Stacey Stites, deceased
Dear Mr. Benjet:
1. I am a physician, licensed to practice
medicine in the State of New York and Board-
Certified in Anatomic, Clinical and Forensic
Pathology. I am a former Chief Medical Examiner of
New York City and the former Chief Forensic
Pathologist for the New York State Police. I have
held professorial appointments at Albert Einstein
Medical School, Albany Medical College, New York
Law School and John Jay College of Criminal Justice.
I served as Chairman of the Forensic Pathology
Panels of the United States Congress Select
Committee on Assassinations that reinvestigated the
deaths of President John F. Kennedy and Dr. Martin
Luther King, Jr. (1970s). I have been a forensic
pathology consultant to the Federal Bureau of
Investigation, [2] the Veterans Administration, the
 209a

U.S. Department of Justice and the U.S. Drug

Enforcement Agency. Attached hereto is a copy of my
curriculum vitae.
2. I have reviewed the autopsy report and
other medical examiner office documents, scene and
autopsy and clothing photographs, a scene videotape,
police reports, laboratory reports and a statement by
Mrs. Carol Stites relative to the death of Stacey
Stites, 19 years old.
3. According to Mrs. Stites, her daughter
returned from work as usual about 1:30 p.m. on April
22, 1996. She went upstairs to the apartment she and
her fiancé Jimmy Fennel, a police officer, shared,
changed out of her work clothes and came back down.
She stayed with her mother until about 8:00 p.m.
when Mr. Fennel returned from baseball practice and
they both went upstairs. That was the last time Mrs.
Stites saw her daughter alive.
4. Mr. Fennel told police that Ms. Stites
left their apartment to drive to work in his pickup
truck by herself about 3:00 a.m. on April 23, 1996.
The unoccupied truck was seen parked in the
Bastrop High School parking lot by a patrol officer
less than 2-1/2 hours later, at 5:23 a.m. The officer
also noticed a six to eight inch length of part of a
leather belt with a square chrome buckle on the
ground in front of the driver's door.
5. Ms. Stites' partially clothed body was
found lying face-up in brush a number of yards from
an unpaved road about 3:00 p.m. the same day.
Prominent [3] lividity was noted on the front non-
dependent parts of her body by responding sheriff's
department officers. This inappropriate lividity is
 210a

clearly documented in scene photographs. A

homicidal ligature mark was present around her
neck and the ligature, the remainder of the belt
portion seen near the truck, was nearby.
6. Lividity develops by the gravitational
settling of red blood cells while still in blood vessels
in the lower dependent portions of the body after
death causing a maroon-type discoloration of the
skin. The intensity and extent of the lividity present
on Ms. Stites' body demonstrates that she would
have lain face down after she was dead for more than
four or five hours in order for this lividity to remain
after she was turned over when she was placed on
her back in the brush. This lividity demonstrates
that Ms. Stites was dead before midnight on April
22nd when she was alone with Mr. Fennel.
7. Examination of the truck showed that
the driver's seat was reclined back and the passenger
seat was in a slightly forward position. "Some type of
viscous fluid" was found on the passenger-side
floorboard. DNA analysis showed that this fluid came
from Ms. Stites. This is not pulmonary edema fluid
which is thin and frothy and would also have been
present in her mouth and nose and windpipe, and
was not. Pulmonary edema fluid is not viscous. This
is typical post-mortem purge fluid that flowed from
her nose and mouth as her body began to decompose
and showed other decomposition changes, such as
skin slippage and [4] green discoloration of skin,
which were also described at the scene and autopsy.
It would have taken more than four hours after her
death for this purge fluid to develop. It could not
have developed in less than 2-1/2 hours if she were
alive at 3:00 a.m. when she got into the truck. This
 211a

finding also demonstrates that she had been dead for

a number of hours, before midnight, when she was
placed in the passenger seat.
8. The testimony at trial that no intact
sperm remains in the vagina after 24 hours is not
correct. It is my experience, and the experience of
other forensic pathologists as reported in the forensic
science literature, that sperm may remain intact for
more than 72 hours after intercourse. The few sperm
seen are entirely consistent with consensual
intercourse that Mr. Reed said occurred between
midnight and 3:00 a.m. on April 22, 1996.
9. The autopsy photographs show
dilatation of Ms. Stites' anus that normally occurs
after death when the anal sphincter muscles relax.
No lacerations, no blood, no semen were present in or
around the anus in the photographs and which
finding was also confirmed in Dr. Bayardo's autopsy
report. There is no evidence of anal penetration.
There is no forensic evidence that Ms. Stites was
sexually assaulted in any manner.
10. In my opinion removing the clothing and
performing vaginal swabs at the scene where the
body was found rather than at the properly equipped
medical [5] examiner's office is contrary to proper
forensic practice. Such procedure can cause loss of
trace evidence at the scene and contamination of
evidence that is removed and evidence that remains,
including contamination of rectal swabs with vaginal
contents.
11. It is my opinion, to a reasonable degree
of medical and scientific certainty, based on my
education, training and more than fifty years'
 212a

experience as a forensic pathologist, that the

distribution and intensity of Mrs. Stites' lividity
shows that she was murdered before midnight of
April 22, more than four hours before she was
brought to where her body was found; that she was
already dead with signs of decomposition and
development of purge fluids when she was placed in
the truck; that intact sperm could be present two or
three days after consensual vaginal intercourse; and
that there is no evidence of anal intercourse or of
sexual assault. It is further my opinion beyond a
reasonable degree of medical certainty that, based on
all of the forensic evidence, Mr. Reed is scheduled to
be executed for a crime that he did not commit.

Very truly yours,

Michael M. Baden, M.D.

Former Chief Medical Examiner,
City of New York
Former Chief Forensic Pathologist,
New York State Police

MMB:ph
 213a

County of Mobile )

State of Alabama )

Affidavit of LeRoy Riddick, M.D.

LeRoy Riddick, M.D., being duly sworn, deposes and

says upon penalty of perjury thereof:
1. My name is LeRoy Riddick and I am a medical
doctor licensed to practice in the State of Alabama. I
am board certified in anatomic and forensic
pathology. I served as an adjunct professor in the
pathology department at the University of South
Alabama College of Medicine until i retired from that
position in 2013. I retired from employment with the
State of Alabama in 2006. Before my retirement, I
was employed as a State Medical Examiner by the
Alabama Department of Forensic Services, an agency
of the State of Alabama. In addition, I served as the
County Medical Examiner for the County of Mobile,
Alabama and Laboratory Director for the Region IV
Full Service Forensic Science Laboratory for the
Alabama Department of Forensic Sciences. I was
employed both as a State Medical Examiner and as
County Medical Examiner for over 25 years. I
currently consult privately on issues of forensic
pathology. I was deputy medical examiner in
Washington D.C. from 1974 until I moved to
Alabama in 1979.
2. Over my career with the State of Alabama, my
responsibilities extended to virtually every aspect of
forensic investigation. I have attended over 75
 214a

homicide scenes and conducted thousands of

autopsies. In my capacity as the administrative
director of the Region IV Full Service Forensic
Laboratory in the State of Alabama, I also worked
with scientists and analysts in drug chemistry,
firearms and toolmarks, forensic biology (DNA),
toxicology, and latent fingerprint examination.
3. I have testified as a qualified expert witness in
more than 500 court appearances in a number of
jurisdictions including the federal courts in Alabama,
the District of Columbia and Louisiana, and in state
courts in Alabama and Mississippi. I have testified
for the prosecution and the defense. In most of the
cases in which I have testified as an expert witness, I
have done so on behalf of the prosecution in state
court and the federal government in federal court.
My curriculum vitae is attached to this Affidavit as
Exhibit 1.
4. I examined the following items from State of
Texas v. Rodney Reed:
a. Medical Examiner's Report of the autopsy
of Stacey Stites performed by Robert J.
Bayardo, M.D.;
b. Photographs of: Ms. Stites' body at the
scene where it was recovered; Ms. Stites'
clothing; and Ms. Stites' body at the
autopsy;
c. The videotape showing where Ms. Stites'
body was recovered and evidence
collection;
d. The trial testimony of Robert J. Bayardo,
M.D., Meghan Clement, and Elizabeth
 215a

Johnson and the trial and state habeas

corpus hearing testimony of Karen
Blakely;
e. Reports from the Texas Department of
Public Safety Crime Laboratory;
f. Crime scene reports from various law
enforcement agencies; and
g. Police reports of witness interviews and
the Affidavit of Rodney Reed.
I have also conferred with other experts regarding
this case and reviewed written statements by Ronald
Singer, M.S., Roberto Bayardo, M.D., and Joseph
Warren, Ph.D. Based upon my review of the
documents listed above, and based upon my
knowledge, training, experience and education, I
have reached several conclusions and opinions which
are expressed in this affidavit. These conclusions and
opinions are based upon a reasonable degree of
medical certainty.
5. I was initially retained over 10 years ago to
assist attorneys representing Rodney Reed in
evaluating the forensic evidence in the case. I have
previously provided written opinions in 2003, 2006,
and in 2010. 1 was contacted again in the fall of 2014
to re-examine the case and to supplement the
opinions that I have previously offered in this case if
I discovered anything new in this re-examination. I
was asked specifically to look at the crime scene
video, crime scene and autopsy photographs, and
other documents to see if they contained evidence
that would assist in determining the post mortem
interval. As part of my re-evaluation of the case, I
have also conferred with other experts in forensic
 216a

investigation. In conducting this re-evaluation of the

case, I have noticed additional forensic evidence
which has allowed me to address the post-mortem
interval with greater accuracy than I have in my
prior statements.
Post Mortem Interval
6. The post mortem interval (the time between
the victim's death and the time when the body is
discovered) is one of the most difficult tasks of the
death investigator with the most experienced and
qualified forensic investigator being the medical
examiner, forensic pathologist. Currently in forensic
practice, there is no scientific means of determining
that interval with precision. The investigator is left
with making an estimation based on the
circumstances surrounding the body and the post
mortem changes in the body, which generally
progress in a regular manner. These changes are
rigor mortis (stiffening of the muscles to chemical
alterations in the cells), livor mortis (pink to red
discoloration of the skin due to blood settling in the
vessels and later seeping into the skin), and algor
mortis (cooling of the body.) Examination of the
chemical composition of the vitreous humor, the fluid
in the eye can also be employed. All of the modalities
with the exception of analysis of the vitreous humor
need to be systematically determined at the scene by
the medical examiner, the scientist with the most
experience in making these determinations. In this
case, the medical examiner did not attend the scene
and none of the investigators, including the law
enforcement officers and forensic technicians,
systematically examined the body for rigor, livor, and
temperature. The vitreous was never analyzed.
 217a

7. Despite the absence of a systematic

investigation of these key elements, much can be
derived from a review of the existing record,
especially the videotape of the crime scene
investigation, which is attached as Exhibit 2 to this
Affidavit. The first officers at the scene from the
Bastrop Police Department made no scene report. Lt.
David Campos Jr. from the Bastrop Sheriff's Office,
who arrived at the scene some time (not specified)
after 3:11 p.m. on April 23, 1996, made the recorded
observation in a typewritten report that "The body
had marked lividity and rigor mortis had set in." He
did not specify any muscle groups or the intensity of
the stiffness, which would have indicated whether
the rigor was beginning, reached its peak, or waning.
He did not test the lividity to ascertain if it blanched,
that is, whether the color dissipated with pressure
and did not return, indicating in general that the
body has been in that position for several hours. The
relevant portion of Lt. Campos's report is attached as
Exhibit 3. Texas Ranger L.R. Wardlow, who entered
the scene at 5:43 p.m. made observations about the
position and clothing on the body but nothing about
livor, rigor, or temperature. However, Wardlow
observed a "greenish discoloration" in parts of the
body, including under each breast. The relevant
portion of Ranger Wardlow's report is attached as
Exhibit 4.
8. A time stamp on the video reads 16:19, which
would indicate filming began at 4:19 p.m. However, a
report by Texas Ranger Rocky Wardlow states that
the filming began at 5:16 p.m. The video is not
continuous and ends some time after dark. A time
stamp at the end of the video shows 20:22 (8:22 p.m.)
A note from DPS crime scene investigator Karen
 218a

Blakely to the Medical Examiner's Office discussing

the completed collection of evidence gives the time of
8:15 p.m. A copy of this note is attached as Exhibit 5.
Ranger Wardlow indicates that the scene was
released at 8:55 p.m. The Travis County Medical
Examiner's Office records indicate that the body was
received at 10:00 p.m. Based on this information, it
appears that the video documents the condition of the
body over a 3-4 hour period.
9. Dr. Bayardo, the medical examiner, at the
time of the autopsy at 1:50 p.m. on April 24, 1996
and after the body had been examined at the scene,
transported to the morgue, and refrigerated observed
"slight residual rigor mortis" and "post mortem
dependent lividity." Such observations made many
hours after the body was found and subjected to
movement and stored in a cooler at the morgue are
open to critique and of little relevance to the
determination of the post-mortem interval. In his
trial testimony, Dr. Bayardo, without specifying
anything other than "Based on the changes that
occur after death in the body" opined that "an
estimation of the time of death being around 3:00
a.m. on April 23, 1996," "Give or take one or two
hours", making it between 1:00 and 5:00 a.m. An
excerpt of the relevant portions of Dr. Bayardo's
testimony is attached as Exhibit 6. It is impossible to
evaluate Dr. Bayardo's conclusion because he was not
asked and did not offer the basis for his time of death
estimate. This testimony conformed to the State's
theory of the case that the victim left home for work
around 3:30 a.m. and was murdered between 3:30
a.m. and the time the truck she was driving was seen
in a parking lot in Bastrop at 5:23 a.m. Assuming the
victim left her home in Giddings according to her
 219a

usual schedule at 3:30 a.m. and was abducted 30

miles away in Bastrop as alleged at trial, the post
mortem interval from when the victim was first
described and filmed around 5:15 p.m. would have
been around thirteen (13) hours.
Rigor Mortis
10. If the post mortem interval had been roughly
thirteen hours as estimated by Dr. Bayardo at the
trial, rigor should have been intense and progressing
to completion. The crime scene video contradicts this
finding and indicates a much longer post-mortem
interval. A body in complete rigor (which is generally
achieved at roughly 12 hours under normal
conditions and will be essentially unchanged at 13
hours) is stiff. Manipulation of an arm, a leg, or the
head is difficult and will also result in moving the
torso. The manipulation of the body demonstrated in
the crime scene video, however, indicates that the
limbs can be moved independently, thus indicating
that rigor was no longer at its height and was
passing. For example, a crime scene investigator can
be seen lifting the left arm easily without the left side
of the torso being lifted as it would have been with
completed rigor. See Exhibit 2 at 19:10-19:20. The
arm also flops back down when released. At frame
21:00 of the crime scene video, the left leg is moved
without the body turning as it would have in advance
rigor. In a subsequent frame, 23:26, the examiner
easily turns the head to the left without having to
move the stiff body and then allows the head to easily
roll back to the right. At frame 23:46 to 23:50 of the
video, the head, when moved by investigators,
returns easily to its original position in a manner
that is not consistent with the level of rigor I would
 220a

expect if the victim had been killed at around 4:00

a.m. that morning. When the funeral directors move
the body to a bag, they easily position the arms
across the chest; a manipulation difficult to complete
in a body stiff with complete rigor. This is depicted in
Exhibit 2 at 27:15-27:50. In short, during the
examination of the body between 5:15 p.m. and
around 8:22 p.m. when the crime scene video ends,
the body appears in many instances to be easily
manipulated and at times the arms appear limp
indicating that rigor has waned. Based on the
lessening of rigor demonstrated in the crime scene
video, I estimate that the post mortem interval is
significantly longer than the 13 hours estimated at
trial. The level of rigor demonstrated in the crime
scene video is more consistent with a post-mortem
interval of 16-20 hours from the first documentation
of the body at 5:15 p.m.
11. My estimate of the post-mortem interval takes
into account environmental factors that can affect the
speed at which rigor develops. According to the
National Weather Service, the temperature in the
neighboring city of Elgin ranged from a low of 50 to a
high of 75 degrees Fahrenheit on April 23, 1996.
Although the National Weather Service indicated
sixteen hundredths (.16) of an inch of precipitation on
that day in Elgin, the videotape shows dry conditions
at the crime scene.1 Further, the body appears to be

1 A note written by Karen Blakely to the Medical

Examiner's Office, attached as Exhibit 5, indicates that the
victim's underwear and pants were wet. However, none of the
other evidence such as the victim's bra and socks were described
as wet, and it is common that a deceased person's pants and
(cont’d)
 221a

shaded by small trees and brush. These are normal

conditions, which would not affect the routine
progress of rigor. It is an accepted fact, proven
through my career investigating death in southern
Alabama, that the progress of rigor is accelerated in
hot and humid conditions. Although there is evidence
in the video of post mortem superficial burns on the
left side of the victim's face, the lower portions of the
breasts, the right leg, and the left forearm, the heat
source that caused these superficial burns would not
have been enough to affect temperature of the body
as to accelerate the development and passing of rigor
in the victim. I would expect to see significantly
larger or more severe burns if the victim had come in
contact with a source of heat sufficient to affect the
progress of rigor.
Livor Mortis
12. Another significant factor in my opinion as to
the post-mortem interval is my observation of the
location and level of livor in the body. As discussed
above, livor mortis (or lividity) is the pooling of the
blood to the lowest part of the body, described by
clinicians as a dependant area. Lividity that exceeds
faint patches of discoloration generally develops after
at least 2 hours, and takes several more hours to
become fixed. Lividity is fixed when the blood
congeals in the capillaries or diffuses into the
extravascular tissues. Once lividity is fixed, it will
not be displaced by compression and will not shift if

________________________
(cont’d from previous page)
underwear become wet due to the post-mortem release of urine.
This would not affect the development of rigor.
 222a

the body is moved. If lividity is not fixed, the blood

that has pooled in one area will shift to a new area
once the body has been moved. The figure attached
as Exhibit 7 describes this phenomena with an
approximation of the time required.2 Observation of
lividity is a key tool in determining whether a body
has been moved after death and for how long the
body was in a certain position. Lividity found on a
non-dependant area of a body is evidence that the
body was moved. A photograph from a forensic
pathology text attached as Exhibit 8 shows fixed
lividity in a non-dependent area, which is evidence
that the body had been moved after having been in a
different position for several hours.3
13. Photographs and the crime scene video show
lividity on the back and other dependant areas in the
position in which the victim was found. This lividity
is depicted in the photograph attached as Exhibit 9.
Absent documentation of blanching, however, I
cannot state with precision how long the body was in
the position in which it was discovered other than
that it would take at least 4-6 hours for such
complete lividity to form.

2 Burkhard Madea, Handbook of Forensic Medicine 80,

figure 7.8 (Wiley 2014) (complete shifting of lividity expected if
body turned within 6 hours of death) (Exhibit 7).
3 J. Prahlow, R.W. Bayard, Atlas of Forensic Pathology 153

figure 8.13 ("After several hours, lividity becomes fixed," such

that movement of a body from one position to another may
become evident because the lividity pattern is inappropriate for
the current body position) (Exhibit 8).
 223a

14. There is also lividity in the non-dependent

areas of the victim's right shoulder and right arm.
This lividity can be seen as the red coloration of the
arm and portions of the shoulder in the photos
attached as Exhibit 10. Just as is shown in the
textbook photograph in Exhibit 8, this discoloration
in the victim is identified as lividity based on the
presence of white areas on the fingertips and near
the elbow which show blanching through
compression of the skin at the time the lividity
developed. These blanched areas are circled in
Exhibit 11. Because the lividity remains complete in
the non-dependant areas of the right arm and
shoulder and did not shift to the dependant areas of
the body, this indicates that the victim's body was in
a different position in which the right arm and
shoulder were dependent for at least 4-6 hours.
15. In summary the observable evidence of rigor
mortis and livor mortis discussed above do not
support the conclusion offered at Reed's trial that the
time of death was at 3:00 a.m. on April 23, 1996, even
with a standard of error of two hours. Rather, the
available forensic evidence indicates a post mortem
interval of 16-20 hours from the time the body was
first documented in the video with the body having
been in a different position for a period of 4-6 hours.
Time Since Intercourse
16. At trial, Dr. Bayardo testified that he found
intact sperm in his examination of a sample collected
at autopsy and that the sperm he found was placed in
the victim's vagina "quite recently." I have also
reviewed similar trial testimony by crime scene
investigator Karen Blakely and DNA analyst
Meghan Clement. Ms. Blakely testified that
 224a

spermatozoa will remain intact no longer than 26

hours in the female vaginal tract, and Ms. Clement
testified that an intact spermatozoa would not be
found on a rape kit more than 24 hours after a sexual
encounter.
17. Both Ms. Blakely and Ms. Clement are
incorrect regarding the length of time a
morphologically intact sperm survives in the vagina.
As a forensic pathologist, I am familiar with a host of
medical literature that, simply put, absolutely
refutes those witnesses' conclusions that a sperm
cannot remain intact beyond 24 or 26 hours, and
even refutes Dr. Bayardo's conclusion that the semen
was introduced into the vagina a day or two before
his autopsy exam. Reliable scientific studies, many of
which I understand have been cited by Mr. Reed in
his pleadings in this case, have found
morphologically intact sperm in the human vagina
after two, four, five, six, seven, and even 10 days. As
a general rule, morphologically intact sperm can be
expected to be seen up to 72 hours after intercourse.
No Reliable Evidence of Anal Rape
18. The evidence of forced anal intercourse —
whether pre- or post-mortem — is not conclusive in
this case. Dr. Bayardo testified that he believed that
the victim was raped anally. He based this conclusion
on his testimony that he found lacerations on the
anus, that that anus was dilated, and that he
observed what may have been sperm heads in a
rectal smear. Dr. Bayardo's opinion offered at trial is
not supported by the available evidence.
 225a

19. First, no sperm was actually visualized on the

rectal smears.4 The small amount of sperm which
was detected through DNA testing could have come
from post-mortem cross contamination. The body was
left at the scene on its back and remained in this
position during the crime scene investigation,
transportation to the morgue, and while stored at the
morgue. Especially where the anus was dilated as
depicted in the autopsy photo, sperm could have
leaked from the vagina unto the anus. The videotape
of the scene where the body was recovered also shows
Karen Blakely taking pubic hair tape lifts in a
manner that would transfer semen from the labia to
the rectum. Additionally, the videotape shows that
Ms. Blakely and others at the scene rolled Ms. Stites'
body from its right side over onto its left side. This
rolling was sufficient to cause sperm to be expelled
from the vagina and to leak into the anus. The body
was moved into a body bag, then moved onto a
stretcher and then loaded for transport to the Office
of the Travis County Medical Examiner, where it was
moved to a refrigerated unit and then moved to an
autopsy table. Thus, there were several opportunities
for leakage by the time that Dr. Bayardo took the
rectal swabs. It is also possible that the small
amount of sperm detected by DNA testing was
transferred through an error in collection such as
touching the swab against an external area of the
body that may have had sperm on it.

4 The Medical Examiner's Report submitted by Dr.

Bayardo states, "[rlectal smears are negative for spermatozoa."

 226a

20. Second, the observation of dilation of the anus

at the time of Dr. Bayardo's autopsy does not indicate
anal sexual assault. The anus was not examined at
the time that Ms. Stites' body was recovered. By the
time Dr. Bayardo examined the body at 1:50 p.m. on
April 24, 1996, Ms. Stites had been dead for more
than 36 hours. Rigor mortis would be passing at this
time, as reflected by Dr. Bayardo's observation of
only "slight residual rigor mortis." With passing rigor
mortis, sphincters, including the anus, dilate, and
with manipulation from swabs can expand even
more. The misinterpretation of postmortem dilation
of the anus as sexual assault or sodomy is listed as
one of the most common errors by forensic
pathologists in the forensic pathology text Spitz and
Fisher's Medicolegal Investigation of Death.5
21. Third, it cannot be concluded with any degree
of scientific certainty that Ms. Stites' anus was
lacerated and that those lacerations occurred around
the time of death. The autopsy report describes
"longitudinal linear abrasions." Abrasions are
scrapes which are not necessarily associated with
anal intercourse and can be caused by a hard bowel
movement. Lacerations, by contrast, are tears in the
skin. A trained forensic pathologist should not
confuse these two terms. The photograph taken at
the autopsy does not show breaks in the skin, a sign
of a laceration. Blood would also be expected if the
tear to the anus was sustained while the victim was
alive. By contrast, it is possible that minor abrasions

5 Spitz and Fisher's Medicolegal Investigation of Death at

120.
 227a

would be present that would not be seen on the

photograph. To determine whether these were in fact
lacerations, a microscopic section of this area should
have been performed.
22. Additionally, Dr. Bayardo very clearly stated
in both his testimony and the autopsy report that Ms.
Stites' rectum was "intact and free of injury." The
rectum is the lower 10-15 centimeters of the
gastrointestinal tract. It is highly improbable that
sperm heads could be found in the rectum as a result
of forced anal intercourse without the existence of
some noticeable trauma to the rectum. The fact that
the rectum was intact and free of injury indicates
that no forced anal intercourse occurred.

Further affiant sayeth naught.

/s/ LeRoy Riddick, M.D. .

LeRoy Riddick, M.D.

Sworn and subscribed to before me, this 10 day of

January, 2015.

/s/ Kuptal Swan Stiles .

NOTARY PUBLIC

My commission expires: September 16, 2015.

 228a

Bode Cellmark
FORENSICS
..............................

LabCorp Specialty Testing Group

10430 Furnace Road, Suite 107

Lorton, VA 22079
Phone: 703-646-9740

Forensic DNA/Biology Analysis Testimony

Result of Review
January 11, 2018

To:
Bryce Benjet Cellmark Case #: F9801744
Staff Attorney
Innocence Project
40 Worth Street, Suite 701
New York, NY 10013
List of Documents Evaluated from Innocence
Project received on July 11, 2017:
Transcript for Case F9801744
CONCLUSIONS:
Bode Cellmark has completed its review of the
testimony transcript [and/or stipulation] for the case
referenced above and found it to contain:
Satisfactory Statements
X Unsatisfactory Statements
If Unsatisfactory: Bode Cellmark has completed its
review of the testimony transcript [and/or
stipulation] for the case referenced above and found
it to contain:
 229a

Error Type 1: The DNA Analyst stated an

inclusion associated with a specific individual to the
exclusion of all others when 1) source attribution
threshold was not met (applicable only to cases
reported before September 19, 2015) or 2) after Bode
Cellmark discontinued the practice of applying
source attribution (September 19, 2015).
Error Type 2: The DNA Analyst provided an
incorrect statistical value during testimony or
incorrectly explained the meaning of the statistical
value(s).
X Error Type 3: The DNA/Forensic Biology Analyst
cites the number of cases and/or samples worked in
the lab as a predictive value to bolster the conclusion
that the DNA profile belongs to a specific individual
or the DNA/Forensic Biology Analyst otherwise
testifies beyond the scope of his/her expertise.
See enclosed Testimony Review Evaluation Form.
Report submitted by,

Stephane Sivak, MS
Technical Leader
Page 1 of 1
 230a

Correction Review Evaluation Form

Case Information:
Case Number: F9801744
Defendant(s): Rodney Reed
Date of Review: 11/22/2017

Review of Testimony:
Date of Testimony: 5/11/1998
Testifying Analyst: Meghan Clement
Name of Prosecutor Mr. Charles Penick, Mr.
Forrest Sanderson, & Ms. Lisa
Tanner
Name of Defense: Mr. Calvin Garvie & Ms. Lydia
Clay-Jackson
Testimony Results (mark as appropriate):
Unsatisfactory Statements: Yes X . No .
If testimony contained Unsatisfactory Statements,
cite each by Error type, page(s), and line number(s):
Page 55, lines 13-21 With spermatozoa, the tails are
very fragile and tend to break
off, so after a short period of
time they start losing their
tails and then what you find is
only the spermatozoa heads,
from sexual assault cases. So
that can be an indicator of how
long the spermatozoa has been
in a particular place before it is
actually collected and detected.
 231a

In serology work, typically,

sexual assault kits weren't
Page 56, lines 8-16 even collected more than 24
hours after an encounter
because the chances of finding
sperm is so rare. Generally,
finding intact sperm at more
than probably about 20 hours,
20 to 24 hours, I don't ever
recall finding intact sperm
more than that, from the time
of the sexual assault and from
the time the collection was
made.
Page 56, line 18,
after asked to
clarify above
response: "And that Yes.
was in over
thousands of rape
kits?"

Approved By: Date: 1/11/2018

Document: Correction Review Evaluation Form

Revision: 1
Effective: 1/3/2018 4:22:11 PM
Issuing Authority: Quality Assurance Manager
 232a

TEXAS DEPARTMENT OF PUBLIC SAFETY

5805 N LAMAR BLVD • BOX 4087 •
AUSTIN, TEXAS 78773-0001
512/424-2000
www.dps.texas.gov

STEVEN C. McCRAW
COMMISSION
DIRECTOR
STEVEN P. MACH, CHAIRMAN
DAVID G. BAKER
MANNY FLORES
ROBERT J. BODISCH, SR.
A. CYNTHIA LEON
SKYLOR HEARN
DEPUTY DIRECTORS JASON K. PULLIAM
RANDY WATSON

April 30, 2018

Bryce Benjet
Senior Staff Attorney
Innocence Project
40 Worth Street, Suite 701
New York, NY 10013

Dear Mr. Benjet:

I have reviewed your correspondence entitled

"Request for Correction, L-246937" dated July 11,
2017. I do not believe that Ms. Blakely's testimony
constitutes professional negligence or professional
misconduct and thus do not see a basis for the Crime
Lab to report this matter to the Texas Forensic
Science Commission pursuant to Article 38.01, Sec. 4,
Texas Code of Criminal Procedure. The issues raised
in your letter have been extensively litigated in this
 233a

case. We do not see a duty to correct in this matter;

however, during our review of the testimony by Ms.
Blakely we noted some potential limitations in the
paper she cited during testimony: Spermatozoa —
Their Persistence After Sexual Intercourse, GM
Willott and JE Allard, Forensic Science
International, 19 (1982) pp 135-154.
The Willott paper cited by Ms. Blakely during her
testimony concerned a study that was undertaken to
determine the amount of time spermatozoa could
remain in the body after intercourse. Data for this
study was collected from living victims and relied on
the victim to correctly estimate the time since the
offense (intercourse) occurred. The paper
acknowledged that reliance on the victim to estimate
the time since the offense occurred was a potential
limitation to the research. The paper also included a
table comparing the results of similar studies. In this
table, a study by Davies and Wilson was referenced
that reported 72 hours as the longest time for intact
spermatozoa to be found in the vagina. The Davies
and Wilson study, in contrast to the Willott study,
relied on laboratory volunteers to collect samples at
pre-established time points. The difference in
collection method is a possible explanation for the
difference in result. As seen in the table in the
Willott paper, the literature varied greatly in the
time given for finding spermatozoa (intact and
otherwise) in the female reproductive tract.
Your letter indicates that you have sent your Request
for Correction to the Texas Forensic Science
Commission. We would fully cooperate with the
Commission or the Courts regarding any hearings or
reviews they may choose to conduct.
 234a

Sincerely,

Brady W. Mills
Assistant Division Director
Crime Laboratory Service
Law Enforcement Service Division

Cc: Lynn Garcia, Texas Forensic Science

Commission

BWM:cg
 235a

IN THE
COURT OF CRIMINAL APPEALS OF TEXAS AND
THE 21ST JUDICIAL DISTRICT COURT
BASTROP COUNTY, TEXAS

EX PARTE § Writ Cause No.

§ WR-50,961-08
RODNEY REED, §
§ Trial Cause No. 8701
Applicant. §

SUPPLEMENTAL APPLICATION FOR

WRIT OF HABEAS CORPUS

THIS IS A DEATH PENALTY CASE

BRYCE BENJET ANDREW F. MACRAE

State Bar No. 24006829 State Bar No. 00784510
THE INNOCENCE LEVATINO|PACE PLLC
PROJECT 1101 S. Capital of Texas
40 Worth St., Suite 701 Highway
New York, NY 10013 Building K, Suite 125
(212) 364-5340 Austin, Texas 78746
(212) 364-5341 (fax) (512) 637-8563
(512) 637-1583 (fax)

MICHELLE L. DAVIS MORRIS L.

State Bar No. 24038854 OVERSTREET
SKADDEN, ARPS, State Bar No. 00000046
SLATE, MEAGHER & P.O. Box 35
FLOM, LLP Prairie View, Texas 77446
725 N Avalon Street (713) 225-2016
 236a

Granbury, Texas 76048 (713) 225-2010 (fax)

(972) 523-8718

Attorneys for Applicant Rodney Reed

 237a

Applicant Rodney Reed files this supplemental

application for writ of habeas corpus pursuant to
articles 11.071 and 11.073 of the Texas Code of
Criminal Procedure because the scientific expert
opinions relied on by the State to convict Mr. Reed of
capital murder were false when given and have since
been changed. The false and repudiated expert
testimony offered by the State is both material and
establishes Mr. Reed’s innocence.
Mr. Reed was convicted because his DNA was
linked by expert testimony to a purported sexual
assault that the State claimed was contemporaneous
with Ms. Stites’s murder. See Reed v. State, No. AP
73, 135, *9 (Tex. Crim. App. December 6, 2000). The
Texas Department of Public Safety (who employed
the State’s expert Karen Blakely), the Bode Cellmark
Forensics Laboratory (who employed the State’s
retained expert Meghan Clement), and the State’s
forensic pathologist Dr. Roberto Bayardo, have all
now acknowledged that the scientific opinions offered
by the State to tie Mr. Reed to the murder were in
error. See Exhibit 1 (Letter from DPS Crime Lab
Director Brady Mills “DPS Correction letter”); 2
(Letter from LabCorp Technical Leader Stephanie
Sivak “LabCorp Correction Letter”); 2A (Affidavit of
LabCorp Serologist Purnima Bokka); 3 (Declaration
of Roberto Bayardo, M.D. “Baryardo Dec.”). Because
these erroneous expert testimonies were central to
the State’s case against Mr. Reed, he is entitled to
relief pursuant to Articles 11.071 and 11.073 of the
Code of Criminal Procedure.1 In light of these new

1 This Application is filed as a supplement to Mr. Reed’s

pending habeas corpus proceedings and incorporates the factual
(cont'd)
 238a

expert opinions, which must be viewed in conjunction

with other evidence implicating Mr. Fennell in the
murder and corroborating a relationship between Mr.
Reed and Ms. Stites, this Court should also find Mr.
Reed actually innocent under the Elizondo and
Schlup innocence standards.

A. The State Relied on Testimony From

Three Experts Regarding the Presence of
Intact Spermatozoa in a Body to Convict
Mr. Reed.

Mr. Reed was convicted based on the State’s

theory that he abducted, sexually assaulted, and
murdered Stacey Stites at around 3:30 a.m. on April
23, 1996. See Reed v. State, No. AP 73, 135 (Tex.
Crim. App. December 6, 2000). This theory was
based primarily on the presence of a few of Mr.
Reed’s intact spermatozoa on samples taken from
Ms. Stites’s body. The State relied on three experts,
who told the jury that the intact sperm was evidence
of recent intercourse—occurring not more than 26
hours before her death. These expert opinions
supported the State’s theory of a sexual-assault
murder and ruled out Mr. Reed’s defense that he and
Ms. Stites were involved and had consensual
intercourse in the days before the murder.

________________________
(cont'd from previous page)
allegations presented in Mr. Reed’s prior applications. Because
the Court is currently considering other pending habeas claims,
a lengthy recitation of the facts is unnecessary in this pleading.
 239a

1. DPS Serologist Karen Blakley

Texas Department of Public Safety (“DPS”)

criminalist and serologist, Karen Blakley collected
vaginal swabs during her examination of Ms. Stites’s
body at the crime scene on the evening of April 23,
1996. TT Vol. 44:123. She took these samples back to
the DPS Crime Lab that night, created slides from
the swabs, and examined them under a microscope.
See id. at 131-32. Ms. Blakely testified that she
found “several sperm heads and then several sperm
that had tails on it as well.” Id. at 132.
On direct examination by the State, Ms. Blakely
explained that the presence of these several intact
spermatozoa “indicated to us that sexual intercourse
had been fairly recent.” Id. at 134. Later in her
direct examination, Ms. Blakely was more specific as
to the significance of her observation of intact
spermatozoa:
Q. You indicated that in your opinion the fact
that you saw three intact sperm on the
slides indicated that the sexual activity had to
have been quite recent?

A. Yes.

Q. And you saw them when?

A. I saw them about 11:30 - - 11:00 or 11:30

that night.

Q. And at the point that you saw the three

intact sperms, had the swab that it had
 240a

been on had it been air dried or had it been

refrigerated to stop the deterioration?

A. No.

***
Q. Okay. Based on your knowledge and your
training and experience, how long of a time
frame are we talking about that you would
expect a sperm to be able to stay intact?
A. I have published documentation that
says that 26 hours is the outside
length of time that tails will remain
on a sperm head inside the vaginal
tract of a female.
TT Vol. 45:16 (emphasis added). On cross
examination, Ms. Blakley identified the published
documentation she relied on as an article from 1981
by “Willot and Allard.” TT Vol. 45:17.
Indeed, Ms. Blakley’s flawed opinion regarding
the presence of intact spermatozoa formed the basis
of the entire investigation that ultimately targeted
Mr. Reed. Ms. Blakely immediately reported her
opinion regarding the intact spermatozoa to the lead
homicide investigator, Texas Ranger Rocky Wardlow.
See Ex parte Reed, 271 S.W.3d 698, 705 (Tex. Crim.
App. 2008). And based on Ms. Blakeley’s report,
Wardlow viewed the presence of semen as a “smoking
gun,” “surmising that the evidence of sexual assault
gave the perpetrator motive to kill.” Id.
 241a

2. Labcorp Serologist Meghan Clement

Ms. Blakley’s expert opinion was bolstered by

another expert serologist retained by the State,
Meghan Clement of the Labcorp DNA laboratory.
Ms. Clement testified on direct examination by the
State that the tails of spermatozoa break off “after a
short period of time” and that she had never seen
intact sperm more than 24 hours after intercourse:
Q. And I also wanted to ask you, before doing
DNA analysis you indicated that you did a
great deal of work in serology?
A. Yes.
Q. And about how many years did you do?
A. I performed serology analysis for
approximately ten and a half years.
Q. And in the course of that, can you tell us,
did you have the opportunity to examine
evidence in various types of sexual assault
cases?
A. Oh, yes.
Q. Give me an approximation. When you say,
“oh, yes,” tell me what you mean.
A. Probably about seventy-five percent of our
case work is sexual assault case work.
Hundreds, if not thousands of sexual
assault cases.
Q. And when you look at sexual assault kits
through your employment, did you have
the opportunity to look at swabs and slides
 242a

and things like that to determine whether

or not spermatozoa was actually present?
A. Yes.
Q. And would that be on as many occasions?
A. Yes, absolutely.
Q. Thousands of times?
A. Yes.
Q. Okay. And when you’re doing that sort of
analysis, when you’re looking at that
microscopically, are you trying to
determine whether spermatozoa, number
one, are present; and, number two, whether
they’re intact or broken up?
A. Yes.
Q. What is the significance of whether
spermatozoa are intact or whether they’re
broken up?
A. Generally the longer spermatozoa is – the
longer amount of time of it being deposited
to it being detected the more likely it’s not
going to be intact. With spermatozoa, the
tails are very fragile and tend to break off,
so after a short period of time they start
losing their tails and then what you find is
only the spermatozoa heads, from sexual
assault cases.
Q. And in thousands of rape kits that you
have looked at, when a vaginal swab is
taken in the traditional way that it’s taken,
what’s the longest time that you ever
personally saw a lapse between a sexual
 243a

encounter and in finding a fully intact

spermatozoa?
***
A. In serology work, typically, sexual assault
kits weren’t even collected more than 24
hours after an encounter because the
chances of finding sperm is so rare.
Generally, finding intact sperm at
more than probably about 20 hours, 20
to 24 hours, I don’t ever recall finding
intact sperm more than that, from the
time of the sexual assault and from the
time the collection was made.
Q. And that was in over thousands of rape
kits?
A. Yes.
TT Vol. 51:53-56 (emphasis added).

3. Travis County Medical Examiner

Roberto Bayardo, M.D.

The State also relied on the medical expert

opinion of Travis County Medical Examiner Roberto
Bayardo, M.D., to corroborate the expert opinions
offered by the State’s serologists Ms. Blakley and Ms.
Clement. Dr. Bayado testified that, as part of his
autopsy conducted on April 24, 1996, he collected
vaginal swabs, created slides, and examined them for
sperm. TT Vol. 48:120-21. Dr. Bayardo testified that
he found intact spermatozoa on the vaginal slides
and that this indicated recent intercourse:
Q. . . . did you take vaginal swabs from the
young lady’s body?
 244a

A. Yes, I did so.

Q. How many swabs did you take?
A. I took two.
Q. And what steps did you take in taking
those swabs? I mean, what is the
procedure?
A. I get the cotton tipped swabs and open the
vulva and introduce the swabs into the
vagina as deep as they can go and then try
to pick up whatever might be there. After
that I get the swabs and I get glass slides
and swipe the swabs on the slides.
Q. And did you do that with the vaginal swabs
in this case?
A. Yes, I did so.
Q. And did you look at those slides under the
microscope?
A. Yes, and then I stained them with special
dye, that stains the cells, whatever micro-
organs might be there, and then I look
under the microscope.
Q. And what did you see under the microscope
in this case when you looked at the vaginal
swabs?
A. I found the presence of spermatozoa with
heads and tails.
Q. What is the significance of the fact – well,
let me back up and ask you this. Is there a
difference between seeing semen and
seeing spermatozoa?
 245a

A. Yes, you can have semen with seminal fluid

but without spermatozoa.
Q. Does spermatozoa break down more
quickly than just semen?
A. Say that again.
Q. Let me re-ask it, I didn’t ask that very well.
Biological samples over time break down,
do they not?
A. That’s correct, yes.
Q. And, typically, semen includes
spermatozoa, right?
A. Correct.
Q. And do the spermatozoa break down over a
period of time?
A. That’s correct, yes.
Q. What is the significance of having found,
intact, spermatozoa in this case?
A. That tells me that this semen was placed in
the vagina quite recently.
TT Vol. 48:120-23.

4. The State Emphasized the False

Expert Testimony Regarding Intact
Spermatozoa in Closing Argument
and the Judge Read the False
Testimony Back to the Jury During
Deliberations.

In addition to the lengthy direct examination of

its three expert witnesses on the topic, the State re-
emphasized this testimony in closing argument:
 246a

[DPS analyst Karen Blakely] took the vaginal

swabs, and what did she find? At eleven
o’clock that night she goes back to the lab, she
puts them under the microscope and bingo,
she finds three fully intact spermatozoa. At
that point she knows what she’s got here. We
all know what she’s got here. Because we
know, from the credible evidence, that that
doesn’t hang around for days on end. We
know from the credible evidence that that tells
you that that semen got in that girl’s body
within 24 hours of that eleven o’clock moment.
Which is when? On her way to work.
TT Vol. 56:33-34; see also TT Vol. 56:139 (“Semen, on
the other hand, can be dated. And semen,
specifically spermatozoa, only stays there about 24
hours.”); TT Vol. 56:140 (“Spermatozoa and semen is
not something that hangs around for days on end.”).
These expert opinions were emphasized once
more during the jury’s deliberation. After several
hours in the jury room, the jury sent out a note
asking about Dr. Bayardo’s testimony, including a
question about his opinion on the life expectancy of
intact sperm.2 TT Vol. 56: 154. The Court
responded by reading several portions of Dr.
Bayardo’s testimony to the jury, which included his
opinion that the presence of intact spermatozoa
meant that the intercourse took place “a day or two”
before Dr. Bayardo’s April 24, 1996 examination—

2 Although the jury note asked specifically about sperm in

the anal cavity, the answer provided dealt with Dr. Bayado’s
examination of intact sperm on the vaginal slides. See TT vol
56 :160
 247a

within 24 hours of Dr. Bayardo’s 3:30 a.m. estimate

of Ms. Stites’s time of death. TT Vol 56: 160.

5. This Court Emphasized the False

Expert Testimony Regarding Intact
Spermatozoa in its Direct Appeal
Opinion.

In reciting the facts in support of its analysis of

the sufficiency of the evidence on direct appeal, this
Court observed that “intact” spermatozoa was found
by both Karen Blakley and Dr. Bayardo. Reed, No.
AP 73,135 at 4-5. The Court emphasized the specific
expert testimony of DPS serologist Blakley and
LabCorp serologist Clement at issue in this
Application:
Intact sperm indicated to Blakley that they
had been deposited very recently. Her
testimony was later corroborated by Meghan
Clement of LabCorp, who testified that in ten
and a half years of serology work, she had
never seen spermatozoa remain intact for
more than 24 hours after a sexual assault.
Id. at 4 n.5. This Court likewise credited Dr.
Bayardo’s expert opinion on the matter, explaining
that “Dr. Bayardo took an additional set of vaginal
swabs and found intact spermatozoa, indicating
recent deposit.” Id. at 4-5. The testimony of the
State’s experts was the sole basis of this Court’s
decision upholding the sufficiency of the evidence:
Giving the strength of the DNA evidence
connecting appellant to the sexual assault on
Stites and the forensic evidence indicating
that the person who sexually assaulted Stites
 248a

was the person who killed her, a reasonable

jury could find that the appellant is guilty of
the offense of capital murder.
Id. at 9.

B. The Testimony of all Three Experts

Regarding the Persistence of Intact
Spermatozoa Has Now Been Repudiated.

All of the testimony cited above regarding the

persistence of intact spermatozoa has now been
repudiated. Each of the states’ experts, or their
employing agencies, have recognized that this
testimony on the persistence of intact spermatozoa
was false.

1. DPS Crime Lab Director Brady

Mills Has Repudiated DPS
Serologist Karen Blakley’s
Testimony.

On April 30, 2018, DPS Crime Lab Director Brady

Mills sent a letter to undersigned counsel
acknowledging “limitations” affecting Karen
Blakley’s testimony. Exhibit 1 (DPS Correction
Letter). Ms. Blakley testified at Mr. Reed’s trial that
her observation of intact spermatozoa from vaginal
swabs meant that the sperm must have been left by
Mr. Reed within 26 hours of collection. TT Vol.
45:16. She cited a paper by Willott and Allard as
“published documentation that 26 hours is the
outside length of time that tails will remain on a
sperm head inside the vaginal tract of a female.” TT
Vol. 45:17. Director Mills, however, explains that the
 249a

paper cited by Ms. Blakley does not actually support

the opinion she offered:
The paper acknowledged that reliance on the
victim to estimate the time since the offense
occurred was a potential limitation to the
research. The paper also included a table
comparing the results of similar studies.
In this table, a study by Davies and
Wilson was referenced that reported 72
hours as the longest time for intact
spermatozoa to be found in the vagina. . . .
As seen in the table in the Willott paper, the
literature varied greatly in the time given for
finding spermatozoa (intact and otherwise) in
the female reproductive tract.
Exhibit 1 (emphasis added).
An examination of the Willott and Allard paper
confirms Director Brady’s statement. Although the
paper provides “26 hours” as the longest time intact
spermatozoa was seen in that particular study, the
full paragraph reporting this data also notes:
The numbers examined are quite small for the
longer times after intercourse, so that,
although they provide a very useful guide,
they may not represent the longest time
spermatozoa can persist.
Exhibit 4 at 137 (Willott and Allard paper) (emphasis
added). The paper further explains that “[p]revious
reports on the persistence of spermatozoa in the
vagina show considerable variation”. Id. As noted by
Director Mills, the paper references a study by
Davies and Wilson of 730 vaginal swab samples
 250a

which reported finding intact spermatozoa “up to 72

hours” after intercourse. Id. at 143.
Ms. Blakeley twice testified at Mr. Reed’s trial —
based on the 1981 Willott and Allard article—that 26
hours was the “outside length of time” that intact
sperm can persist in the vaginal tract. TT Vol. 45:16-
17. However, she failed to mention either the
article’s express warning that this data “may not
represent the longest time spermatozoa can persist”
or that the article cited other reputable studies in
which intact sperm were found up to 72 hours after
intercourse. See Exhibit 4 at 137, 143.
Director Mills’s acknowledgement of the
“limitations” affecting Ms. Blakley’s testimony
constitutes an admission that her testimony was
invalid, misleading, and false. Contrary to Ms.
Blakley’s testimony that the Willott and Allard study
supported her conclusion, Director Mills now admits
that the Willard and Allard paper actually states the
opposite: (1) its data regarding longer times after
intercourse (26 hours) was not a reliable measure of
the persistence of intact spermatozoa and (2) more
reliable studies demonstrated “72 hours as the
longest time for intact spermatozoa to be found in the
vagina.” Exhibit 1 (DPS Correction Letter). This is a
direct repudiation of Ms. Blakley’s trial testimony.3

3 Karen Blakely no longer works for DPS, is no longer

working as a forensic scientist, and has declined to cooperate

with this proceeding.
 251a

2. LabCorp Has Repudiated Serologist

Meghan Clement’s Testimony

The opinion offered by the State’s retained

serology expert Meghan Clement’s has also been
repudiated by her laboratory. Ms. Clement testified
at Mr. Reed’s trial that, based on her examination of
thousands of rape kits, over the course of ten and a
half years, she had never seen intact spermatozoa
persist for longer than 20-24 hours. TT 51:53-56.
Just as with Ms. Blakley, Ms. Clement’s testimony,
left a clear and false impression on the jury that
intact spermatozoa does not persist in the vaginal
tract for more than 24 hours. Moreover, Ms.
Clement’s citation to her examination of “thousands”
of rape kits added an unsupported level of certainty
to her opinion.
On January 11, 2018 Bode Cellmark Forensics (a
subsidiary of LabCorp)4 Technical Leader Stephanie
Sivak issued a letter which described Ms. Clement’s
testimony cited above as “unsatisfactory” and as an
“error”. Exhibit 2 (LabCorp Correction Letter).
Specifically, Technical Leader Sivak characterized
the error in Ms. Clement’s testimony as follows:
Error Type 2: The DNA/Forensic Biology
Analyst cites the number of cases and/or
samples worked in the lab as a predictive
value to bolster the conclusion that the DNA
profile belongs to a specific individual or . . .

4 Bode Cellmark Forensics is a subsidiary of Labcorp which,

until recently, employed Ms. Clement.

 252a

otherwise testifies beyond the scope of his/her

experience.”
Exhibit 2. An attached worksheet identified the
specific testimony which the laboratory deemed in
error:

Exhibit 2 at 2. Moreover, LabCorp forensic serologist

Purnima Bokka has confirmed that intact sperm may
be found in the vaginal cavity up to 72 to 144 hours
after intercourse. See Exhibit 2A (Affidavit of
Punima Bokka, M.S.). Through Technical Leader
Sivak’s letter and Serologist Bokka’s affidavit,
LabCorp has directly repudiated Ms. Clement’s
testimony that (1) suggested that intact spermatozoa
are not found 24 hours after intercourse and (2) cited
 253a

her experience in examining “thousands” of rape kits

to bolster her erroneous statement.5

3. Roberto Bayardo, M.D. Has

Changed His Opinion

Dr. Bayardo’s expert opinion has also changed.

Where Dr. Bayardo testified at trial that his
observation of intact spermatozoa indicated that
intercourse was “quite recent” to her death, his
subsequent declaration conforms with the opinions
offered by DPS Crime Lab Director Brady Mills and
LabCorp Technical Leader Stephanie Sivak:
Accordingly in my professional opinion, the
spermatozoa I found in Stites’s vaginal cavity
could have been deposited days before her
death. Further, the fact that I found “very few”
(as stated in the autopsy report) spermatozoa
in Ms. Stites’s vaginal cavity suggests that the
spermatozoa was not deposited less than
24 hours before Ms. Stites’s death.
Exhibit 3 (Declaration of Roberto Bayardo, M.D.)
(emphasis added). Dr. Bayardo’s current opinion
directly contradicts his and the serologists’ testimony
that was elicited by the State at trial. Instead of 24-
26 hours being the outside length of time an expert

5 Ms. Clement has repeatedly declined to cooperate with

this proceeding. LabCorp agreed to address Ms. Clement’s

erroneous testimony only after Ms. Clement left the company.
Now working as a consultant, Ms. Clement recently declined
undersigned counsel’s request to retain her to review her
testimony and the applicable serology literature. A hearing is
required to obtain her testimony.
 254a

would expect to have found intact spermatozoa, Dr.

Bayardo now states that intercourse was more than
24 hours prior to Ms. Stites’s death. See Exhibit 3.

C. It is Reasonably Likely That False,

Misleading, and Scientifically Invalid
Expert Testimony Influenced Mr. Reed’s
Trial in Violation of His Due Process
Rights.

The standard for due process claims based on

false, misleading, or scientifically unreliable
testimony is as follows:
The Due Process Clause of the Fourteenth
Amendment can be violated when the State
uses false testimony to obtain a conviction,
regardless of whether it does so knowingly or
unknowingly. Accordingly, to constitute a due
process violation, the testimony used by the
State must have been false, and it must have
been material to the defendant's conviction,
meaning there is a reasonable likelihood that
the false testimony could have affected the
judgment of the jury.
Ex parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim.
App. 2011). Furthermore, “[t]estimony need not be
perjured to constitute a due-process violation; rather,
‘it is sufficient that the testimony was false,’” Chavez,
371 S.W.3d at 208, (quoting Robbins), and “it is
sufficient if the witness' testimony gives the trier of
fact a false impression.” Ex parte Ghahremani, 332
S.W.3d 470, 477 (Tex. Crim. App. 2011).
 255a

Additional guidance on the determination of

materiality in false-testimony claims is found in Ex
parte Weinstein:
The second prong in a false-testimony claim is
materiality, not harm. Only the use of
material false testimony amounts to a due-
process violation. And false testimony is
material only if there is a “reasonable
likelihood” that it affected the judgment of the
jury. Thus, an applicant who proves, by a
preponderance of the evidence, a due-process
violation stemming from a use of material
false testimony necessarily proves harm
because a false statement is material only if
there is a reasonable likelihood that the false
testimony affected the judgment of the jury.
The applicant must still prove his habeas-
corpus claim by a preponderance of the
evidence, but in doing so, he must prove that
the false testimony was material and thus it
was reasonably likely to influence the
judgment of the jury.
421 S.W.3d 656, 665 (Tex. Crim. App. 2014).
This Court has repeatedly applied its false
testimony/due process jurisprudence to reverse a
conviction or sentence when a jury was misled
because an expert espoused an unreliable scientific
theory or other factors rendered the expert's
testimony unreliable. See, e.g., Ex parte Tiede, 448
S.W.3d 456 (Tex. Crim. App. 2014); Ex parte Graf,
AP-77003, 2013 WL 1232197 (March 27, 2013)
(expert testimony deemed false where critical aspects
of the testimony repudiated); Ex parte Henderson,
384 S.W.3d 833, 835 (Tex. Crim. App. 2012) (Price, J.
 256a

concurring) (due process violated where critical part

of expert's testimony was “highly questionable”); id.
at 849-50 (Cochran, J. concurring) (due process
violated where expert opinion on critical disputed
issue found unreliable).
This Court’s consideration of scientifically invalid
testimony as a due process violation is consistent
with the holding of at least one other state as well as
the policy of the United States Department of
Justice. The Arkansas Supreme Court recently
considered the repudiation of similarly false
testimony offered by an FBI agent concerning
microscopic hair comparison. see Strawhacker v.
State, 500 S.W.3d 716, 720 (Ark. 2016). Faced with
an admission by the Department of Justice that the
testimony offered by an FBI microscopic hair
comparison expert contained errors and “exceeded
the limits of science,” the Arkansas Supreme Court
reinvested jurisdiction in the trial court to consider
the extraordinary remedy of a writ of error coram
nobis. See id. The Arkansas Supreme Court noted
that its decision was grounded in due process. See
id. at 719.
The Arkansas Supreme Court’s decision in
Strawhacker adopted the official position of the
Department of Justice that the interests of justice
require the courts to afford a remedy where a
government expert has testified in a manner that
was erroneous or exceeded the limits of reliable
science. See id. at 718 (“The Department said it
would waive any statute-of-limitations or procedural
default defenses . . .”). In a 2015 letter regarding its
review of the erroneous testimony by FBI hair
comparison experts, the Department of Justice
 257a

further expressed its policy that “the erroneous

statements should be treated as false evidence and
that knowledge of the false evidence should be
imputed on the prosecution.”
Exhibit 5 (DOJ letter). These principles are not
unique to the field of microscopic hair comparison,
and the false serology testimony offered at Mr. Reed’s
trial should receive similar scrutiny.

1. False, Misleading, and Invalid

Testimony Regarding Persistence
of Spermatozoa.

As detailed above, the State presented three

expert witnesses who testified erroneously as to the
relevance of finding intact spermatozoa on the
vaginal swabs taken from Ms. Stites’s body. DPS
Serologist Karen Blakley testified that her finding
“three intact sperms” showed that the spermatozoa
could not have been more than 26 hours old at the
time of her observation. TT 45:16. Ms. Blakley cited
a specific article by Willott and Allard in support of
this opinion. However, this expert testimony has
been repudiated by DPS Crime Lab Director Brady
Mills, who points out that (1) there are “limitations”
to Willott and Allard’s data on the persistence of
intact spermatozoa study and (2) the cited article by
Willott and Allard discusses another study in which
intact spermatozoa were found up to 72 hours after
intercourse. Exhibit 1 (DPS Correction Letter).
In a similar fashion, LabCorp serologist
Meghan Clement’s testimony— that she had not seen
intact sperm more than 24 hours after intercourse on
any of the thousands of rape kits she examined—has
 258a

been repudiated by LabCorp Technical Leader

Stephane Sivak and Serologist Purnima Bokka.
Technical Leader Sivak explains that Ms. Clement’s
testimony both exceeded the scope of her expertise
and improperly cited her past experience to bolster
the weight of her expert conclusions. See Exhibit 2
(LabCorp Correction Letter). LabCorp Serologist
Bokka confirms that intact spermatozoa can be found
in the vaginal cavity for at least up to 72 hours. See
Exhibit 2A.
And finally, Dr. Roberto Bayardo has changed
his expert medical opinion as to the finding of intact
spermatozoa. Where he claimed at trial that his
observation of intact spermatozoa indicated recent
intercourse, he has now stated in a sworn declaration
that his finding “very few” of Mr. Reed’s intact
spermatozoa indicates that Mr. Reed and Ms. Stites
had intercourse more than 24 hours before her death.
See Exhibit 3 (Declaration of Roberto Bayardo, M.D.).
This change constitutes an admission that Dr.
Bayardo’s trial testimony was false, misleading and
in error.
When an expert opinion offered by a witness
has been shown to be factually incorrect or invalid,
the expert’s testimony constitutes “false testimony”
for the purposes of finding a due process violation.
For example, in Ex parte Graf, this Court found a
violation of due process in an arson/murder case
where “critical aspects of expert testimony
concerning the cause of the fire have since been
disproven.” No. AP-77,003, 2013 WL 1232197, *1
(Tex. Crim. App. 2013). In Ex parte Tiede, a
psychiatrist retained by the State testified that the
defendant had an “unremarkable mental health
 259a

history” and that there was no evidence to support

the defense theory that the murder was committed
during a dissociative episode. 448 S.W.3d 456, 458
(Tex. Crim. App. 2014) (Alcala, J., concurring). This
Court held that the psychiatrist’s opinion offered at
trial constituted false testimony where the
psychiatrist later learned that the defendant had a
history of childhood sexual abuse, which he now
believes supports the defense diagnosis at trial. See
id. at 456; 460 (Alcala, J., concurring). The good or
bad faith of the witness in offering her erroneous
expert opinion is irrelevant to the constitutional
question. See Chavez, 371 S.w.3d. at 208.
Mr. Reed’s case is no different from those cited
above. The State elicited testimony from DPS
serologist Blakley, LabCorp serologist Clement, and
forensic pathologist Dr. Bayardo during which all
three erroneously told the jury that Mr. Reed’s intact
spermatozoa could not have persisted in Ms. Stites’s
body for more than 24 or 26 hours. These experts (or
their sponsoring laboratories) have now disavowed
the testimony, acknowledging the opinions as invalid
and in error. Instead, these experts now agree that
intact sperm may be observed on vaginal swabs up to
72 hours or more after intercourse—three times as
long as Mr. Reed’s jury was told at trial. In fact, Dr.
Bayardo now agrees with Mr. Reed’s habeas experts
that his finding only “very few” spermatozoa
indicates that the intercourse between Mr. Reed and
Ms. Stites was likely more than 24 hours before her
death.
 260a

2. The False Testimony Regarding the

Persistence of Intact Spermatozoa
is Material.

It is uncontested that Mr. Reed’s DNA was

present on samples taken from Ms. Stites’s body.
Mr. Reed argued at trial that he and Ms. Stites were
romantically involved which explained the presence
of his biology. The State disputed Mr. Reed’s claim
and relied on the expert opinions of Ms. Blakley, Ms.
Clement, and Dr. Bayardo in arguing that Mr. Reed
raped Ms. Stites contemporaneous with the murder.
See TT 56:143 (prosecutor argues that Ms. Stites
would not have consented to sex with Mr. Reed,
“particularly at the time of her death”).
The expert opinions that Mr. Reed’s intact
spermatozoa could not persist for more than 24-26
hours was crucial to the State’s case. Ms. Stites’s
whereabouts were generally accounted for during
this 24 hour period, rendering Mr. Reed’s defense
that his biology was left during consensual sex
impossible. This is why the prosecutor repeatedly
referenced its experts’ opinions in closing argument:
We know from the credible evidence that that
tells you that that semen got in that girl’s body
within 24 hours of that eleven o’clock moment.
Which is when? On her way to work.
So Karen [Blakley] tells us that, and then we
know Stacey goes to Dr. Bayardo. Dr. Bayardo
does the same thing. He looks at the swabs
and what does he find? He finds intact
spermatozoa, same thing, and he tells you
what the significance of that is.
 261a

TT Vol.56:33-34; see also TT Vol. 56:139 (“Semen, on

the other hand, can be dated. And semen,
specifically spermatozoa, only stays there about 24
hours.”); TT Vol. 56:140 (“Spermatozoa and semen is
not something that hangs around for days on end.”).
The importance of the repudiated expert testimony is
also shown by the fact that it was the subject of a
question in a note sent by the jury, and Dr. Bayardo’s
testimony on the matter was read back to the jury.
See TT Vol. 56:160 (Dr. Bayardo’s testified that
finding a few spermatozoa with heads and tails
indicated intercourse a day or two before his April
24, 1996 autopsy—within 24 hours of April 23, 1996).
Moreover, this Court’s analysis on direct
appeal of the sufficiency of the evidence against Mr.
Reed focused exclusively on the State’s expert
testimony now shown to be false. See Reed, No. AP
73,135 at 4-5. The Court’s opinion affirming Mr.
Reed’s conviction recites the invalid opinions of all
three experts that the presence of intact spermatozoa
indicated recent intercourse. See id. The direct
appeal opinion even bolsters the weight of LabCorp
serologist Clement’s testimony by citing her
experience—an error specifically identified by
LabCorp Technical Leader Sivak. Compare id. at
4n.5 with Exhibit 2 (LabCorp Correction Letter).
The State’s false expert testimony connecting
Mr. Reed’s sperm to a sexual assault and murder was
(1) emphasized in closing argument, (2) read back to
the jury during deliberations, and (3) the only
evidence cited by the Court on direct appeal in
affirming the sufficiency of the evidence. Because
the false expert testimony of Ms. Blakley, Ms.
Clement, and Dr. Bayardo implicated Mr. Reed in
 262a

the murder and directly contradicted Mr. Reed’s

defense, there is a reasonable probability that the
false expert testimony influenced the judgment of the
jury. See Ex parte Tiede, 448 S.W.3d at 461 (Alcala,
J., concurring) (false expert testimony contradicting
defense mitigation theory was material); Ex parte
Weinstein, 421 S.W.3d at 665.

3. The Materiality of the False Expert

Testimony Must be Considered
Cumulatively With the False and
Suppressed Evidence Relating to
Jimmy Fennell’s April 23, 1996
Conversation With Curtis Davis.

Although the false expert testimony of serologists

Blakley and Clement and Dr. Bayardo is material
standing alone, this Court must also consider the
false expert testimony cumulatively with the false
trial testimony of Jimmy Fennell and/or the
suppressed and inconsistent account of his
whereabouts on the night of the murder. See,
generally, Ex parte Reed, No. WR 50,961-08.
Currently before the Court are Mr. Reed’s due
process claims relating to statements made by
Jimmy Fennell to his best friend, Bastrop Sheriff’s
Officer Curtis Davis, about Fennell’s whereabouts
and activities on the night of April 22, 1996—the
night that the reliable forensic evidence indicates
Ms. Stites was murdered. See generally Applicant’s
Memorandum and Objections to Findings of Fact and
Conclusions of Law, Ex parte Reed, No. WR 50,961-
08 (filed on March 9, 2018) (“Memorandum and
Objections”). At a 2017 hearing, Curtis Davis
testified that Fennell told him that Fennell had been
 263a

out drinking with other police officers on the night of

April 22, 1996 and that he did not get home until
late, after Ms. Stites was supposed to be asleep. See
id. at 8-10. This account, provided by Fennell to his
best friend, is irreconcilable with this Fennell’s trial
testimony that he and Ms. Stites spent the evening
together in their apartment. When called at a
habeas hearing to explain this discrepancy, Fennell
declined to testify and asserted his Fifth Amendment
rights against self-incrimination, further supporting
the conclusion that Fennell perjured himself at trial
and is actually responsible for the murder of Ms.
Stites. See id. at 38-39; Coffey v. State, 796 S.W.2d
175, 178 (Tex. Crim. App. 1990) (permissible to
consider invocation of 5th Amendment Rights when
improperly asserted).
This Court and the United States Supreme
Court have held that, when considering due process
claims under Brady v. Maryland and its progeny, all
exculpatory evidence must be considered collectively
and not item-by-item. See Kyles v. Whitley, 514 U.S.
at 436; Ex parte Miles, 359 S.W.3d at 665. Evidence
that Fennell’s trial testimony was false, when
combined with evidence of the invalidity of the
State’s experts’ opinions, greatly undermines support
for the verdict. The impact of Fennell’s false
testimony cannot be discounted by citing a forensic
link between Mr. Reed’s semen and the crime. Nor
can the harm from the State’s invalid expert
testimony be mollified by the credibility of Fennell’s
account of the nature of his relationship with Stites
and her whereabouts at the time of the murder.
Compare Ex parte Reed, 271 S.W.3d at 749 (citing
Ms. Stites’s “life circumstances” in refuting
consensual affair). Because both the scientific and
 264a

circumstantial aspects of the State’s case have been

shown to be false, Mr. Reed’s conviction must be
reversed.

D. The Court Should Order A New Trial

Pursuant to Article 11.073 of the Code of
Criminal Procedure.

Article 11.073 of the Code of Criminal Procedure

provides for a new trial where there is (1) newly
available scientific evidence that (2) “contradicts
scientific evidence relied on by the state at trial” and
(3) that the applicant would probably not have been
convicted if the newly available scientific evidence
has been presented at trial. Tex. Code Crim. Proc.
art. 11.073 (a)(2); Ex parte Robbins, 478 S.W.3d 678,
690 (Tex. Crim. App. 2014). In Ex parte Robbins,
this Court held that scientific evidence is considered
“newly available” where the opinion of the State’s
expert had changed since trial. 478 S.W.3d at 690.
A claim for relief brought pursuant to article 11.073
should be remanded for a hearing where the facts
alleged “are at least minimally sufficient to bring
him within the ambit” of the statute. Id. Mr. Reed’s
claims under article 11.073 fit within this holding in
Ex parte Robbins.

1. Newly Available Expert Opinions

Contradict the Scientific Evidence
Relied on by the State to Convict.

First, the opinions of all three of the State’s

experts who provided testimony supporting the
State’s theory of a sexual assault by Reed
contemporaneous with the murder have been
changed:
 265a

• Texas Department of Public Safety Lab

Director Brady Mills has identified
“limitations” in the opinion of former DPS
Serologist Karen Blakley, correcting her
testimony that 26 hours is the “outside length
of time” that Mr. Reed’s spermatozoa could
have remained intact in Ms. Stites’s vaginal
tract. Rather, he confirms the established
literature that intact spermatozoa may be
found up to 72 hours after intercourse. See
Exhibit 1 (DPS Correction Letter.
• LabCorp Technical Leader Stephanie Sivak
has identified “errors” in former LabCorp
Serologist Meghan Clement’s trial testimony
which implied that intact spermatozoa cannot
be found on rape kits more than 24 hours after
intercourse. LabCorp explained that Clement
erroneously testified outside her expertise and
cited the number of rape kits she had
examined in a misleading fashion to bolster
her erroneous opinion. See Exhibit 2 (LabCorp
Correction Letter). In fact, it is the expert
opinion of LabCorp Serologist Purnima Bokka
that studies have shown intact spermatozoa to
be found in the vaginal cavity up to 72-144
hours after intercourse. See Exhibit 2A.
• Dr. Roberto Bayardo has changed his opinion
that the presence of Mr. Reed’s intact
spermatozoa was evidence that intercourse
was “fairly recent” and within “a day or two” of
his April 24, 1996 autopsy. He now states that
“the fact that I found “very few” (as stated in
the autopsy report) spermatozoa in Ms.
Stites’s vaginal cavity suggests that the
 266a

spermatozoa was not deposited less than 24

hours before Ms. Stites’s death.” Exhibit 3
(Declaration of Roberto Bayardo, M.D.).6
Under this Court’s holding in Ex parte Robbins,
these changed opinions by the State’s experts
constitute newly available scientific evidence. See
478 S.W.3d at 690.7

2. Mr. Reed Would Probably Not Have

Been Convicted if these Changed
Expert Opinions Had Been
Presented at Trial.

The sufficiency of the State’s evidence against

Mr. Reed is based on a connection between his
semen, a claimed sexual assault, and the murder.
See Reed v. State, No. 73, 135 at 9. The State
repeatedly emphasized the expert testimony linking
Mr. Reed’s sperm with a sexual assault in their
closing argument. see supra Part A(4). The Judge
specifically, read back Dr. Bayardo’s testimony on
the matter to the jury during their deliberations. see
id. The importance of this false expert testimony at
trial cannot be downplayed. With the recantation of

6 Dr. Bayardo has also changed his opinion regarding his

estimate of the time of death as well as the connection between
the presence of Mr. Reed’s DNA and an anal sexual assault of
Ms. Stites. See Exhibit 3.
7 The changed scientific opinions of DPS, Labcorp, and Dr.

Bayardo are not novel or unreliable and would be equally

admissible as the original testimony relied on by the State.
Therefore, this newly available evidence meets the
requirements of article 11.073(b)(1)(B) of the Code of Criminal
Procedure.
 267a

Dr. Bayardo and the changes to the testimony of

Serologists Karen Blakley and Meghan Clement, this
central component of the State’s evidence has
evaporated.
The changed scientific opinions would have
presented the jury with a very different set of facts.
Instead of three consistent experts claiming that the
presence of intact spermatozoa meant that Mr. Reed
must have raped Ms. Stites contemporaneous to her
murder, the jury would have been told the opposite.
Dr. Bayardo would have testified that the evidence
suggests consensual intercourse between Mr. Reed
and Ms. Stites more than 24 hours before her death:
in my professional opinion, the spermatozoa I
found in Ms. Stites’s vaginal cavity could have
been deposited days before her death.
Further, the fact that I found “very few”
(as stated in the autopsy report)
spermatozoa in Ms. Stites’s vaginal cavity
suggests that the spermatozoa was not
deposited less than 24 hours before Ms.
Stites’s death.
Exhibit 3 (emphasis added). The DPS Serologist
would have confirmed Dr. Bayardo’s opinion,
verifying that only three intact spermatozoa were
found and that intact spermatozoa can persist for up
to three days. See Exhibit 1 (DPS Correction Letter).
And the LabCorp serologist would likewise not have
improperly bolstered these erroneous opinions with
her own experience, and instead would have noted
that intact spermatozoa may be found 72-144 hours
after intercourse. See Exhibit 2 (LabCorp Correction
Letter): Exhibit 2A (Affidavit of Purinima Bokka,
M.S.)
 268a

If the jury had been told—without

contradiction—that Mr. Reed’s sperm was likely from
intercourse more than a day before Ms. Stites was
murdered, the connection between the sex and the
murder upon which the sufficiency of the evidence
depended would have been broken, and it is unlikely
that a rational jury would have convicted Mr. Reed. 8

8 Any connection between Mr. Reed’s semen and an anal

assault has likewise been discounted by Dr. Bayardo’s changed
opinion. Dr. Bayado testified at trial that he saw sperm heads
on the rectal sample taken from Ms. Stites at autopsy. He has
now retracted this opinion stating:
Had the prosecuting attorney advised me that they
intended to present my testimony as evidence that
spermatozoa was found in the rectal cavity, I could have
informed them that was incorrect. . . . Had I been asked
at trial if spermatozoa and/or seminal fluid had been
found in Ms. Stites’s rectal cavity, I would have said
that it had not, consistent with the autopsy report.
Exhibit 3. Dr. Bayardo has also contradicted his trial
testimony regarding observed injury in Ms. Stites’s anus. See
Exhibit 3 at 6 (“I found on autopsy that Ms. Stites was sexually
assaulted, and testified consistently at trial. However, the
presence of spermatozoa in Ms. Stites vaginal cavity was not
evidence of sexual assault. . . . Also, because there was no
spermatozoa found in Ms. Stites’s rectal cavity, there is no
evidence that any spermatozoa was deposited in the rectal
cavity as a result of the sexual assault”).
Further, the presence of low levels of Mr. Reed’s DNA in
rectal samples does not discount this changed opinion because
the DNA results are consistent with drainage from the vaginal
cavity as Ms. Stites’s body lay on her back. Because the
sphincter relaxes and then stands open post-mortem, there is
ample opportunity for bodily fluids to migrate into the rectum.
See Exhibit 6 at ¶9 (Baden Aff.); Exhibit 7 at ¶8 (Spitz Aff.); 8 at
¶¶18-19 (Riddick Aff.). For example, in Pitts v. State, evidence
of “a few sperm” in a sample from a male murder victim’s anal
(cont'd)
 269a

In fact, the presence of Mr. Reed’s spermatozoa from

intercourse more than a day before Ms. Stites’s death
would be powerful evidence corroborating Mr. Reed’s
account of an affair and providing motive for Jimmy
Fennell to murder his fiancé. See Reed v. Thayler,
2012 WL 2254217, *14 n.8.9
At this stage, the question before the Court is
whether the facts alleged in this application “are at
least minimally sufficient to bring him within the
ambit” of the statute. See Ex parte Robbins, 478
S.W.3d at 690. Mr. Reed need not show that the
changed scientific opinions render the evidence
insufficient to convict. Instead, the standard is
whether, “on a preponderance of the evidence” a
reasonable jury would find reasonable doubt. See
Tex. Code Crim. Proc. art 11.073 §(b)(2).
Mr. Reed has shown that all of the State’s
scientific evidence linking Mr. Reed’s DNA to a
________________________
(cont'd from previous page)
cavity was discounted as contamination from “postmortem
ejaculation.” 273 Ark. 220, 226-27 (1981). In a later case,
Stephens v. State, 234 S.W.3d 748, 773 (Tex. App.—Fort Worth
2007, no pet.), Dr. Bayardo’s opinions about anal dilation as
evidence of a sexual assault were attacked as unreliable by the
same assistant attorney general who vouched for Dr. Bayardo’s
opinions in Mr. Reed’s prosecution. See id.
9 In his 2012 recommendation, Magistrate Judge Austin

cited the absence of evidence of a consensual affair in

discounting Mr. Reed’s claims. See Reed v. Thayler, 2012
224517 at 14. Since that time additional, disinterested
witnesses have come forward with knowledge of the affair
including two co-workers and Ms. Stites’s cousin. See Exhibit 9
(Affidavit of Alicia Slater); Exhibit 10 (Affidavit of Leroy
Ybarra), Exhibit 11 (Affidavit of Buddy Horton).
 270a

sexual assault contemporaneous with Ms. Stites’s

murder has changed. The State’s witnesses have all
recanted their testimony that Mr. Reed’s intact
spermatozoa could not persist more than 26 hours
after intercourse, and Dr. Bayardo (consistent with
Mr. Reed’s uncontradicted experts)10 now states that
the evidence suggests Mr. Reed and Ms. Stites had
sex more than 24 hours before her death. See
Exhibit 3. Because the jury’s decision centered on
whether the assailant was Mr. Reed or the victim’s
fiancé Jimmy Fennell who had motive, was sole
witness to Ms. Stites’s whereabouts, and invoked the
Fifth to avoid questioning in the case, Mr. Reed has
alleged facts that are “at least minimally sufficient to
bring him within the ambit” of article 11.073.11

10 Exhibit 6 (Affidavit of Michael Baden, M.D.); Exhibit 7

(Affidavit of Werner Spitz, M.D.); Exhibit 8 (Affidavit of Leroy
Riddick, M.D.)
11 Judge Alcala’s concurring and dissenting opinion on Mr.

Reed’s prior habeas application implied that his false testimony

and article 11.073 claims were dismissed based on an earlier
federal finding that Dr. Bayardo was not credible. See Ex parte
Reed, 2017 WL 2131826 at *4 n3. However, the federal judge
who rejected Dr. Bayardo’s declaration on procedural grounds
did not have the benefit of (1) the new scientific evidence
invalidating the testimony of the remaining State’s experts,
Blakley and Clement and (2) the new and corroborative
opinions of Drs. Spitz, Baden, and Riddick. See Exhibits 1, 2, 6,
7, and 8. This additional evidence changes the credibility
determination before this Court.
 271a

E. Mr. Reed’s Claims Satisfy Article

11.071 §5.

Mr. Reed’s claims satisfy the requirements of

article 11.071 § 5 because their factual basis could
not have been discovered with the exercise of
reasonable diligence. See Tex. Code Crim. Proc. art
11.071 § 5(a)(1). This Court has already held that,
where a State’s expert changes her scientific opinion,
the evidence is “not ascertainable through the
exercise of reasonable diligence.” See Ex Parte
Robbins, 478 S.W.3d at 692 (changed scientific
opinion meets article 11.073§(b)(1)(A)). Moreover,
this Court has generally acknowledged that a
defendant is entitled to rely on the truthfulness of
the State’s witnesses. Where a witness later recants
her testimony, reasonable diligence is exercised even
though there may have been reason to question the
credibility of that witness. See Ex Parte Harleston,
431 S.W.3d 67, 87 (Tex. Crim. App. 2014) (citing Ex
parte Tuley, 109 S.W.3d 388, 403 (Tex. Crim. App.
2002) (Price, J., concurring in denial of rehearing)
(“The fact that there was some evidence at the time
of the applicant's trial that could have been used to
impeach the complainant, does not mean that her
affidavit recanting her trial testimony is not new
evidence…”)).
The State presented the expert testimony of
Travis County Medical Examiner Dr. Bayardo12 as

Dr. Bayardo’s declaration was presented in a prior habeas

12

application. However, the unavailability of the additional

evidence from the Texas Department of Public Safety and
LabCorp rendered it impossible for the Court to consider the
(cont'd)
 272a

well as serologists from DPS and LabCorp. Mr. Reed

had no reason to believe that these witnesses would
change their testimony, and as a matter of law, the
subsequent Declaration of Dr. Bayardo and the
letters from DPS and LabCorp that are the subject of
Mr. Reed’s claims were not ascertainable through the
exercise of reasonable diligence. See Ex parte
Harleston, 431 S.W.3d at 87; Ex parte Tulley, 109
S.W.3d at 403. And for the same reasons discussed
supra Part C, the false testimony of the State’s
experts is a constitutional violation that is material
such that there is proof by a preponderance of the
evidence that Mr. Reed would not have been
convicted but for the violation of his Due Process
rights. See Tex. Code Crim. Proc. art. 11.071 §
5(a)(2). Accordingly, Mr. Reed’s claims presented in
this Application may be considered pursuant to
section 5 of article 11.071 of the Code of Criminal
Procedure.

F. Mr. Reed is Actually Innocent.

The State’s case against Mr. Reed stands on two

pillars: (1) putative scientific evidence connecting Mr.
Reed’s semen with a sexual assault contemporaneous
with the murder and (2) evidence about Ms. Stites’s
“life circumstances” which was inconsistent with the
idea she was having an affair with Mr. Reed.
Because the new scientific evidence presented in this
Application, when viewed in conjunction with the
evidence in prior habeas proceeding, has toppled both
________________________
(cont'd from previous page)
full impact of the false testimony and new scientific evidence at
that time.
 273a

of these pillars, this Court should find that Mr. Reed

meets the actual innocence standard under both
Elizondo and article 11.071 §5(a)(2).

1. Legal Standard

Both Texas and federal constitutional law

prohibit the conviction and/or punishment of persons
who are innocent. See Ex parte Elizondo, 947 S.W.2d
202 (Tex. Crim. App. 1996).13 Under Elizondo, the
court reviewing an innocence claim must examine
the new evidence in light of the evidence presented at
trial. Ex parte Thompson, 153 S.W.3d 416, 417 (Tex.
Crim. App. 2005). “In order to grant relief, the
reviewing court must believe that no rational juror
would have convicted the applicant in light of the
newly discovered evidence.” Id. at 417. This must be
shown by clear and convincing evidence. See Ex
parte Elizondo, 947 S.W.2d at 209. The Court of
Criminal Appeals described this weighing of evidence
as follows:
Because, in evaluating a habeas claim that
newly discovered or available evidence proves
the applicant to be innocent of the crime for
which he was convicted, our task is to assess
the probable impact of the newly available
evidence upon the persuasiveness of the
State's case as a whole, we must necessarily

13 Mr. Reed does not concede that Elizondo correctly sets

forth the federal constitutional standard. Instead, Due Process

prevents the conviction of persons who are probably innocent.
See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).
However, the evidence presented in this application meets any
applicable standard.
 274a

weigh such exculpatory evidence against the

evidence of guilt adduced at trial.
Id. However, the Court in Elizondo was careful to
emphasize that this standard was something less
than a legal sufficiency review. 947 S.W.2d at 207.
No presumptions should be applied to the evidence
either in favor or against the verdict:
the court charged with deciding such a claim
should make a case-by-case determination
about the reliability of the newly discovered
evidence under the circumstances. The court
then should weigh the evidence in favor of the
prisoner against the evidence of his guilt.
Obviously, the stronger the evidence of the
prisoner's guilt, the more persuasive the newly
discovered evidence must be.
Id.
Article 11.071 §5(a)(2) adopts the U.S. Supreme
Court’s “gateway” actual innocence standard as set
forth in Schlup v. Delo. See Ex parte Reed, 271
S.W.3d 698, 733 (Tex. Crim. App. 2008). A habeas
applicant is actually innocent under this standard
where the Court finds that it is more likely than not
that a reasonable jury would not have found the
defendant guilty beyond a reasonable doubt. See id.

2. The New Evidence Presented in Mr.

Reed’s Habeas Applications
Demonstrates His Innocence.

The evidence presented in this Application, and in

Mr. Reed’s prior habeas proceedings contradicts both
the State’s scientific evidence of guilt as well as the
contention that Ms. Stites’s “life circumstances” were
 275a

inconsistent with a secret affair with Mr. Reed.

Because these central aspects of the State’s evidence
against Mr. Reed has now been contradicted, he has
established his innocence as defined under Elizondo
and article 11.071 §5(a)(2).
a. The State’s scientific evidence
has been disproven.

As reflected in this Court’s opinion on direct

appeal, the sufficiency of the evidence in Mr. Reed’s
case turned on the reliability of the State’s scientific
evidence that linked Mr. Reed’s semen to a sexual
assault contemporaneous with the murder. See Reed
v. State, No. AP 73,135 at 9. This evidence has been
retracted by the experts who offered the opinions and
is recognized as scientifically invalid and false. Dr.
Bayardo has provided a sworn declaration indicating
that there is no scientific evidence that Mr. Reed
sexually assaulted Ms. Stites, and that the evidence
actually indicates that Mr. Reed and Ms. Stites had
vaginal intercourse over 24 hours before her death.
See Exhibit 3. The opinions of DPS serologist Karen
Blakeley and LabCorp serologist Meghan Clement
have likewise been repudiated by their laboratories.
See Exhibits 1 (DPS Correction Letter); 2 (LabCorp
Correction Letter); 2A (Affidavit of Purnima Bokka,
M.S.).
Moreover, three of the most experienced and
renown forensic pathologists in the United States all
agree that (1) there is no reliable scientific evidence
linking Mr. Reed’s semen to a sexual assault and (2)
that the forensic and medical evidence demonstrates
that Ms. Stites was killed sometime before midnight
on April 22, 1996 and that her body was moved to the
 276a

place where it was found several hours after her

death. See Exhibits 6, 7, 8.
The forensic experts rely primarily on three key
elements in determining the post-mortem interval:
livor mortis (pink to red discoloration of the skin due
to blood settling in the vessels and later seeping into
the skin), rigor mortis (stiffening of the muscles due
to chemical alterations in the cells), and signs of
decomposition. See Spitz and Fisher, Medicolegal
Investigation of Death 94 (4th Ed. 2006) (livor, rigor,
and decomposition included in most common
protocols used in postmortem timing). None of these
factors were discussed in relation to the postmortem
interval at Mr. Reed’s trial.

i. Patterns of Postmortem
Lividity Indicate that the
Body was Moved 4-6 Hours
After Death

Lividity seen on Ms. Stites’s right shoulder, arm,

and part of her face shows that Ms. Stites was left in
a position in which these areas were lower
(dependent) for at least 4 hours prior to the body
being left in the position it was found. Exhibit 7, ¶¶2-
3 (Spitz Aff.); Exhibit 6,¶6 (Baden Rpt.); Exhibit 8,
¶12-14 (Riddick Aff.). Lividity is the pooling of blood
to the lowest part of the body or dependent area.
Once lividity is fixed it will not move with
compression or shifting of the body. See Exhibit 8, ¶
12(Riddick Aff.). Ms. Stites showed lividity on her
right arm, right shoulder and chest, and the side of
her face—areas that are not dependent in the
position she was found. All three defense experts
 277a

explain the relevance of this non-dependent lividity

concurrent with Dr. Spitz:
The presence of lividity in these non-
dependent areas makes it medically and
scientifically impossible that Stites was
killed between 3- 5 a.m. on the date in
question. Stites could not have been both
murdered and dumped between the hours of 3-
5 a.m. on April 23, 1996 and remained
undisturbed in that spot until her body was
discovered at around 3 p.m. because the
lividity observed in the non-dependent areas
would have taken at least 4-5 hours to
develop. It is impossible that Stites was
murdered and left at the scene in the two-hour
time frame asserted by the State at trial.
Exhibit 7,¶3(Spitz Aff.)(emphasis added); see also
Exhibit 6,¶6 (Baden Aff.) (“Lividity develops by
gravitational settling of bloods cells while still in the
lower dependent portions of the body . . . This lividity
demonstrates that Ms. Stites was dead before
midnight on April 22nd when she was alone with Mr.
Fennel”).

ii. Rigor Mortis Indicates a

Longer Post-Mortem Interval

Drs. Spitz and Riddick also focus on the level of

rigor mortis seen in the crime scene video, which
shows a longer post-mortem interval. Dr. Riddick
explains :
If the post mortem interval had been roughly
thirteen hours as estimated by Dr. Bayardo at
the trial, rigor should have been intense and
 278a

progressing to completion. The crime scene

video contradicts this finding and indicates a
much longer post-mortem interval. A body in
complete rigor (which is generally achieved at
roughly 12 hours under normal conditions and
will be essentially unchanged at 13 hours) is
stiff. Manipulation of an arm, a leg, or the
head is difficult and will also result in moving
the torso. The manipulation of the body
demonstrated in the crime scene video,
however, indicates that the limbs can be
moved independently, thus indicating that
rigor was no longer at its height and was
passing. . . . Based on the lessening of rigor
demonstrated in the crime scene video, I
estimate that the post mortem interval is
significantly longer than the 13 hours
estimated at trial. The level of rigor
demonstrated in the crime scene video is more
consistent with a post-mortem interval of 16-
20 hours from the first documentation of the
body at 5:15 p.m. My estimate of the post-
mortem interval takes into account
environmental factors that can affect the
speed at which rigor develops. . . . Further, the
body appears to be shaded by small trees and
brush. These are normal conditions, which
would not affect the routine progress of rigor.
Exhibit 8,¶ 10-11 (Riddick Aff.); see also Exhibit
7,¶4-5 (Spitz Aff.) (explaining that the manipulation
of the body in the crime scene video demonstrates
“passing” rigor consistent with a longer post-mortem
interval).
 279a

iii. Evidence of Decomposition

Demonstrates a Longer
Postmortem Interval and
Shows that Ms. Stites was
Moved in the Truck Several
Hours After Her Death
Dr. Spitz points out evidence of decomposition
that is inconsistent with the time of death advanced
by the State at trial:
My review shows evidence of decomposition
that is not consistent with a time of death at 3
a.m. on April 23, 1996. …Brown fluid running
from the mouth and nose, across the right
cheek is decomposition fluid and is not
described in the autopsy report. Internal
organs also show evidence of decomposition-
what Dr. Bayardo describes as congestion in
lungs is actually decomposition. The heart is
flabby and the blood is liquid after liquefaction
which is part of the decomposition process.
Brain swelling is also part of decomposition.
This amount of decomposition supports a post-
mortem interval of about 20 to 24 hours before
the film and photographs.
Exhibit 7, ¶ 7 (Spitz Aff.)
The viscous fluid found on the passenger-side
floor board was not pulmonary edema fluid as
identified by the prosecution but more typical of post-
mortem purge fluid. Purge fluid takes more than four
hours to develop and could not of been present in less
than 2-1/2 hours if Ms. Stites was alive at 3:00 am.
These finding show that she had been dead several
 280a

hours before midnight. See Exhibit 6, ¶ 7(Baden

RPT.).
iv. The State’s Evidence that
Reed’s Sperm was Associated
with a Sexual Assault is
False.
The State’s forensic experts, or their sponsoring
agencies, have retracted their original testimonies in
Mr. Reed’s case as incorrect. See Exhibits 1, 2 and 3.
Drs. Spitz, Baden, and Riddick all confirm that there
is no evidence of a vaginal or anal sexual assault.
These experts concur in disputing the faulty timeline
derived from the retracted and erroneous testimony
provided by the states experts. Dr. Spitz explains:
Very few sperm were found on autopsy
smears, and the crime scene investigator
found only 3 intact spermatozoa. If the victim
was sexually assaulted between 3-5 a.m., there
would be more sperm found on slides. A
normal sperm count is considered to be 15
million spermatozoa per milliliter. The amount
of sperm found on the slides is more consistent
with a longer interval between intercourse and
the time the sample was collected. As I explain
in my book, intact spermatozoa can be found
in the vagina up to 72 hours after coitus.
Exhibit 7,¶ 6 (Spitz Aff.); see also Exhibit 6, ¶ 8
(Baden RPT.); see also Exhibit 8, ¶ 17 (Riddick Aff.).
The Doctors also rebut the State’s evidence of
anal rape:
The distended anus seen in photos and
described at autopsy is normal, in
 281a

consideration of the absence of rigidity. It is a

common mistake for death investigators to
misinterpret natural relaxation of the
sphincter, as evidence of anal penetration.
There are no apparent lacerations in the
photographs of the anus. If lacerations were
present, they would be visible. Abrasions
described at autopsy are not evidence of anal
assault, and are equally consistent with hard
bowel movements. I am aware that there
was a weak DNA result consistent with
Rodney Reed on the sperm fraction of the
rectal swab taken from Stites. The presence of
a small amount of sperm in the rectum is not
surprising and does not contradict my
conclusion that there is no evidence of anal
penetration in this case. When semen is
present in a body, it can drain from the vagina
into the dilated anus. I have seen this happen
in a number of cases. Contamination of the
rectal swab by vaginal contents is also a
concern, especially in cases where vaginal
swabs are collected prior to the taking of the
rectal specimens.
Exhibit 7,¶8 (Spitz Aff.). see also Exhibit 5,¶18-21
(Riddick Aff. )(Dr. Riddick provides a more detailed
description for why the evidence of anal rape is
lacking); see also Exhibit 6, ¶9 (Baden Rpt.) (dilation
of anus normal and no evidence on photographs of
lacerations).
Dr. Michael Baden, M.D., testified at Mr. Reed’s
October 2017 habeas hearing on these issues, and his
testimony was neither meaningfully impeached nor
 282a

contradicted by the State. See Reporter’s Record Vol.

3:9-122, Ex parte Reed, No. WR-50,961-08.
With the benefit of this new scientific evidence,
other evidence suggesting and supported the State’s
theory of a sexual assault by Mr. Reed falls away.
For example, the Court focused on Ms. Stites’s
broken zipper and bunched underwear as suggesting
a sexual assault. However, this could have occurred
just as easily as Fennell carried Ms. Stites’s body
from their apartment to his truck and then to the
crime scene.14

14 The state of dress of the body is not consistent with a

sexual-assault murder. It is unlikely that a stranger who
abducted, raped, and murdered Mr. Stites would take the
trouble of re-dressing her lifeless body in her jeans, underwear
and brassier. Retired New York Police Department Homicide
Detective Sergeant Kevin Gannon has also pointed out certain
aspects of the crime scene which appear staged:
Certain aspects of the crime scene appear to have been
staged in a manner that does not conform to a
kidnapping/murder by a stranger. First, the placement
of Stacey's name tag between her legs is direct evidence
of a staged crime scene. The location of the two halves
of Stacey's belt also does not comport with a kidnapping
murder by a stranger seeking to evade detection. It is
unlikely if not impossible that Stacey's woven leather
belt broke while it was used as a ligature. The force
necessary to break a leather belt would have caused
greater injury to her neck than was reported at autopsy.
It is far more likely in my opinion that the belt was
separated after the murder. One half of the belt was
left at the side of the road in a position pointing towards
the body. Especially where it was alleged that the
murderer used the victim's shirt to wipe fingerprints
from the truck at the scene, it is not plausible that the
same person would have left the belt in this location
(cont'd)
 283a

b. New Evidence Contradicting

the State’s “Life
Circumstances” Argument.

The second pillar of the State’s case against was

the racially charged contention that the “life
circumstances” of Ms. Stites, a young white woman
engaged to a local police officer, made it implausible
that she would have been romantically involved with
a young black man like Mr. Reed. The evidence
before the Court today, however, corroborates Mr.
Reed’s assertion that he was having an affair with
Ms. Stites directly and implicates Fennell in the
murder.
i. Credible Evidence of the
Affair Between Mr. Reed
and Ms. Stites.
First and foremost, there is now credible evidence
from witnesses who have no connection to Mr. Reed,
that Mr. Reed and Ms. Stites were seeing each other.
Alicia Slaughter, a coworker at the HEB, states in a
sworn affidavit that Ms. States confided in her about
the affair:
On one occasion when Ms. Stites and I were
eating together in the break room, she talked
________________________
(cont'd from previous page)
unless he wanted the body to be quickly found. The
same is true for the portion of the belt left outside the
truck at the Bastrop High School. A murderer who had
the forethought to wipe his fingerprints and lock the
door of the truck would not leave such obvious evidence
in plain view accidentally.
Exhibit 12, ¶9 (Gannon Aff.)
 284a

to me about her relationship with her

boyfriend. She was talking about her
engagement ring and that she was not excited
about getting married. She told me that she
was sleeping with a black guy named Rodney
and that she didn’t know what her fiancé
would do if he found out. She commented that
she had to be careful.
Exhibit 9 ¶ 4 (Slater Aff.). Another co-worker at the
HEB, Leroy Ybarra, recalls seeing Mr. Reed and Ms.
Stites interact at the HEB and also noticed Ms.
Stites avoiding her fiancé Fennell. See Exhibit 10.
Based on his direct observation during the numerous
occasions he saw Mr. Reed and Ms. Stites together,
Mr. Ybarra confirms they had an intimate, positive
relationship. He noticed her “demeanor would
change” when Mr. Reed came around and she was
“happy to see him and would be in a good mood.” Id.
at ¶3. The nature of Mr. Reed’s and Ms. Stites’s
encounters were happy and romantic. See id.
Ms. Stites’s behavior around her fiancé stands in
stark contrast. Mr. Ybarra observes:
I knew Ms. Stites was engaged to a police
officer at the same time she was seeing [Mr.
Reed], and I recall that the few times that
Stacey’s fiancé entered the store to visit her,
she would become a nervous wreck. I know
that there were times Ms. Stites would
deliberately hide so that she didn’t have to
talk to him. I just thought it was a strange
relationship.
Ex. 10 ¶5 (Ybarra Aff.).
 285a

Ms. Stites’ own cousin, Calvin Buddy Horton, also

recounts seeing Ms. Stites and Mr. Reed together in
the months before Ms. Stites’s murder:
As I pulled into the Dairy Queen in the Ford
pickup I was driving at the time, with my
children inside, I remember seeing Stacey
coming out of the Dairy Queen with a black
man. I hollered her name to get her attention
as I drove in, but she did not respond. I know
they heard me because both Stacey and the
black man looked directly at me, but neither
came toward me. I have a rather loud voice; I
easily project and rarely have a difficult time
being heard.
Seeing Stacey with a black man did not
surprise me because I remembered what my
parents told me about her dating and
associating with black men. Stacey, however,
was shocked; she seemed embarrassed when
she saw us and she quickly left with the black
man without introducing me. Stacey and the
black man got into a darker colored car that
Stacey was driving, and they drove off without
speaking to me or my children. I told my
father of this incident, but to me it was not a
big deal at the time because I had been told
that Stacey associated with black men.
Exhibit 11, ¶¶ 6-7 (Horton Aff.). After Ms. Stites’s
death, Mr. Horton saw pictures of Mr. Reed in the
media and identified Mr. Reed as the man
accompanying Ms. Stites at the Dairy Queen in 1995:
Sometime after Stacey’s death I remember
seeing pictures of Rodney Reed on the news
 286a

and in the newspaper after he became a

suspect in the death of my cousin. Rodney
Reed is the same man I saw with Stacey at the
Dairy Queen in 1995. I understand that the
appeals courts have previously said that there
were no credible witnesses that would testify
as to having seen Rodney and Stacey together.
I would have testified to my experience at the
Dairy Queen in 1995 at trial, but no one ever
approached me to do so. Since then, I have told
other members of my family and would have
told law enforcement and prosecutors the
same had they interviewed me.
Exhibit 11 ¶ 8.
ii. Evidence Implicating Fennell
Much of the State’s “life circumstances” evidence
came from Fennell. Fennell had been a prime
suspect in Ms. Stites’s murder, was aggressively
interrogated, and failed two polygraph examinations
as to whether he committed the murder. Fennell
testified that he and Ms. Stites were happy together
and accounted for both Ms. Stites’s work routine and
her whereabouts leading up to the murder. Fennell’s
credibility was very important to the State’s case.
But new evidence, available today, raises far more
than the “healthy suspicion” identified by this Court
in 2008. See Ex parte Reed, 271 S.W.3d at 747. Most
important is a newly discovered inconsistent
statement made by Fennell to his best friend,
Bastrop Sheriff’s Officer Curtis Davis, about his
whereabouts on the night of April 22, 1996.
Although Fennell testified at Mr. Reed’s trial that he
and Ms. Stites spent a quiet evening at home on
April 22, 1996, Fennell told Officer Davis a very
 287a

different story about the events of that evening.

Officer Davis testified at an October 2017 hearing
that he spoke to Fennell during the day on April 23,
1996, soon before Ms. Stites’s body was discovered.
In that conversation, Fennell claimed that he had
been out drinking with other officers on the night of
April 22, 1996 and that he did not come home until
late at night so as not to disturb Ms. Stites’s sleep.
See Memorandum and Objections at 8-10. Fennell’s
failure to provide a consistent account of where he
was and what he was doing at the time Ms. Stites
was murdered is classic evidence of consciousness of
guilt. See Lozano v. State, 359 S.W.3d 790, 814 (Tex.
App.—Fort Worth 2012, pet. ref’d).15
Fennell’s inconsistent statements would also have
led to the introduction of other evidence casting
doubt on his credibility including:
• Fennell’s false explanation for why he and Ms.
Stites had not recently had sex;
• Fennell’s inconsistent statements about
refilling the gas tank in his truck the night of
April 22, 1996;

15 A similar inconsistency was used as evidence against Mr.

Reed at his trial. Upon his arrest for unrelated drug charges,
Mr. Reed was surprised by the Bastrop Police investigators
when he was asked about Ms. Stites’s murder and falsely
denied knowing Ms. Stites. Although Mr. Reed’s reluctance to
reveal an affair with the white fiancé of a racist police officer
that would connect him to an open murder investigation is
understandable, there is no innocent reason for Fennell to have
given a false statement about his activities on the night of April
22, 1996 to his best friend.
 288a

• Fennell’s inconsistency with Ms. Stites’s

mother’s account that Fennell was supposed to
have driven Ms. Stites to work;
• Fennell’s withdrawal of all the money in his
bank account on the morning Ms. Stites was
reported missing.
Memorandum and Objections at 27.
Fennell is also affirmatively implicated in the
murder by the new scientific evidence. The
uncontradicted expert opinions of Drs. Michael
Baden, M.D., Werner Spitz, M.D., and Leroy Riddick,
M.D., establish that Ms. Stites was murdered before
approximately midnight on April 22, 1996—hours
before Fennell claimed Ms. Stites left for work. See
Exhibits 6, 7, and 8. Further, these experts also
state that Ms. Stites’s body was moved several hours
after her death. See id. The new medical evidence
places the murder at a time Fennell testified that he
and Ms. Stites were alone in their apartment. The
evidence that Ms. Stites was moved after death is
also consistent with an attempt by Fennell to later
dispose of Ms. Stites’s body around the time she
would have been traveling to work.
And finally, when confronted with this
inconsistency and subpoenaed to testify and explain
himself at the October 2017 habeas hearing, Fennell
refused to testify and asserted his Fifth Amendment
right against self-incrimination. See Memorandum
and Objections at 39. Because Fennell has
selectively and opportunistically asserted his Fifth
Amendment rights, this Court can and should infer
that Fennell’s testimony at that hearing would
 289a

incriminate him. See Coffey v. State, 796 S.W.2d 175,

178 (Tex. Crim. App. 1990).
This Court has recognized that even the
demanding standard under Elizondo, does not
require a person to negate the sufficiency of the
State’s evidence or affirmatively prove innocence.
See, e.g., Ex parte Cacy, 543 S.W. 802, 803(Tex. Crim.
App. 2016) (Yeary, J., concurring) (Elizondo requires
only evidence “compelling enough to defeat the
systemic presumption of innocence”). Rather, the
focus of the Court’s innocence inquiry (under
Elizondo and article 11.071 § 5(a)(2), as well as
under article 11.073) is whether a jury would
entertain reasonable doubt. Where the new evidence
presented herein and through Mr. Reed’s prior
habeas applications contradicts both (1) the State’s
scientific evidence linking Mr. Reed to the murder
and (2) the “life circumstances” evidence refuting Mr.
Reed’s defense, he has established his actual
innocence. See Ex parte Elizondo, 947 S.W.2d at 209;
Tex. Code Crim. App. art.11.071 §5(a)(2).
Conclusion and Prayer
The jury that convicted Mr. Reed of capital
murder was faced with competing theories which
explained the presence of Mr. Reed’s DNA on and in
Ms. Stites’s body. Mr. Reed alleged that he and Ms.
Stites were involved in a relationship that had been
kept secret from Mr. Stites’s fiancé. Based on the
unrebutted testimony of multiple experts, the State
contended that such a relationship was impossible
because Mr. Reed’s spermatozoa was linked to a
sexual assault contemporaneous with Ms. Stites’s
murder. Instead, the State argued that Mr. Reed
abducted Ms. Stites on her way to work and drove
 290a

her to a secluded location where he raped and

murdered her. Faced with this evidence at trial, the
jury had little choice but to convict.
Over the past two decades, every aspect of the
State’s case against Mr. Reed has been disproven. In
this Application, Mr. Reed has presented new
scientific evidence which repudiates the State’s
expert opinions offered at trial and establishes that
the State’s theory of guilt is scientifically impossible.
There is also now considerable and credible evidence
that Mr. Reed and Ms. Stites were sexually involved
and that Fennell was not truthful in his
representations to police. Rather than testify as a
crime victim in these post-conviction proceeding,
Fennell has asserted his Fifth Amendment rights
because his truthful testimony would incriminate
him.
Accordingly, Mr. Reed respectfully requests that
this Court find that his Application for Writ of
Habeas Corpus meets the requirements of section 5
of article 11.071 and remand his case to the district
court for further proceedings at which he will prove
his claims of innocence and for other relief.

Respectfully Submitted,

/s/Bryce Benjet______________
BRYCE BENJET
State Bar No. 24006829
THE INNOCENCE PROJECT
40 Worth Street, Suite 701
New York, New York 10036
 291a

(212) 364-5340
(212) 364-5341 (fax)

ANDREW F. MACRAE
State Bar No. 00784510
LEVATINO|PACE PLLC
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
(512) 637-8563
(512) 637-1583 (fax)

MICHELLE L. DAVIS
State Bar No. 24038854
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM, LLP
725 N Avalon Street
Granbury, Texas 76048
(972) 523-8718

MORRIS L. OVERSTREET
State Bar No. 00000046
P.O. Box 35
Prairie View, Texas 77446
(713) 225-2016
(713) 225-2010 (fax)
 292a

CAUSE NO. 8701

THE STATE OF TEXAS X IN THE DISTRICT

X COURT OF
VS. X BASTROP COUNTY,
X TEXAS
RODNEY REED X 21ST JUDICIAL
X DISTRICT

REPORTER'S RECORD
JURY TRIAL
GUILT/INNOCENCE

MAY 5, 1998

MORNING SESSION

VOLUME 45 OF 69

ORIGINAL
 293a

[82]
particularly significant?
A. Not necessarily.
Q. Do you recall whether or not the two of you
went down and visited with Carol?
A. No, sir, we didn't.
Q. Okay. About what time did Stacey retire or go
to sleep that night?
A. Around 9 p.m..
Q. Okay. Were you going to go to sleep with her,
or were you going to stay up later that night?
A. I went ahead and stayed up and watched the
news.
Q. Now, I hate to have to ask you this, but I have
to ask you this. Did you and Carol -- I'm sorry,
I mean, did you and Stacey have any type of
sexual relations that night?
A. No, sir.
Q. Did you take a shower?
A. Yes, sir.
Q. Did she take a shower?
A. Yes, sir.
Q. Did you take a shower together?
A. Yes, sir.
Q. But nothing happened thereafter?
A. Nothing happened.
 294a

[83]
Q. And is there any specific reason why nothing
sexual happened that night between you?
A. Yes, sir.
Q. What is that reason?
A. She was on birth control and there was a
certain amount of the pills that she takes
that are not actually birth control, they're
just vitamins, and within that period of time
there is a greater possibility of getting
pregnant than the other pills, and she was on
those type of pills so we didn't have any kind of
sexual relationship during that time.
Q. And that information comes to you as a result
of the prescription?
A. Yes, sir.
Q. Is that what they told you?
A. Yes, sir.
Q. Once again, what was your intent with regard
to how she, Stacey, was going to get to work
the next morning?
A. She was going to drive herself and then I was
going to go down and get with her mother and
we was going to go that afternoon.
Q. All right. Do you recall at exactly what time
her alarm went off that morning?
[84]
A. I sure don't.
Q. I'm talking about the morning of the 23rd?
 295a

A. No, sir.
Q. Do you recall waking up and waking her up?
A. No, sir.
Q. Do you recall that she woke up and woke you
up?
A. No, sir.
Q. Are you a light sleeper or heavy sleeper?
A. On the evenings that I coach baseball, I'm
usually a heavy sleeper, because I get up there
running around and everything and my
exercise and everything so I sleep heavier.
Q. Do you know what her schedule called for on
that particular day?
A. I believe it was the 3:30 a.m. shift.
Q. Okay. Which would mean she would get up at
what time to be there by 3:30?
A. She would usually get up around 2:45, or 2:50.
Q. And it would take her how long before she left
the apartment?
A. About fifteen -- ten or fifteen minutes.
Q. And that would give her enough time to make
that drive and be there by 3:30?
A. Yes, sir.
[114]
A. Yes, sir.
Q. And also on her side?
A. Yes, sir.
 296a

Q. Was it -- in term of the invitations, was it

anticipated to be pretty much half and half?
A. Probably more favored to my side. I have a
larger family.
Q. What were your feelings about the upcoming
wedding?
A. I was excited about it.
Q. Did Stacey ever mention to you ever even
knowing a person named Rodney Reed?
A. No, sir.
Q. Prior to any of this happening, did you ever
know a person named Rodney Reed?
A. No, sir.
Q. Jimmy, I do have to ask you this. Did you kill
Stacey Stites?
A. No, sir.
MR. SANDERSON: I'll pass the witness.
THE COURT: Go head, ma'am.
MS. CLAY-JACKSON: Judge, may we
approach?
THE COURT: Yes, ma'am.
 297a

CAUSE NO. 8701

THE STATE OF TEXAS X IN THE DISTRICT

X COURT OF
VS. X BASTROP COUNTY,
X TEXAS
RODNEY REED X 21ST JUDICIAL
X DISTRICT

REPORTER'S RECORD
JURY TRIAL
GUILT/INNOCENCE PHASE

MAY 5, 1998

AFTERNOON SESSION

VOLUME 46 OF 69

ORIGINAL
 298a

[177]
Q. You personally spoke with David Lawhon
concerning Stacey Stites, did you not?
A. Yes, ma'am.
Q. Other officers, as well, spoke with David
Lawhon concerning Stacey Stites, is that
correct?
A. I don't have any personal knowledge of that.
Q. No one other than you was in the interview
room with David Lawhon when Stacey Stites
was discussed?
A. Not that I recall.
Q. After --
MS. CLAY-JACKSON: We need to approach
the bench one more time.
(Whereupon a brief discussion was held
off the record.)
Q. (BY MS. CLAY-JACKSON) After Gordon
Moore interviewed Jimmy Fennell, you spoke
with him?
A. With who?
Q. Jimmy Fennell?
A. Yes, ma'am.
Q. And he invoked his right to an attorney.
MS. TANNER: Objection, Your
[178]
Honor, that is not permissible questioning
with regard to Jimmy or anyone else.
 299a

THE COURT: It's overruled. Go ahead, sir,

you may answer the question.
A. Yes, he did.
Q. (BY MS. CLAY-JACKSON) That was in
December of 1996, was it not?
A. I believe that's correct.
Q. And after he did that, you did not then issue a
search warrant for his residence?
A. No, ma'am.
Q. Because you had not issued a search warrant
prior to that either, had you?
A. No, ma'am.
Q. Did you speak with Jimmy Fennell any more
after that incident in December of 1996?
A. I spoke with him afterwards, yes, ma'am.
Q. Did you speak to him between -- did you speak
to him concerning Stacey Stites's murder
between January of 1997 and March of 1997?
A. Yes, I did.
Q. Did he have his attorney with him at that
time?
A. No, ma'am.
Q. Ranger, you have no personal knowledge, or
 300a

CAUSE NO. 8701

THE STATE OF TEXAS X IN THE DISTRICT

X COURT OF
VS. X BASTROP COUNTY,
X TEXAS
RODNEY REED X 21ST JUDICIAL
X DISTRICT

REPORTER'S RECORD
JURY TRIAL
GUILT/INNOCENCE

MAY 14, 1998

MORNING SESSION

VOLUME 53 OF 69

ORIGINAL
 301a

[34]
you-all?
A. Yes, he did.
Q. The information concerning Stacey's
whereabouts after 7:30 on the 22nd of April,
when she left her mother's apartment and
went up to hers, all of that information --
where did that information from come from?
A. It came from Jimmy Fennell.
Q. I'm sorry, would you say it again?
A. It came from Jimmy Fennell.
Q. Do you recall whether there was any
independent information gathered about
Stacey's whereabouts or her actions after --
that did not come from Jimmy Fennell?
A. I can't recall. I can't recall that.
Q. That type -- would that type of detail,
independent information from someone who
was not a suspect, would that have been
information that you would have put in your
report?
A. Yes, it would have.
Q. Have you had an opportunity to look at your
report?
A. Yes, I have.
Q. And that information was not in your report,
 302a

CAUSE NO. 8701

THE STATE OF TEXAS X IN THE DISTRICT

X COURT OF
VS. X BASTROP COUNTY,
X TEXAS
RODNEY REED X 21ST JUDICIAL
X DISTRICT

REPORTER'S RECORD
JURY TRIAL
GUILT/INNOCENCE

MAY 14, 1998

AFTERNOON SESSION

VOLUME 54 OF 69

ORIGINAL
 303a

[133]
MS. TANNER: No further questions.
RECROSS EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. And you said your name last name is Vacek; is
that right?
A. V-A-C-E-K, yes.
Q. Are you in school now?
A. Yes, ma'am, I am.
Q. Where are you going to school?
A. I go to Blinn in Schulenberg.
Q. And what are you studying?
A. Agriculture.
Q. And when you and Stacey were in school, did
she anticipate going to college also?
A. Yeah, she did, but I didn't know where she
wanted to go or what she was going to do.
Q But she knew that you were going to Blinn,
correct?
A. Well, my first year of college was at Stephen F.
Austin in Nacogdoches. I went there two years
and, yes, she knew I was going there.
MS. CLAY-JACKSON: No further
questions.
 304a

CAUSE NO. 8701

THE STATE OF TEXAS X IN THE DISTRICT

X COURT OF
VS. X BASTROP COUNTY,
X TEXAS
RODNEY REED X 21ST JUDICIAL
X DISTRICT

REPORTER'S RECORD
JURY TRIAL
CHARGE OF THE COURT/CLOSING
STATEMENTS/VERDICT

MAY 18, 1998

MORNING SESSION
AND
AFTERNOON SESSION

VOLUME 56 OF 69

ORIGINAL
 305a

[25] contract is to follow your oaths and find the

defendant guilty of capital murder.
So the question is, as we finish all this, is did
we hold up our end of the deal? And the answer to
that is, yes, we did, and I want to talk to you about
that specifically, how we held up our end of the deal.
And in doing that, we introduced a number of
witnesses to you, and lots of pieces of evidence, and
everything that we introduced to you was introduced
to prove to you one of four things. Some of them
proved something within each of those four things,
but every piece of evidence was tailored to prove to
you one of the four things.
Number one, on April the 23rd of 1996 Stacey
Stites was abducted on her way to work, early that
morning around three o'clock. Number two,
everything was brought to tell you that after she was
abducted she was raped and she was sodomized at
the time of her death. Number three, everything we
brought you was here to tell you that in the course of
that rape and sodomy, Stacey was intentionally
murdered. And, number four, and this is just [26] as
important as all the others, everything we brought
you was brought to you to tell you that he is the one
who did it. Only one person on the face of this earth
could have done those three things, and it was this
defendant. That's what all the evidence was brought
to you to prove.
And before I go into each one of the four of
those, I feel the same way I did on opening
statement, and I need to apologize to you again. This
time I feel like I need to apologize to you for the
nature of what you had to sit here and listen to for
two weeks, and I know it wasn't easy, and I want to
 306a

tell you I'm sorry that we had to expose you to this

underbelly of our society, this sort of thing. I'm sorry
that we had to show you the photographs that we
had to show you. I'm sorry that we had to bring in
the people to talk about the evidence that was as
graphic as it was. We weren't doing that to try to
gross you out, or to shock you, or to upset you. I know
by necessity it's going to upset you, but we were
doing that because the only way that you can come to
a rational verdict is to
[33]The second thing that we endeavored to
prove to you through the course of the evidence was
that Stacey was raped and sodomized, and we talked
so very much about that, and the reason for that is
because it's so critically important. And that evidence
of rape revealed itself to Karen Blakley, a seasoned
crime scene investigator, right away. And it revealed
itself because, as we talked about, the first thing they
noticed is a young lady laying out in the woods
without a shirt on. They noticed her pants wide open,
her zipper broken. Now how critical is that?
You remember, Karen came here and she
looked at Stacey's pants and it was so broken she had
to yank and play with it to get it to come up. And, I
mean, she yanked on it pretty good. That tells you
something, folks.
She told you that Stacey's panties were all
stretched out. That tells you something. So right
there, this seasoned crime scene investigator has
bells going off in her head. And thank goodness she
did the smart thing, she went and she took the swabs
that we talked about. She took the vaginal [34]
swabs, and what did she find? At eleven o'clock that
night she goes back to the lab, she puts them under
 307a

the microscope and bingo, she finds three fully intact

spermatozoa. At that point she knows what she's got
here. We all know what she's got here. Because we
know, from the credible evidence, that that doesn't
hang around for days on end. We know from the
credible evidence that that tells you that that semen
got in that girl's body within 24 hours of that eleven
o'clock moment. Which is when? On her way to work.
So Karen tells us that, and then we know Stacey goes
to Dr. Bayardo. Dr. Bayardo does the same thing. He
looks at the swabs and what does he find? He finds
intact spermatozoa, same thing, and he tells you
what the significance of that is. And then Dr.
Bayardo goes further, and thank goodness he does.
Karen told you why she couldn't go further. Dr.
Bayardo does a full examination and what does he
find? He finds that evidence of the anal tearing that
we talked so much about. And he finds, without any
doubt at all, that that occurred at the time of [35]
Stacey's death. How important is that in the grand
scheme of things in this case?
He also, if you will recall, looked at the swabs
from the rectal swabs and remember what he said.
He said he saw a small amount of what appeared to
him to be broken up heads and tails of spermatozoa.
Now that's pretty significant, taking into account
what Dr. Johnson said later on, and we'll talk about
that in greater detail in a little bit.
So that right there tells you just how
important this scientific evidence is. So what did Dr.
Bayardo tell you when he testified? He said that in
his opinion, looking at everything, looking at all the
evidence, whatever happened to this young girl had
 308a

not happened consensually, based on everything he

saw.
And it's important to note that we introduced
-- the defense introduced this autopsy report. And
you have this, and if you need to see it, you can. At
the very end Dr. Bayardo gives his opinion, and his
opinion is, that based on the findings that the
decedent, Stacey Stites, came to her death as a result
[36] of asphyxia due to ligature strangulation -- the
last four words are the most important for right now
-- associated with sexual assault. Not associated with
some sort of a sexual rendezvous, but ligature
strangulation associated with sexual assault. How
important is that?
Now, we also brought you evidence of the
mapping of Stacey's underwear. Karen Blakley told
you about that. And why is that so important? That's
important because it tells you, it gives you an idea of
where the semen was on Stacey's panties. And what
did Karen tell you? That it wasn't consistent with
any kind of drainage like the defense talked about,
that there was a very small amount, and that the
significance of that is that relative to what they saw
on the vaginal swabs, there was very little drainage,
and the conclusion that you have to reach is that
there wasn't much movement after that happened.
There was not much movement after the sexual act.
What does that tell you once again? It tells you that
it got there at the time of her death. It tells you
again, [37] objective evidence of what happened.
So we bring you as well Karen's testimony
with regard to the breast swabs, and later testimony
that there was saliva on those. That, too, tells you
that this happened that morning at the time of her
 309a

death, because it's not going to be hanging around

there days later, not when normal people take
showers and wash things off of them. It happened
that morning.
So when I came here and I talked to you and I
characterized this part of the evidence as the
smoking gun, and I still do, because it is a smoking
gun, because it is the thing, because it got there at
the time that it did, that leads you directly to
Stacey's killer. Everything that is credible,
everything that is objective points to that happening
that morning, and that is critically important.
So, once again, as we look at the elements that
we're required to prove to you, number seven for
count one, "while in the course of committing
aggravated sexual assault," put a check there,
because the [38] credible evidence tells you that.
Now, we have to also prove to you that this
aggravated sexual assault and this murder go hand
in hand, and we have to prove to you that this was an
intentional murder. That's one of the elements that
we are required to prove, and that's yet another thing
that we did. We know that the sodomy occurred at
the time of Stacey's death; and we know that the
semen got in her body at the time of her death; and
we know that whoever raped Stacey also killed her.
And based on Dr. Bayardo's testimony, we know that
whoever killed her did it intentionally. He told you,
remember this, how he said this happened, this belt
is broken now, but remember he said this was taken
and it was held like this. For how long? For three to
four minutes, ladies and gentlemen. Three to four
minutes. How can anyone say this would be anything
other than intentional, for that length of time? His
 310a

opinion, based on that, was that this was an

intentional killing.
And you know, it's real easy for us -- we toss
around the word "minute" a lot.
[39] We talk about, oh, it took five minutes; it
took a minute; I don't know, a minute or two. If you
had any doubt, any doubt at all about just how long
three or four minutes is, for purposes of what we're
talking about here, go back in the jury room, sit
quietly, just take your arm and squeeze your arm
just hard enough to have pressure there and watch
the clock. Let three minutes pass. And see just how
long of a time that is, just where you know there's
pressure on it, and try to imagine just what that
would be like in the situation that Stacey was in.
There is no way that you could possibly conclude that
this was anything but an intentional murder.
So, once again, you can go over here, as to
these elements, and check off intentionally. Check off
intentionally.
Dr. Bayardo's testimony was hard, and I know
it was, and it was hard because I could see it on your
faces, on many of your faces, the realization of it. The
realization and sort of the visualization of really
what we were talking about in this case I think
finally hit; and the realization of a [40] 19-year-old
girl being sodomized while the life was being taken
out of her while this belt was around her neck. And
I'm sorry that you had to be exposed to that; but,
again, you can't come to the right decision if you don't
understand. You've got to be able to understand what
happened here, as bad and as horrible as it might be;
to adequately judge, you've got to understand.
 311a

So, let's talk about the fourth thing. The fourth

thing that we had to prove to you in this case. We
had to prove to you, obviously, that it was that man
over there who did these things to that girl. And we
talked to you about the semen. Gosh, we talked a lot
about that, and I characterized it at opening as the
smoking gun. You can also think of it sort of like as
equivalent to the slipper in the Cinderella story.
Here we had it, we just had to find who it fit. Just
like that. We had the smoking gun, we had the
semen, and the investigators had to find out who it
fit. So they go, and all these investigators, they told
you about the year of frustration they lived with,
getting blood, working up
[49] It's compelling. And it's convicting. But
there's other stuff, too. There's other evidence in this
case that ties this defendant to being the murderer of
Stacey Stites.
We know that she had to drive through his
territory every night, and that he was wandering
around. He was out and about. Now, I know what the
defense is going to come tell you I suspect is that we
don't know for sure that she went that route. She
could have gone the loop, and if she went the loop,
then they never would have seen each other. But I
want to point out to you what Andrew said. Andrew
Cardenas came before you -- here is a picture of HEB,
and he told you that he would see Stacey driving in
this side entrance over here to the HEB, over here to
the side, right in front of what was then a Walmart
and now is a Ben Franklin, I think.
If you look at this exhibit, State's Exhibit 2,
she would be going down Hospital Drive to get over
in here.
 312a

Now what does that tell you? It tells you that

Stacey was going exactly the route that Jimmy told
you. If she's going to [50] go the loop, she's not going
to make this turn here and go up and go around. So
you can reasonably assume, based on what Andrew
told you and based on what Jimmy told you, Stacey
went to work this very same way that we've talked
about so many times. And what do we know about
that route? We know that this defendant is out there
hanging around all night out there. Now, if he's out
hanging around --
MR. GARVIE: I'm going to object this, she's
stating facts not in evidence. Obviously, no one has
testified to the man being out that night.
THE COURT: Overruled. Go ahead.
MS. TANNER: If he's out hanging around out
in here, you know, somewhere up in here in the
county in the middle of the night, and some sheriff's
deputies tell you that, that's not real compelling.
That doesn't mean a whole lot even if he does hang
out all night. But the fact that he's over here at
Long's Star Mart most every night of the week until
three,
[56] See, that's kind of the strength of DNA
evidence. DNA evidence is so powerful when you're
talking about semen in a dead girl's body, that it is so
powerful it's a little hard to go, "It wasn't me, must
have been somebody else. Couldn't have been mine."
So then because of that, this is how you get those
claims of, "Well, okay, it was consensual." What else
are they going to say? What else can they say?
That's why, that's why this statement that the
defendant made is so important. That's why this is so
 313a

critically important, because at that point in time

when he made this statement he didn't know they
had tested that other sample that they already had.
He didn't know that they already had him tied to
that semen. So what's he telling you there when he
doesn't know? Well, I don't know, never met her,
never seen her, don't know her. And then only after
he finds out that he's nailed by the semen do we get
this secret affair. That's why this is so important.
Now, let's talk about the secret affair. The angle of
the investigation in
[60] Ms. Lindley is utterly devoid of
credibility, and we know how darn reliable that ID is.
So that's the evidence of the secret affair.
That's what we've got. And we've got to look at the
circumstances of Stacey's life to tell us whether that's
really true. Let's look at her life back then in April of
1996 when she died. She was 18 days away from her
wedding. She was, by all accounts, even their own
witness says, she was extremely excited about the
wedding. The girl took a job where she had to be at
work at 3:30 in the morning so she could make 50
cents more an hour to pay for her wedding dress. Her
friends all knew how excited she was. Her mom told
you that the very night before she died she looked
like a young girl in love, as did Jimmy. The last
conversation she ever had with her sister was about
the shoes for the wedding. The last conversation she
ever had with her mother was about, "I'm going to
marry Jimmy." Remember that?
Jimmy told you that Stacey was on the green
pill at the time of her death so they [61] weren't
engaging in any kind of sexual relations, but they
 314a

expect you to believe that she would go out and do

that with him?
Let's look at what was in her truck. State's
Exhibit Number 79 is a portrait certificate. Stacey
and Jimmy were scheduled to have their portraits
made on the 27th of April, 1996.
State's Exhibit Number 78. On the 18th of
April, Stacey put down $50 on her wedding dress, a
dress that she was getting up at 3:00 in the morning
to go to work to pay for.
Those things are all circumstantial evidence of
her state of mind at the time of her death. And what
was her state of mind? It wasn't what they're saying
it is, that's for sure. What was she planning on doing
that day? Her plan for that day was Jimmy was going
to meet her, they were going to get the insurance
together, and then they were going to go pick out
flowers after she got off work.
Now, do you really expect that that girl on the
morning of April 23rd of 1996,
[72] to do.
And I want to you to think, just imagine,
would you, please, imagine being in Jimmy's shoes.
Think about being Jimmy Fennell through the course
of all this. Your fiance is murdered 18 days before
your marriage. You were supposed to take her to
work and her mom, she talked you out of it. You were
supposed to have taken her to work and she wouldn't
have been out there. You don't even get to grieve
normally because the police are all over you for seven
and a half months saying, "Did you kill her? Did you
kill her? You killed her. You killed her." You're the
 315a

first in line to give blood and you're the first in line to

give hair and saliva. They're still all over you because
you're a cop and because you are the boyfriend. Seven
and a half months they're after him.
Finally, finally there is an arrest. Finally they
find the person who really did it. We come trial and
then what happens, if you're Jimmy? You get to hear
that your fiancee is off having a secret affair with
[73] this guy. And then you get to come here and
have the defense tell the whole world and tell you to
your face pretty much that you killed her. What a
nightmare that must be. God, what a nightmare to be
Jimmy Fennell. The fact is, though, for seven and a
half months they looked at Jimmy and the truth is,
he couldn't have done it. It was logistically impossible
for Jimmy to have committed this offense, and that's
the bottom line.
Mrs. Stites told you over and over again that
there were two sets of keys to her car and she had
them. And she, on the morning that Stacey
disappeared, gave the extra set of keys to Jimmy. He
had no means to use her car. The police didn't stop
there, though, they looked for taxi fares. None. They
even went so far as to check the mileage logs of all
the Giddings police cars to make sure everything
jived and everything was where they should have
been, and they were. There was no means by which
Jimmy could have even done this.
You know how desperate the defense is getting
when they ask Lieutenant Campos, "Well [74] is it
possible to walk from Bastrop to Giddings and back?"
"Well, I suppose." Well, let's look at that for just a
minute.
 316a

We know that Stacey's truck was left sometime

between 4:30 and 5:23. So let's give the defense the
benefit of the doubt here, and let's say the truck got
left at 4:30 in the morning and Jimmy starts hoofing
it back to Giddings at 4:30 in the morning. Now we
know that she didn't get killed at midnight the night
before or seven o'clock or whenever the night before
because Dr. Bayardo tells us that, that Stacey died
within an hour of three o'clock. So we know what our
timeframes were. So let's say 4:30 in the morning the
truck is left off and Jimmy is hoofing it back to
Giddings. He's accounted for by Mrs. Stites at 6:45.
That's two hours and 15 minutes. You can do the
math. Thirty miles. He would have to be doing four
and a half minute miles to have made it back to
Giddings by the time he came downstairs and saw
Mrs. Stites.
Well, I'm sorry, folks, but Jimmy Fennell does
not look to me like a marathoner,
[76] The fact is, is that there is their case.
There it is. And there is nothing, nothing, that takes
you away from him being the true killer of Stacey
Stites.
And isn't it interesting that we talked a lot
about the fact that Jimmy didn't have an alibi.
Jimmy didn't have an alibi for that night. Jimmy
didn't have anybody accounting for his whereabouts
because Stacey was the only one who could have
accounted for his whereabouts. It's important to note
that nobody could ever find anything inconsistent
with what he told you. Nobody. They canvassed his
apartment, they looked everywhere, and nobody
could find anything inconsistent. But it's true, Jimmy
didn't have an alibi. But ask yourselves, is there
 317a

anyone else here who didn't have an alibi? Is there

anyone else who we've heard evidence about that
didn't have an alibi? Yes, there is, the defendant.
MR. GARVIE: Objection. Again, comment on
the defendant's failure to testify.
THE COURT: It's overruled,
[156] response to your latest inquiry. Let me remind
you of what that inquiry said. After I do that, then
the court reporter will read to you from her notes
what we believe is a response to that. The inquiry is
as follows: "To the Court, we disagree as to the
testimony of the medical examiner regarding, A. Did
he find sperm in the anal cavity as observed by tests
or observation? What was the condition of found
sperm? B. His opinion on the life expectancy of intact
sperm in the anal cavity. C. Time period associated
with anal dilation after death in non-sexual assault
victims; and D. What is the evidence that supports
the sodomizing of Stacey Stites?"
The court reporter has found what I believe is
a response to A, a response to B, and a response to C.
As far as inquiry D is concerned, I do not believe the
Court is permitted to answer that, that's within the
jury's purview to answer that. That inquiry was:
"What is the evidence that supports the sodomizing
of Stacey Stites?" That's for the jury to decide.
Otherwise, I'll have the
[160]
Q. In regard to the injuries suffered by Stacey
Stites, the dilated rectum, the rectum dilates
at death, does it not?
 318a

A. No, it does not, it only dilates very late in the

stages of body decomposition, and that usually
occurs after four or five days.
Q. So your testimony is that it does not dilate at
the time of death, right?
A. That's correct.
(Ends third portion read back to jury.)
Q. On page three of your report, where you speak
of smears, do you recall stating in that result
that there were few spermatozoa, heads and
tails, was an indication that a day or two
before that -- that intercourse had happened a
day or two before that exam?
A. No, before my examination.
Q. That's your recollection of what that means?
A. That's correct, yes, ma'am.
(Ends fourth portion read to jury.)
Q. Okay, the rectum was intact and free of
 319a

[170]
STATE OF TEXAS
COUNTY OF BASTROP
I, Carolee Murray, Official Court Reporter in
and for the 21st Judicial District Court of Bastrop
County, State of Texas, and Notary Public for the
State of Texas, do hereby certify that the above and
foregoing contains a true and correct transcription of
all the proceedings (of all proceedings directed by
counsel to be included in the Statement of Facts, as
the case may be), in the above styled and numbered
cause, all of which occurred in open Court or in
chambers and were reported by me.
I further certify that this transcription of the
record of the proceedings truly and correctly reflects
the exhibits, if any, offered by the respective parties.
WITNESS my hand this the 20th day of
August, 1998.

______________________________
Carolee Murray
Official Court Reporter
335th Judicial District
Certification No. 1938
Expiration Date 12-31-98
P.O. Box 2441
Brenham, Texas 77834
(409) 277-0707

Taxable Court Cost: ____________________

 320a

REPORTER’S RECORD

VOLUME 2 OF 6 VOLUMES

WR-50,961-08

TRIAL COURT CAUSE NO. 8701

THE STATE OF TEXAS ) IN THE DISTRICT

) COURT
vs. ) BASTROP COUNTY,
) TEXAS
RODNEY REED ) 21ST JUDICIAL
) DISTRICT

WRIT OF HABEAS CORPUS

On the 10th day of October, 2017, the following

proceedings came on to be held in the above-titled
and numbered cause before the Honorable Doug
Shaver, Judge Presiding, held in Bastrop, Bastrop
County, Texas.
Proceedings reported by computerized stenotype
machine.
 321a

[39] pathologist, Your Honor.

Brady requires a link from the nondisclosure
to what is presented in support of it, Your Honor.
And there’s absolutely no link here between Jimmy
Fennell supposedly saying that he got home at a later
time and a forensic pathologist. I see absolutely no
relevance to that whatsoever.
THE COURT: Okay.
MR. OTTOWAY: In addition, if we actually
look at the order that we have from the Court of
Criminal Appeals, and we look at the description in
the concurrence by Judges Alcala and Walker, they
say specifically, “I agree with this Court’s
determination that it is necessary to remand the
claims presented in the Applicant’s eighth writ
application in which he asserts that new evidence
has emerged indicating that an ultimate suspect,
Jimmy Fennell, made false statements about his
whereabouts.” That’s the only thing we are here on,
Your Honor, is whether Jimmy Fennell supposedly
was not where he said he was at. And forensic
pathology has nothing to do with where Jimmy
Fennell was or was not. That is simply a credibility
matter. It’s simply an impeachment matter. It is not
opening a retrial, including forensic pathology.
Alternatively, if you are not going to [40]
accept the argument that I have presented, I believe
that a more limited manner in this proceeding would
be warranted, in which we have Curtis Davis -- the
entire basis of his claim that Jimmy Fennell
supposedly told him something that differed from his
testimony -- testify first. And if you don’t believe that
Jimmy Fennell told him the statement that is the
 322a

basis of the entire writ, that he got home later, then

we shouldn’t proceed further, Your Honor. It should
be that one witness. And if you don’t believe that he
was told by Jimmy Fennell that he got home at a
time different than what he testified to, there is no
further reason for this proceeding.
And, again, forensic pathology has nothing to
do with whether Jimmy Fennell got home at 10:00 or
11:00 versus 8:00 or 8:30, Your Honor.
THE COURT: All right. I’ll take that into
consideration after we have heard those witnesses.
MR. OTTOWAY: Okay. Thank you, Your
Honor.
THE COURT: All right. Your objection is on
the record. Who will be your first?
MR. BENJET: Your Honor, I think we want to
take up a matter with regard to Jimmy Fennell. And
I know he’s got counsel here. And so we would be
calling [41] him as a -- our first witness. But if we
want to -- if his counsel wants to be heard on that, we
can certainly accommodate that.
THE COURT: I don’t know -- who is his
lawyer?
MR. OTTOWAY: Well, your Honor, if I may -- I
mean, this is directly related to what I was arguing,
is that Curtis Davis needs to be the first witness. And
if you don’t believe Curtis Davis, if you don’t believe
that Jimmy Fennell told Curtis Davis anything, we
shouldn’t get to Jimmy Fennell, we shouldn’t get to a
possible invocation. We should hear Curtis Davis,
and if you don’t believe Curtis Davis or if Curtis
Davis says something different, if he doesn’t, you
 323a

know, say that Jimmy Fennell told him anything, we

shouldn’t be going further.
MR. BENJET: The whole case is about a
statement made by Mr. Fennell. You know, certainly
my -- I think my case, and I should be able to choose
the order. And I suspect that we might hear some
sort of objection about hearing what Jimmy Fennell
told somebody else from the State. So let’s take --
THE COURT: Well, another reason this
lawyer needs to do whatever he’s going to do is to get
out here. Call Mr. Fennell.
[42] MR. PHILLIPS: Your Honor, if I may, as
his lawyer --
THE COURT: Well, introduce yourself for the
record.
MR. PHILLIPS: My name is Robert Phillips,
counsel for Jimmy Fennell. Mr. Fennell tends to
stand on the truthful testimony he gave 20 years ago
and will be declining to testify further, on advice of
counsel under the rights afforded him by the
Constitution of the United States and particularly
the Fifth Amendment.
THE COURT: All right, sir.
MR. PHILLIPS: I’ve made that known to both
sides. We have an affidavit to file, in lieu of his
testimony, which I think is acceptable to both
counsel.
THE COURT: Do you agree?
MR. BENJET: I haven’t -- I want to just take a
look at it, but, if it’s as represented, we would go on
 324a

his affidavit that’s presented today. You know,

obviously, we can’t make him talk.
THE COURT: You need to see the affidavit?
MR. BENJET: If you wouldn’t mind, yeah.
THE COURT: Yeah. Go ahead.
[43] MR. OTTOWAY: I’d like to see a
copy, too, Your Honor.
THE COURT: All right.
MR. OTTOWAY: But, again, Your Honor, I am
reiterating here, we shouldn’t get to Jimmy Fennell
because the undisclosed evidence is not what Jimmy
Fennell said, it’s what Curtis Davis said that Jimmy
Fennell said. That’s the entire basis of the writ. So
having an invocation here, we might not even get to
this particular witness. I think we should hear Curtis
Davis first, before we take up this particular issue. If
you don’t believe Curtis Davis or you don’t believe --
he says that, you know, Jimmy Fennell didn’t tell
him this alternative timeline, then we don’t go
further.
THE COURT: I understand. We’re still talking
about Mr. Fennell at this time.
MR. OTTOWAY: Thank you, Your Honor.
MR. BENJET: This affidavit is acceptable to
us to memorialize the invocation of the rights.
THE COURT: Do we have something in the
file?
MR. BENJET: We don’t.
MR. PHILLIPS: I have the original.
THE COURT: If you would have it filed
 325a

over there with the clerk so that --

[44] MR. PHILLIPS: Thank you.
MR. BENJET: And if I can just read it aloud
for the record. To the paragraph 1:
“My name is Jimmy Lewis Fennell, Jr. I am
over the age of 18 and fully competent to make this
affidavit. I currently reside at the TDCJ Sanders
Estes Unit in Johnson County, Texas.
Paragraph 2:
“I am aware that a bench warrant for my
appearance and testimony in Bastrop County District
Court has been issued in Ex Parte Reed, No. WR-
50,961. A copy of a bench warrant is attached as
Exhibit 1. I have discussed this matter with my
attorney prior to executing this affidavit.
Paragraph 3:
“If I am called to testify and asked any
questions regarding the subject matter of (A), the
murder of Stacey Stites; (B), any statements I may
have made regarding my activities and whereabouts
on April 22nd-23rd, 1996; (C), the investigation of the
murder of Stacey Stites, or (D) the prosecution and
trial of Rodney Reed for the murder of Stacey Stites, I
will not answer the questions. Instead, I will respond
to each question regarding the subjects by stating
that, ‘On advice of counsel, I am [45] declining to
answer the question based on my Fifth Amendment
right not to testify.’”
Paragraph 4:
“If I am called to testify and asked any
questions regarding any allegation against me of
 326a

criminal conduct while I was working as a police

officer, I will not answer the questions. Instead, I will
respond to each question regarding these subjects by
stating that, ‘On advice of counsel, I am declining to
answer the question based on my Fifth Amendment
right not to testify.’”
Signed on October 7, 2017. There is a
notarized signature affirming that it’s Jimmy
Fennell, and then attached is the bench warrant.
And, Your Honor, if you would like a copy, we can
provide you one -- or you have it right there.
THE COURT: That’ll be accepted. And he will
not testify?
MR. PHILLIPS: He will not testify.
THE COURT: If he will not testify, you’re free
to go.
MR. PHILLIPS: I’m going to stay for a while, if
I may.
THE COURT: You can stay. And if he’s here --
I don’t know if he’s here or not -- he can be [46]
returned back to his unit.
MR. OTTOWAY: Actually, Your Honor, if we
could, if he could stay, in case he decides to change
his mind during the proceeding. Just keep him here
until that period, until this is concluded.
THE COURT: Just let the sheriff know that.
Okay.
MR. BENJET: Your Honor, you know, I don’t
know, holding him up here for how long?
 327a

THE COURT: Until we’re finished. And we’ll

let the lawyer know he’s never coming in this
courtroom without you.
MR. PHILLIPS: Thank you, Judge. Mr.
Fennell reserves the right to change his mind, but
right now that’s our position.
THE COURT: All right.
MR. OTTOWAY: And, Your Honor, we would
ask, again, with any Fifth Amendment invocation
that no adverse inference may be drawn from that.
THE COURT: So done.
MR. BENJET: Your Honor, I think that’s
actually a more complicated issue than that, and we
can take that up. I’m happy to take that up, you
know, in a little bit, but I do think that this is a
circumstance in which an adverse inference would be
permissible. And [47] so, you know, I’m happy to talk
to you about that now, or I know we talked about
doing a document review before Curtis Davis
testified, based on the Court’s disclosure. I can take
that up right before we go into Curtis Davis after
that break.
THE COURT: Okay. Is now when you need the
break?
MR. BENJET: Yes.
THE COURT: So everyone knows, there’s several
videos of statements that the defense has to look at.
And it’s going to take approximately an hour. And I
know y’all are all sitting around. I am going to give
them an hour to review it so that they can question
the witnesses with some knowledge of what the
 328a

person may or may not have said. So that’s what all

this is about, so that you all know.
We will be recessed for one hour.
(Break.)
THE COURT: Have you had an opportunity to
review all materials?
MR. BENJET: Yes, we have.
THE COURT: So now you are prepared to call
your first witness?
MR. BENJET: Yes, Your Honor. We will call
Curtis Davis.
[63] THE COURT: That’s sustained.
MR. OTTOWAY: It’s not permissible direct
examination.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) So, on the morning of April
23rd, did you see Jimmy Fennell?
A. Yes, I did.
THE COURT: Excuse me. What year are we
talking about?
MR. BENJET: Oh, I’m sorry. 1996.
THE COURT: All right. Go ahead.
Q. (By Mr. Benjet:) So let me clean that up then.
On the morning of April 23, 1996, did you see
Jimmy Fennell?
A. Yes, I did.
Q. And where did you see him?
 329a

A. The first time I saw him?

Q. Yeah.
A. It was in the break room of the sheriff’s office
here.
Q. And did you spend some time with him there in
the sheriff’s office?
A. Yes, sir.
Q. Did you go anywhere with him, subsequent to
seeing him there in the sheriff’s office?
[64] A. All day long.
Q. Okay. So you were with him all day?
A. Yes.
Q. Did you go out to take a look at his truck?
A. Yes.
Q. And where did you go after that?
A. I believe that we went back to his apartment in
Giddings.
Q. And what was the purpose of you going back to
his apartment?
A. Just to be comfort, assist in helping him make
it through what seemed to be a very, very difficult
time for both him and me.
Q. And while you were there at the apartment
with Mr. Fennell, did you have a conversation about
the events of the night before?
A. We did talk about the night before.
 330a

Q. And so did he tell you that, you know, he felt

some blame for allowing her to drive to work that
morning?
A. Yes.
MR. OTTOWAY: Hearsay, Your Honor.
THE COURT: That’s sustained.
MR. OTTOWAY: Move to strike the answer.
MR. BENJET: Your Honor, respecting
[70]Honor.
THE COURT: That’s sustained. We’re getting
kind of off here.
What we need to ask and answer: What did
you tell CNN? You’ll have lawyers for the State ask
you some questions here in a minute about why you
answered it a certain way. But he’s asking you: What
did you tell CNN?
That’s all we want to hear at this point,
correct?
MR. BENJET: Judge, maybe I can suggest,
he’s reviewed these statements.
Q. (By Mr. Benjet:) Would he -- would you adopt
those as what you told CNN?
A. Yes.
Q. And those statements --
THE COURT: Are you going to offer those?
MR. BENJET: Yeah, that’s what I am going to
do. So I am going to offer the transcript of the CNN
interview, which is at Tab 2. I am going to mark that
as Applicant’s Exhibit 1.
 331a

(Applicant’s Exhibit No. 1 marked.)

MR. BENJET: May I approach?
THE COURT: Please.
MR. BENJET: Your Honor, I’d ask that be
[71] admitted, based on Officer Davis’ adoption as
what he told CNN.
MR. OTTOWAY: Your Honor, I think it should
be -- I have no objection to certain portions of it. I
don’t think the entire thing needs to come in. If the
relevant portions want to come in, I have no
objection.
THE COURT: It’s all admitted.
MR. BENJET: Thank you, Your Honor.
(Applicant’s Exhibit No. 1 admitted.)
Q. (By Mr. Benjet:) Now, did you stay in touch
with Jimmy Fennell after Stacey Stites was
murdered?
A. For a while, yes, sir.
Q. And are you aware he moved on to a different
police department after Giddings?
A. Yes, I was.
Q. And which department was that?
A. Georgetown Police Department, I believe.
Q. Did he then move away from Giddings?
A. Yes.
Q. And that was why you didn’t keep up as much?
A. It aided that he was in a different city,
different timeframe, yes, sir.
 332a

Q. So you don’t have any personal beef with

Jimmy Fennell?
[73] of us, Counselor?
Q. This one or others.
A. Can I read this one?
Q. Yeah, absolutely.
A. Thank you.
(Pause.)
A. I’m reading it, but I don’t remember it.
Q. If the fact that you were -- have reported
something like this information about the murder to
investigators of Bastrop County appeared in a police
report, would you have any reason to question that?
MR. OTTOWAY: Your Honor, he said he
doesn’t recall.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) So as an officer of law, if you
did have any information regarding the murder of
Stacey Stites, do you have an obligation to tell the
truth about that?
A. That is correct.
Q. Do you know who Rocky Wardlow is?
A. I do.
Q. Did you know him back in 1996 --
A. Yes.
Q. -- through ‘98?
A. Yes, sir.
 333a

[74] Q. And you talked to him about the Stites

murder investigation; is that correct?
A. Talked to, interviewed, spoken in passing?
Which? I am going to have to define that. I am going
to say we spoke, yes.
Q. About the investigation?
A. Yes.
THE COURT: No, he’s asking you -- what are
you asking him?
Q. (By Mr. Benjet:) Oh, did you speak to Rocky
Wardlow about the investigation of the murder of
Stacey Stites?
A. Yes.
Q. Do you know who Forrest Sanderson is?
A. Yes, I do.
Q. And was he an assistant Bastrop County
district attorney at the time of the Stites
investigation?
A. Yes, sir.
Q. And you talked to him about the Stites
investigation during the time period before Mr.
Reed’s trial; isn’t that correct?
A. I don’t recall a specific conversation or
interview or anything like that, no, sir. I don’t recall.
Q. Now, you were disciplined by the Bastrop
County [75] Sheriff’s Office in relation to what you
said to CNN; isn’t that true?
MR. OTTOWAY: Objection, Your Honor,
specific incidence of conduct.
 334a

THE COURT: That’s overruled.

THE WITNESS: Say it again.
Q. (By Mr. Benjet:) You were disciplined by the
Bastrop County Sheriff’s Office in relation to what
you said to CNN; is that right?
A. Yes, I was.
Q. What was the discipline?
A. Excuse me?
Q. What was the discipline that you received?
A. Two weeks off, without pay.
Q. Was that a good amount of money for you?
A. Yes, sir.
MR. OTTOWAY: Objection, Your Honor.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) Were you aware of what the
grounds for the discipline was?
A. The ground for the discipline?
Q. Yeah.
A. Yes, sir, I was.
Q. And was the grounds for the discipline that you
didn’t get permission to do the interview?
[76] A. That is correct.
Q. Now, you were questioned by an investigator in
relation to that disciplinary proceeding; is that right?
A. Yes, sir.
Q. Now, where did that questioning take place?
 335a

A. In one of our interview rooms in the

investigative department of the sheriff’s office.
Q. Is that a big room?
A. No, sir.
Q. And how many -- where did -- small room? Is
that a room you’ve used? Is that a room you’ve used
before?
A. Several times.
Q. In what capacity?
A. Investigations.
Q. Were you interrogating a witness in a room
like that?
A. Interviewing -- interviewing witnesses and
suspects alike, uh-huh.
Q. Was the door open when you were questioned
about this?
MR. OTTOWAY: Relevance, Your Honor.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) Who interviewed you?
A. Excuse me?
[77] Q. Who interviewed you about this matter?
A. It had been Rick Cole.
Q. Rick? How do you spell the last name?
A. C-O-L-E.
Q. Did he seem happy about what you said?
MR. OTTOWAY: Relevance, Your Honor.
THE COURT: That’s overruled.
 336a

THE WITNESS: Seemed happy --

Q. (By Mr. Benjet:) Did he seem happy about what
you said to CNN?
A. He was professional. I wouldn’t say happy or
unhappy.
Q. Did he indicate that the prosecutors were
happy about what you said -- the Bastrop County
district attorney was happy about what you said to
CNN?
A. He was --
MR. OTTOWAY: Hearsay, Your Honor.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) During that interview, did you
ask Cole where this came from, the disciplinary
proceeding?
A. I’m not sure I understand.
Q. Did you ask the interrogator, Officer Cole, why
you were being disciplined?
A. No. That point was made pretty clear.
[78] Q. Did you ask him where the impetus for
the discipline was coming from?
A. The what?
Q. Where the idea to discipline you, where the
complaint was coming from?
A. I don’t recall anything like that.
Q. If you saw a video of that interview, do you
think that would refresh your recollection?
A. I have not seen an interview.
 337a

Q. But, if you saw it, would that refresh your

recollection?
A. Of my interview with Cole?
Q. Yeah.
A. Oh, I’m sure it would.
MR. OTTOWAY: Your Honor, I think they are
going to attempt to refresh his recollection by playing
a video on the screen. I don’t believe that that’s
appropriate. It should be presented to him
personally.
THE COURT: I agree.
UNIDENTIFIED SPEAKER: Show it to him
before --
THE COURT: Sure. Yeah.
MR. OTTOWAY: Then, Your Honor, if we may
approach.
[81] this might be a good time to take lunch so that
he can review it and we can come back.
THE COURT: Y’all agree?
MR. BENJET: No objection.
THE COURT: How much time do y’all
normally take around here? An hour?
12:30. We’ll see everyone back at 1:30.
(Lunch break.)
THE COURT: You may continue, sir.
MR. BENJET: Thank you, Judge.
 338a

THE COURT: And let me say this before you

start: Officer Davis, I need for you to speak up a little
louder so the court reporter and I can hear you.
THE WITNESS: Yes, sir.
THE COURT: You might have to lean into
that microphone.
Go ahead, please.
Q. (By Mr. Benjet:) Now, Officer Davis, you
testified earlier that you received two weeks’
suspension without pay?
A. I will say two weeks, but it was -- it was four
weeks.
Q. Now, when you agreed to do the CNN
interview, did you take time off work for that?
A. No, sir.
[82] You mean, did I take the day off? What
are you asking?
Q. Was it a weekend or a weekday that you --
A. It was a weekday.
Q. Did you tell your supervisor that you were
going to do this interview?
A. No.
Q. Was there a sergeant of any -- at the sheriff’s
office that you went and told?
A. If I would have told somebody, there would
have been, yes, sir.
Q. And who would that have been?
A. Sergeant Wofford.
 339a

Q. Do you remember if you did or didn’t tell

Sergeant Wofford?
A. I did not.
Q. Would you have told Investigator Cole that you
told -- not asked permission, but told your sergeant
that you were doing this interview?
A. I don’t recall that.
Q. If you watched a videotape of your interview
with Investigator Cole, would that refresh your
recollection?
A. If I watched the videotape, it would.
THE COURT: Excuse me a minute.
[83] Go ahead and have your seat again,
Counsel.
MR. PHILLIPS: Thank you, sir.
THE COURT: All right. I’m sorry for that. Go
ahead.
MR. BENJET: Judge, in the interest of
efficiency, we probably will refresh his recollection,
but I want to go through a number of questions
before we get there.
THE COURT: All right.
Q. (By Mr. Benjet:) Now, when you did that CNN
interview, did you think at the time you were doing
anything wrong?
A. No.
Q. In fact, you testified you thought you were
helping be correct and accurate?
A. That’s correct.
 340a

Q. And now, once this came out, though, you got

disciplined; isn’t that true?
A. This is true.
Q. And you learned that came from the DA to the
sheriff to internal affairs; isn’t that true?
A. Yes, sir.
Q. Now, how many times were you interviewed by
internal affairs? How many times were you
interviewed [84] by internal affairs?
A. Just that one time.
Q. If there was video of you having two
interviews, would you doubt that that was the case?
A. I was spoke to one time.
Q. Well, is it possible that the interview began
and then you brought in a representative, and then it
continued after you brought in a representative?
A. That’s exactly how it was.
Q. Okay. Now, were you made aware, at the time
of the interview, that if you did not cooperate you
could lose your job?
A. Yes.
Q. And were you made aware, in fact ordered,
that if you discussed the matter that you could lose
the job -- your job?
A. I was told --
MR. OTTOWAY: Hearsay, Your Honor.
THE COURT: That’s overruled at this time.
Go ahead.
 341a

Q. (By Mr. Benjet:) And so, at that time, you were

told that if you discussed the matter you could lose
your job?
A. I was told not to discuss it.
Q. And this is the disciplinary proceeding that
[85] came from the DA to the sheriff to the internal
affairs?
A. Yes.
MR. OTTOWAY: Personal knowledge, Your
Honor.
THE COURT: That’s sustained.
MR. BENJET: Well, I think it was answered
already.
THE COURT: We’ll strike the answer, then.
MR. OTTOWAY: I move to strike the answer,
Your Honor.
THE COURT: Done, strike.
Q. (By Mr. Benjet:) Now, you’ve testified -- just to
kind of catch up, but, when you gave that interview,
there was no intention to help Mr. Reed in any way --
THE COURT: Time out for a minute. Which
interview was it, internal affairs, or was it CNN or --
MR. BENJET: Oh, excuse me.
Q. (By Mr. Benjet:) You have testified that, when
you did the interview with CNN, you had no intent to
help Mr. Reed or his case?
MR. OTTOWAY: Asked and answered, Your
Honor.
THE COURT: That’s overruled. Go ahead.
 342a

Q. (By Mr. Benjet:) Is that correct?

[90] overruled, Your Honor?
THE COURT: Yes, it is.
DIRECT EXAMINATION (CONTINUED)
BY MR. BENJET:
Q. All right. I am going to show you Applicant’s 2.
Let me put it on the screen so we can all look at it.
Now, do you see the first finding up here? It
says, you know, that it was:
“Sustained-The evidence obtained in the
investigation established that the employee
committed the alleged misconduct. Investigator
Davis did provide what he felt was testimony
regarding this case” --
THE COURT: Time out a minute. I have
known all my career that when lawyers are reading
they read faster than court reporters can take it
down. So if you’ll slow down just a little bit, then
read it so she can take it.
MR. BENJET: I’ll do my best.
Q. (By Mr. Benjet:) -- “regarding this case” --
MR. OTTOWAY: Your Honor, again, I’m not
sure why we’re reading it. It’s been admitted.
THE COURT: That’s all right. We are going to
read it. That’s what everybody wants to do. Let’s do
this. Get along.
[91] Q. (By Mr. Benjet:) -- “regarding this case
that could bring influence to a cause for a retrial,
even though this testimony was never solicited by
previous prosecution or defense teams. Davis did not
 343a

prepare a supplemental report or notify his

supervisor regarding the need for such report.”
So that’s the first finding.
Now, was it your intent to influence or cause a
retrial?
A. No.
Q. You’re pretty well known in the Bastrop
County Sheriff’s Office, aren’t you?
A. Yes, sir.
Q. I mean, do you think anybody would really
even suspect that you would ever intend to cause a
retrial in this case?
A. I don’t know --
MR. OTTOWAY: Personal observation, Your
Honor.
THE COURT: That’s sustained.
Q. (By Mr. Benjet:) Second finding was:
“Bastrop County Rule of Conduct 21. Public
Statements. Sustained-Investigator Davis did,
without Sheriff approval, make statements to a
public media that were recorded regarding the above
case with the [92] knowledge his statements would
be used in a televised media documentary.”
Now, we’ve been talking about this. Have you
been able to think about whether you had discussed
this with other members of the office before you gave
the interview to CNN?
A. Did I discuss it?
Q. Yeah.
 344a

A. No, I did not.

Q. Okay. Were you aware that other -- that
filming was done in the Bastrop County Sheriff’s
Office with regard to this program?
A. I was made aware of that after the fact, yes,
sir.
Q. And so permission had to have been given to
somebody?
A. At the time it was, I believe, the sheriff’s clerk.
Q. All right. Let me take you back to Applicant’s
Exhibit 1. And I had handed up my copy, so if I can
grab that off of the clerk’s desk here.
And I just want to clarify this, in case we
didn’t get that. Now, you have adopted this -- the
statements in this exhibit as what you told CNN; is
that right?
[93] A. Pretty close, yes, sir.
Q. Well, pretty close? Is there anything that’s
inaccurate?
A. There is a couple words that look like they
came off of --
Q. Well, let me direct you to Page 31, then, just to
make sure that these are not words that you have
any issue with. So do you see, in the middle of the
page, it says:
“She would go to bed at 9:00, 8:00/9:00 at night
in order to get ready for the shift the next morning.
So he didn’t want to disturb her. That was kind of
their sleeping arrangement. You know, didn’t want to
just come in and disturb her. And so that was part of
 345a

the other reason why he said he didn’t come home,

you know, uh, earlier than he did.”
That’s a statement you will adopt?
A. Yes, sir.
Q. And the “He said he didn’t come home,” who is
the “he” there?
A. That would have been Jimmy Fennell.
Q. Now, let’s go back to Applicant’s Exhibit 2,
which is the disciplinary findings. And I’m going to
show you again, if you remember, the part we talked
about, “Davis did not prepare a supplemental report.”
[94] Do you remember that finding that we
talked about?
A. Yes, sir.
Q. Now, if you were required -- if you had nothing
to do with an investigation, would you be required to
prepare a report?
A. That would be correct. That would be a correct
statement.
Q. Well, I’m sorry. If you had nothing to do with
an investigation, would you be required to prepare a
report?
A. No.
Q. If you could turn to Tab 5 in the binder. And
I’m going to represent that these are documents
produced by the Bastrop County Sheriff’s
Department.
MR. BENJET: And, I think -- would the State
stipulate these are business records?
 346a

MR. OTTOWAY: I think these were actually

produced by the office of the Attorney General
because it has the Bates stamp. It may be duplicates
of what we produced.
MR. BENJET: Sure.
MR. OTTOWAY: But, no, I do not -- I stipulate
to authenticity.
THE COURT: I accept it.
[113] THE COURT: Any redirect?
REDIRECT EXAMINATION
BY MR. BENJET:
Q. Now, everything in that CNN transcript that’s
Applicant’s Exhibit 2 that you adopted as what you
told CNN, that’s what Jimmy Fennell told you; isn’t
that right?
MR. OTTOWAY: That’s a very vague question,
Your Honor.
THE COURT: Yeah. Try that over again,
please.
Q. (By Mr. Benjet:) The statements that you told
CNN that Jimmy Fennell told you in that transcript,
you told those to CNN because that’s what Jimmy
Fennell told you; is that correct?
A. Yes.
Q. So he told you he went to the baseball field?
A. He told me he was at the ball practice.
Q. Yeah. And he told you he went out drinking
with other officers?
A. He said they --
 347a

MR. OTTOWAY: Your Honor, I think we’re

going beyond the scope of what I was asking.
THE COURT: That’s overruled.
Q. (By Mr. Benjet:) And he told you he went out
[114] drinking with other officers?
A. He said that he drank after practice.
Q. And he told you that he came back after Stacey
Stites was asleep?
A. I want to say that’s an assumption, but,
again --
Q. Well, I mean, let’s take a look at what you
adopted. And we went over this before, but I guess --
well, let’s do it one more time.
Now, you adopted the statement that, you
know, didn’t want to just come in and disturb her,
and so that was part of the other reason why he said
he didn’t come home, you know, earlier than he did.
And that’s the statement you adopted, correct?
A. I adopted that.
Q. And when I asked you who “he” was, you said
that was Jimmy Fennell?
A. That’s correct.
Q. And because that’s what Jimmy told you?
A. That’s correct.
Q. Now, you knew Jimmy Fennell pretty well, or
you thought you did, in March of 1996, didn’t you?
A. I knew Jimmy Fennell well.
Q. I’m sorry. Could you repeat?
 348a

A. I knew Jimmy Fennell well.

[125] A. Yes.
Q. And do you recall -- the capital murder trial of
Mr. Reed was 1998; is that right?
A. Yes, sir.
MR. BENJET: And, Judge, if you’ll permit me
to kind of go through this with the witness on Exhibit
2, I think that’s going to be the easiest way to try to
get through.
THE COURT: That’s fine.
Q. (By Mr. Benjet:) All right. Officer Davis, I want
you to take a look at -- well, first off, take a look at
Page 29 of Exhibit 2 (sic). Now, if you look at the line
here that starts at 17:00:04, the line that I’ve just
pointed on, and do you see here where it says, “When
Jimmy -- when Jimmy talked to me about the night
before”?
Now, there, was that again something that Jimmy
-- you attributed a direct statement from Jimmy
Fennell?
A. Yes, sir.
Q. Okay. So when Jimmy Fennell said something
to you, and you were not making an assumption, you
are attributing it to his speech, you made that
statement; is that correct?
A. We did talk, but I would still say it was an
[126] assumption based on some of the conversation,
yes.
Q. Let me -- so you’re saying it is an assumption
based on what Jimmy Fennell told you?
 349a

A. There are facts, and then there’s parts that,

like I am saying, that’s an assumption.
Q. Okay. Well, let’s kind of walk through this
here. So now, if you go to Page 30, and about middle
of the page. And I am just going to point this to you
here, “Whatever their little arrangement,” it says in
the middle here, “but I remember him making
comments about he should have got up out of bed.”
A. Yes.
Q. So you said he’s making comments. You are
attributing those to comments. That’s not an
assumption, correct?
A. That would -- that would be true.
Q. Okay. Now, go to the following paragraph at
the bottom there, where it says, “The night before,
based on what he told me, uh, they -- him and a
couple of other police officers.”
Now, here you say, “Based on what he told
me.” That’s not an assumption?
A. That is not an assumption.
Q. Okay. Now, let’s go to the next page, 31. And
let me clear this up. And so one of the things that he
[127] told you in this paragraph here on 30, “based
on what he told me” was that he was drinking beer?
A. Yes.
Q. He told you that?
A. Yes, sir.
Q. That’s not an assumption?
A. That’s not an assumption.
 350a

Q. Now, you then say -- I am on the top of 31. Do

you see that?
A. Uh-huh.
Q. And you say, “I don’t know how -- what
time...somebody was to ask me a direct question
what time they got home that night, I couldn’t
answer ‘cause I don’t know that. But it was later that
night after practice.”
So you’re very clear, when you’re saying that,
that you don’t know; is that correct?
A. It doesn’t say it exactly. I just --
Q. Sure. But was it your intent in saying those
words to make it clear to the person who you were
being interviewed by that you didn’t know exactly
the answer to that question?
A. That would be correct.
Q. Now, let’s go to the next paragraph. “So, um, I
would assume definitely 10:00-ish, 11:00, maybe at
[128] night.”
That’s an assumption, correct?
A. That is an assumption.
Q. And you said it was an assumption. You told
him that?
A. Yes.
Q. And now -- and you testified earlier. You were
careful when you were making assumptions -- or
excuse me, when you were -- didn’t know something,
that you would tell them you didn’t know it. That
was your testimony before; isn’t that right?
A. That is correct.
 351a

Q. And then the bottom of that same paragraph,

and so -- and you’re talking about the sleeping
arrangements. And you say, “You know, didn’t want
to come in and disturb her. And so that was part of
the other reason why he said” -- do you see that, “why
he said he didn’t come home”?
And so just like you did before, when you are
attributing something to Jimmy Fennell’s
statements, you attribute it to his statement; isn’t
that right?
A. Where are you seeing that?
Q. Oh, sure. “You know, didn’t want to just come
in and disturb her. And so that was part of the other
reason why he said he didn’t come home.” And so
there [129] you are attributing that to a statement
by Jimmy Fennell just like you did before; isn’t that
right?
A. That would be correct.
MR. BENJET: Pass the witness.
THE COURT: Anything else?
MR. OTTOWAY: Please, Your Honor.
FURTHER RECROSS-EXAMINATION
BY MR. OTTOWAY:
Q. Did Jimmy Fennell tell you what time ball
practice ended?
A. No, he did not.
Q. Did Jimmy Fennell tell you what time he got
home on April 22, 1996?
A. No, he did not.
 352a

Q. Did Jimmy Fennell tell you what time Stacey

Stites went to bed?
A. No, he did not.
Q. And by that I mean that night --
A. No, he didn’t.
Q. -- April 22nd?
A. No, he did not.
Q. Did Jimmy Fennell tell you how many beers he
had on April 22, 1996?
A. No, sir, he did not.
Q. And so everything we just covered right there,
[130] all those prior questions, those were all based
on assumptions, were they not?
MR. BENJET: Objection. I don’t think he -- I
think he just answered, no, he did not. I don’t know
what he’s assuming.
THE COURT: That’s overruled.
Q. (By Mr. Ottoway:) So the answers that you
provided to CNN with respect to the questions that I
just went over with you were all based on
assumptions, correct?
A. That’s correct.
Q. And some of those assumptions are when
Stacey Stites would normally go to bed?
A. Yes, sir.
Q. Correct?
A. That’s correct.
 353a

Q. And what time your daughter’s Little League

practice ended?
A. That would be correct.
Q. And so, just to be clear, you have no personal
knowledge of any of those times, correct?
A. I have none.
MR. OTTOWAY: Nothing further, Your Honor.
THE COURT: Anything else from you?
 354a

DRS PRODUCTIONS
“DEATH ROW STORIES”
INTERVIEW WITH CURTIS DAVIS
MEDIA ID: THS_62415_09.OGG
TC_16_25_11_20160414_DAVIS_1,
TC_16_58_18_20160414 _AVIS_2

MALE #1:
16:25:36:00 Tell me your name and what your
title is?

CURTIS:
16:25:41:00 My name is Curtis Davis. I work at
the Bastrop County Sherriff's office
as a Criminal Investigator.

MALE #1:
16:26:18:00 So take me back with you to the mid
nineties and tell me what Bastrop
was like.

CURTIS:
16:26:25:00 Bastrop back there in the mid
nineties was very uh, a rural type of
setting. Uh, we were basically the-
the room and board for Travis
County. Uh, people came and lived
there and then worked in Travis
County, for the most part Austin.
And uh, so there wasn't a lot to even
 355a

do. Matter of fact the only restaurant

that was open 24 hours there in
Bastrop at the time was the Water
Burger. And uh, the Pig Grill and uh,
so uh, those are the only two things
that you had a choice of if you were
working nights in [2]Bastrop County
because those were the only two
things open.

CURTIS:
16:27:05:00 All the other convenience stores and
everything closed down overnight. So
uh, to kind of give you a setting of
the idea that's behind what was
available back there it was large
ranching, farming community, rural
type living, rural type subdivisions
and uh, that was pretty much the
makeup of the 1990s of Bastrop.

MALE #1:
16:27:28:00 Do you know what the- I mean they
call it the Lost Pines Region and I,
uh- This is a test. I'm just curious if
you know what uh, Lost Pines are?

CURTIS:
16:27:37:00 Lost Pines would be that you're
driving on the highway and all of a
sudden there's a bunch of lo-lost
pines. There's a bunch of trees that
just kind of seemed like they didn't
quite belong and it would be the-the
 356a

pine trees of that area. And uh, so

that's pretty much where the Lost
Pines came from.

MALE #1:
16:27:54:00 Hmm. So when did you get involved
in uh, the police force. I mean you
were in [3] training. Well let me
start; when-when did you first meet
Jimmy Fennell?

CURTIS:
16:28:07:00 Uh, I had started working, when I
met Jimmy Fennell I had started
working at the Bastrop County Jail
and uh, he was also a-a jailor at the
time and I think he hired on maybe a
week earlier than I did. And uh, we
worked the same shift together.

MALE #1:
16:28:24:00 Didn't you guys, uh, go to the
academy together?

CURTIS:
16:28:27:00 We later went on to the academy
together. Uh, I think it was probably
about a year later uh, the Bastrop
County Sherriff's Office sponsored an
uh, a police academy there at the
office which was pretty handy. And
uh, at that point me, Jimmy, several
other uh, people that worked the jail
 357a

and around the community uh, of

Bastrop uh, went to that academy.

MALE #1:
16:28:51:00 So if you're jailers together, does that
mean you guys get to spend a lot of
time together or are you working
different shifts or what's it like?

[4]CURTIS:
16:29:01:00 As a jailor you get to spend a lot of
time together. Um, the shifts that we
worked at Bastrop back then and
still currently today were 12 hour
shifts. And uh, you would work a
rotation of every other weekend off
which consisted of a Friday,
Saturday and Sunday. And the
rotation on Monday and Tuesday
would also fall into that as far as uh,
being off on Wednesday and
Thursday. So it just rotated over and
over again but we worked 12 hours
shifts and yes we were together. Uh,
back in those days uh, the jail
basically when you walked in it shut
the door behind you and you were
there all day.

CURTIS:
16:29:40:00 And it shut the door behind you
when you walked out. Um, they fed
us. You know we ate at the jail; we
worked the jail, if we had to go to the
 358a

restroom it was in the jail. Um, so

yes we spent a lot of time together.

MALE #1:
16:29:57:00 So tell me about Jimmy, what-what
kind of guy was he like?

CURTIS:
16:30:01:00 Jimmy Fennell was a very quiet
individual. I mean he- I often-often
sensed him as the follower type. He-
he uh, was very quiet. [5] Uh, he-he
enjoyed the fact that he was looking
to become a police officer some day.
Uh, that's what we talked about uh,
that's what we visited about. Uh, it
was-it was a goal. And uh, that's got
to start somewhere and for both of us
it seemed like the jail was a good
start. It was uh- It was back then
real easy to get hired on particularly
Bastrop in the jail.

CURTIS:
16:30:40:00 Um, so it was a good fit. We got on,
we started working. Uh, Jimmy is
such you know took care of his
people, took care of his inmates. I
didn't know him necessarily to be
mean or anything like that. Um, he
took care of his business you know.
Uh, very precise, he liked being
precise in his paperwork and things
 359a

along those lines but a very-very laid

back, very quiet person.

MALE #1:
16:31:10:00 When you say he was more of a
follower, tell me a little bit what you
mean?

CURTIS:
16:31:17:00 He-he wasn't the type to jump up
and rah-rah in front of a crowd. He
wasn't the one to jump up and say
uh, "This is what we ought to do,
gang charge ahead, let's go." He
wasn't that guy. Um, he was more
the guy, "Let's sit back and see what
they're fixing [6]to say. Let's see
what they're fixing to tell us to do.
You know let's-let's-let's follow
directions, follow directives." That's
the guy I'm talking about.

MALE #1:
16:31:41:00 Why do you think Jimmy wanted to
be a-a-an officer so-so badly?

CURTIS:
16:31:48:00 Uh, Jimmy wanted to be an officer is
a good question. I-I'm not sure that I
even have an answer for that. I know
we compared thoughts um, back
then, back during those days. Of
course you know the-the-the little
show of uh, COPS. And that was a
 360a

very prevalent show on-on TV at the

time and-and for-for him he was
obviously way younger than I was
and-and yet our interests were still
going towards the same directions
and that was that we had a goal that
we wanted to meet. And uh, probably
the interest in seeing COPS.

CURTIS:
16:32:30:00 Having-having and being around
cops in my family uh, we just talked
about that all the time. And then of
course once you started working in a
corrections environment you deal
with the cops on a daily basis and
you see them and you see them what
possibly on what you would like to
be; your dream. And [7] uh, that's- it
kind of drives you a little bit more I
guess.

MALE #1:
16:32:55:00 What is it about that that you think
was attractive to him?

CURTIS:
16:32:59:00 Being a police officer? The honest
opinion of I believe anybody that
would want to be a police officer um,
again I can't speak for him. I don't
know exactly why he wanted to be a
police officer. I-I would say that there
is a certain amount of uh, prestige
 361a

you know a-at least back those days

uh of being a police officer. You're a
police officer, you're a cop and
particularly you know in a rural area
uh, the respect level for law
enforcement is generally pretty high.
And so to have a respect level of-of
people of the community, people that
you associate with, you got the store
with.

CURTIS:
16:33:42:00 They see you, they know you're the
police officer in the area; it-it was
probably alluring because of that
factor you know for-for Jimmy, you
know.

MALE #1:
[8]16:33:56:00 Did uh, did he tell you when he
started seeing Stacey, do you
remember if he talked about that?

CURTIS:
16:34:03:00 Yes he talked about that.

MALE #1:
16:34:04:00 Tell me about that?

CURTIS:
16:34:04:00 Jimmy-Jimmy talked about seeing
Stacey.
 362a

MALE #1:
16:34:06:00 I'm sorry you're going to have to
start over, Jimmy?

CURTIS:
16:34:08:00 Yeah Jimmy talked about seeing
Stacey uh, probably the first time he
met her. Um, I believe the story goes
and-and you're going to have to
excuse. It's been 20 years but I
believe the story goes that uh, he'd
met her at a softball game and they
talked, and talking let to going and
getting drink together. Uh, I believe
the drink was non-alcoholic; I believe
it was actually soda water and that's
what he made fun of. He said, "We
went and got a drink together and all
we got was a coke." He said but he
said "She was pretty cool. She's
pretty, she's attractive, and-and she
was very- seems very [9] outgoing."
And he made a comment that first
conversation with me that has
always stuck in my mind and that is
that he said he could see himself
being with somebody like this the
rest of his life.

CURTIS:
16:34:58:00 And I just kind of looked at him and
said, "I've been married for a long
time, you might want to look into
this." You know. So.
 363a

MALE #1:
16:35:05:00 And do you remember when you first
met her?

CURTIS:
16:35:08:00 Uh, the first time I met her she came
to one of our academy classes.

MALE #1:
16:35:14:00 Can you start that over and use her
name?

CURTIS:
16:35:15:00 Yes, yes. The first time I met Stacey
she came to one of our academy
classes and uh, came to visit Jimmy,
drop off something Jimmy; dinner or
something. I don't really recall. Uh,
but she came up there and he
introduced me directly to her at that
point. And again big smile, big eyes
uh, a very attractive young lady. Um,
I could see why [10] he was-he was
you know looking forward to being
with her someday maybe.

MALE #1:
16:35:45:00 So you and your wife and family got
to know her as well, got to know
them as a couple; tell me about that?
 364a

CURTIS:
16:35:53:00 Sure. My wife and my family we got
to know Stacey and uh, even Jimmy
a little bit more through uh, the
ongoing medium of partners. And
we-we became very good friends.
Um, at the time my friends were my
brothers. I didn't really have
anybody outside of my family as
friends. This was the first friend
outside of high school that-that I
actually enjoyed being around. We
shared the same interests uh, we-we
went hunting, we went shooting, we-
we went fishing. Um, these were
things we did. And of course once he
started dating Stacey then Stacey
was along on some of those
situations.

CURTIS:
16:36:34:00 Uh, the hunting, the shooting, the
fishing. Uh, just sitting around
shooting the bull. You know uh, she
would be around for some of those
and uh, so we got to talk to her and
interact with her. Um, at the time
my-my daughter was 12 years old
and she was involved and volleyball
and-and sports and [11] stuff at
school. And learned that Stacey had
also been involved in volleyball and
sports at school and so they kind of
hit it off. And-and she kind of took
 365a

my daughter as a little friend, type of

thing and every time she come over
they talked.

CURTIS:
16:37:12:00 So it-it was a very pleasant
relationship.

MALE #1:
16:37:17:00 So it sounds like you um, like you
really got to know Stacey a bit. Tell
me-tell me your impressions of her,
what she was like uh, you know her
character. What was Stacey like?

CURTIS:
16:37:31:00 Stacey's character was-was one of
uh... I could see her fitting in very
well at the time with Jimmy. She
was somebody first off I could stand
to be around. So it was-it was
pleasant to have her... if I'm going to
be with Jimmy, if we're going to do
guy stuff together then it was always
nice to have our women get along
together too. And of course my wife
was older than Stacey too but they
were talking. They were able to talk.
They were able to visit. They- she
got along with-with my family. That
was first and foremost very
important. Um, the [12] second part
of that would be her personality was
just very outgoing.
 366a

CURTIS:
16:38:14:00 Very outgoing. Uh, the first time she
came over to our home we had had a
dinner and it was-it was and
fortunately dinner at my house
there's plates everywhere I mean
because there's a big family. And
Stacey was the first one to jump up
and start cleaning the table off you
know. And-and-and fully assisted my
daughter, by telling my daughter. It
just happened my daughters night
and my-my boys wash cl- wash
dishes too but uh, it just happened to
be my daughters night to wash the
dishes. And uh, she jumped up and
told Kim, "I'm going to help you."
And they did, they started helping
each other. And uh, I remember
laughing and cutting up and I mean
we're talking about a 12 year old and
what she was 19, 21 years old
something around there at that time.

CURTIS:
16:38:56:00 And, uh, they're giggling and cutting
up just like little girls you know at
the sink. And I remember those
pictures, I remember those thoughts
and they're very pleasant. Um, again
I... thirdly I guess I would say if I
was looking for somebody for my
buddy, my friend at the time I would
want somebody [13] that-that was
 367a

going to take care of him. That was

going to care about him and his-his
goals and his dreams and that's
exactly what she did. She promoted
him, she pushed him uh, she
directed. She would get on him with
that finger and uh, Jimmy did it
because he knew that's what- that
was what was expected of him.

CURTIS:
16:39:41:00 And Stacey expected him to-to do the
best he could and-and he always did.
You know under her rule. So um, I
guess that would be the three top
items that I would probably list as
far as Stacey's uh, personality and-
and how she dealt with people.

MALE #1:
16:39:57:00 Hmm, now how did you find out that
she was missing?

CURTIS:
16:40:07:00 I'd actually come to work that
morning and when I walked in I saw
Jimmy standing in what was kind of
our break room there... well it's not
kind, it is the break room there at
the Sherriff's office and uh, that was
odd. First off I knew he didn't work
there anymore, what is he doing
here? And he was standing by
himself and I said basically exactly
 368a

that; "What are you doing here?" And

his ex- first words out of his [14]
mouth was "Stacey's missing. We
can't find her." "Oh okay." And as I
took that in um, I didn't know what
to think. You know we-we live in a
world particularly in law
enforcement where the first thing we
think of is the criminal side.

CURTIS:
16:40:53:00 And so what could've happened to
her because she-she also in a
personality trait that she had was
working very hard at the time at-at
the local store that we have there in
town. And um, early hours, late
hours; that was nothing for her. And
for her not to be at work or for them
not to be able to find her at work was
totally outside the pocket. And so
that would've been the first real
feeling of loss that's something's not
right. So.

MALE #1:
16:41:31:00 Let me take you back a second. Did
uh, did he tell you when they had
first gotten engaged? Do-do your
remember that or?

CURTIS:
16:41:31:00 Oh he talked about that all the time.
 369a

MALE #1:
16:41:31:00 What-what did he talk about when
he talked about it.

CURTIS: [15]
16:41:41:00 Yeah he... can I get a drink.

MALE #1:
16:41:47:00 It's a weird way to have a
conversation I know.

CURTIS:
16:41:50:00 Yeah, I know where we're going
though. Jimmy approached me and
told me that uh, he had uh, finally
decided that Stacey was going to be
the one and that they'd actually
talked about marriage. And he told
me that uh, he was going to ask her
to marry him and that uh, they
would be engaged roughly probably
by the plan uh, what would be about
a year.

MALE #1:
16:42:20:00 Cool.

CURTIS:
16:42:20:00 And uh, that's kind of how I was told.
And then uh, I believe we had a
dinner...
 370a

MALE #1:
16:42:26:00 Sorry.

CURTIS:
16:42:42:00 We did a dinner uh, sometime later
and kind of... because we always had
dinners to have official things. You
know and-and you know my family,
baptisms, graduations, things [16]
like that; well this was one of those
dinners. You know it was-it was
important to us, it was important to
the family and so we had a fish fry
and we invited them both over and
you know she got to show us the ring
and she was you know exhibitant
[PH] to my daughter you know looky
here and just like giddy little girls. I
mean it just-it was a very happy
moment.

CURTIS:
16:43:16:00 And uh, we had a-we had a big feed
that night, big dinner and uh, and
from there we knew they were-they
were going to be together.

MALE #1:
16:43:26:00 Now Stacey was working real hard; I
think she had switched to the
morning shift. Tell me why Stacey
was working so hard at the time?
 371a

CURTIS:
16:43:34:00 Stacey was working pretty hard at
the time all of this had-had come to a
head and that is that um, she was
working at the store and had
changed her hours so that she could
make a little bit more money uh, so
that she could help support further
her own wedding because her mother
didn't have a whole lot of means at
the time. And so she took it upon
herself to-to pay for that wedding.
[17] And instead of just saying "Hey
let's run down to the JP and go get
married for 50 bucks?" or whatever it
was back then. She still wanted to
have that big wedding uh, wedding
dress, the-the reception, the-the little
girl dream I guess you would say.

CURTIS:
16:44:17:00 And because of that um, she did take
on extra-extra duty, extra time and
extra money because she took these
shift uh, differential.

MALE #1:
16:46:40:00 Tell me again why she was working
so hard?

CURTIS:
16:46:42:00 Stacey was working pretty hard at
the time uh, uh, of their engagement
and just after because she was uh,
 372a

trying to uh, pay for her own

wedding. Uh, her mother was...
didn't have a whole lot of means at
the time and she just took it upon
herself uh, to-to talk to the store
management and see if she could do
something to increase her pay and-
and her-and her hours. And so she
started going in early in the
morning. Got some shift deferential
because of it and uh, uh, she was
working uh, longer hours to make
more money. And it as all to go to
buy her own wedding dress and
things like that.

[18] CURTIS:
16:47:23:00 She could've gone and him-him and
her could've gone to the-to the JP
and spent 50 bucks and-and been
done with it but she really wanted
that little girl dream of the big dress,
the big reception. You know the little
pomp and circumstance type thing.
And-and you know most of us guys
can't necessarily relate to it but uh,
you know having a-a young girl
myself I-I was in the same area. So
um, I understood it by the time I had
to go through it with my own
daughter a little bit better so.
 373a

MALE #1:
16:47:53:00 Mm-hmm. Um, now through my
notes you had said that um, that he
called you that morning um, when
she disappeared. I'm not sure
whether uh, he called you or he just
showed up?

CURTIS:
16:48:11:00 No, he showed up. It wasn't... If I
had said it would've been- that
wouldn't have been true.

MALE #1:
16:48:16:00 Okay.

CURTIS:
16:48:16:00 So um, the way I found out was when
I walked through that-that side
employee door and I [19] turned to
go to the jail. Where we work at
there's a break room right there and
I saw him there. And like I said it
struck me as hey what are you doing
here, you know type of thing because
it-it really was odd for him to be
there. Not to mention the fact if he
was there he would've been there as
a police officer and he'd have been in
uniform. Ah, because he'd already
starting working for Gideon's at that
time. And uh, he was not, he was in
street clothes. So that-that
 374a

immediately something-something
wasn't right.

MALE #1:
16:48:54:00 Do you remember what time that
would've been?

CURTIS:
16:48:56:00 It was early in the morning. I would
say around eight o'clock in the
morning maybe; somewhere around
that timeframe. And uh, um, it just
was unexpected to see him there at
that time of the morning and
particularly in street clothes and not
in uniform. So.

MALE #1:
16:49:14:00 And what did he tell you and how did
you react?

CURTIS: [20]
16:49:17:00 Well once I saw him in that break
room he was standing by himself and
my reaction was again uh, kind of
why are you here? You know uh,
kind of half-heartedly, "Why are you
here?" You know. And uh, his direct
comments were to me that-that
Stacey was missing and that she
didn't show up to work. That's all.

MALE #1:
16:49:41:00 And how did you react?
 375a

CURTIS:
16:49:42:00 Something's up, something is wrong
because the reaction that I had was
that something was wrong and that
uh, something wasn't right and it
was based on probably related to my
job, my atmosphere of law
enforcement that we always probably
think of the criminal side before we
think anything else. And uh, I also
knew at the time that Stacey was
very diligent in going to work and
showing up to work and being on
time and all that- those type of
things. And for her not to have been
at work or showed up on time that
that was-that was way outside the
pocket for her.

MALE #1:
16:50:27:00 And how was Jimmy behaving,
feeling and?

CURTIS: [21]
16:50:32:00 He was very anxious.

MALE #1:
16:50:34:00 Who?

CURTIS:
16:50:34:00 Jimmy. Jimmy was very anxious
that morning when he had told me
this. Um, you could see in his eyes,
you could see the movements that
 376a

obviously over the years now it

means more to me than it did even
maybe even then. But uh, the
movements and the-and the-the body
language that he was giving was one
of high anxiety. Something was
wrong. And he sensed it and yet he-
he didn't directly say it. He knew
something was wrong.

MALE #1:
16:51:09:00 And tell me how you found out when
they found his truck?

CURTIS:
16:51:15:00 We had been at the office for a little
while just because that's I think if I
re-if I remember-if I remember right
Jimmy was told when we were find-
when we found out about the truck...
When we found out about the truck
Jimmy was told that uh, he had been
told already to stay at that little
break area. Don't remember exactly
who he was waiting on at the time. I
don't remember if it was city police
uh, Aaron the-the [22] Sherriff's
Office Investigators, uh, but he was
there and he had been told to stay
there. Well one of the investigators
from the Sherriff's Office and I do not
recall which one at the time. Uh,
came and told him that uh, they had
found the red truck.
 377a

CURTIS:
16:51:57:00 Jimmy's red truck. And with that
being known immediately that's the
first clue or as you would say it. Uh,
well wherever that truck is she needs
to be close by. And so that was the
response we had. Um, he had came
over to the Sherriff's Office that
morning in Stacey's moms car and of
course I had drove my own vehicle.
Um, we both drove separate vehicles
over to where the truck was found
near the high school. I had got
permission from my boss to stay with
him. And be with him and uh, was
given that permission. So I left the
jail and went on uh, instead of
reporting to work that morning.

CURTIS:
16:52:40:00 And uh, we both pull up outside the
scene of where they had us stage and
uh, sure enough the truck was
parked over by what appeared to be
if I remember right a dumpster area
back behind the stadium.

MALE #1: [23]

16:52:53:00 And what was your first thought?

CURTIS:
16:52:59:00 Again the- My first thought again
was that a criminal element had
stepped into this. There's somewhere
 378a

something's not going to be right.

Um, is she going to be hurt? Is she
going to be uh, somebody will have
taken her? All these things start
going through your mind uh, it-it'd
be about like walking into a room
where your child's supposed to be
and that child's not there. And you
start rampantly running through the
house checking windows, doors
everything to make sure that the
child didn't get outside of the home.
And you find the child underneath a
bed. You know you're hoping for the
best but you are expecting the worst
and you are-you-you look and
prepare for the worst.

CURTIS:
16:53:46:00 And seeing that truck there vacant
parked where it was immediately
brought the worst ideas.

MALE #1:
16:53:56:00 Describe the scene for me in terms of
what you saw, what the truck looked
like, what they had Jimmy do?

CURTIS: [24]
16:54:03:00 When we got there to the truck uh,
obviously there was a couple of
investigators there and they were
taking their pictures and-and doing
their processing. Uh, one of the
 379a

things that became very quickly uh,

made aware of; I mean we weren't
there very long and Jimmy was
called over to the truck. And he was
asked uh, and I don't recall which
investigator did this. Uh, but one of
the investigators asked, "Jimmy tell
us what's not supposed to be in the
truck? What-what do you see?
What's out of place?" Um, and just
from a-a peering position you're
looking through an open door,
standing back from the door.

CURTIS:
16:54:44:00 Um, I remember him start making
comments that you know there was-
there was clothing uh, that was in
the back seat that probably shouldn't
probably have been there. There was
uh, and it was some of Stacey's
clothing. Um, there was uh, uh, what
appeared to be some form of a-a I
guess you would describe it as a
mucus or a-a type of uh, um, element
like that that was on the-the
floorboard that he said that was
there. And uh, it kind of looked like
sputum or-or mucus or something
along those lines.

MALE #1:
16:55:25:00 Bodily fluid.
 380a

[25] CURTIS:
16:55:26:00 Yeah bodily fluid. And it was on the-
it was on the floor uh, of the
floorboard. Um, the seat was all the
way back and the seatbelt was in
place. Uh, very common for people
who don't want to be wearing a
seatbelt; they'll lock it into place and
just ride on the seatbelt. Uh, that's
kind of what it appeared like; except
the seat was laid all the way back
also. Um, you could tell just by
looking that there was a hair print I
guess you would describe it uh, that
was directly over what would've been
the headrest area of this truck. It
was a small S-10 pickup truck that
had an extended cab.

CURTIS:
16:56:05:00 But yet if you laid the seat all the
way back and-and let's say where a
tall man or tallish person you
could've sat in that seat and your
head would've rested on the back
windshield. Uh, there's not a lot of
storage area behind the seat. I
believe it was only like that. So um,
that was something I would
recognize that seemed a little out of
the ordinary was the actual what
appeared to be hair print on the back
windshield caused by I couldn't tell
you; sweat, water, uh, some kind of
 381a

oil, grease; I-I don't know. But it was

obviously a hair [26] print. And uh,
where somebody's head had rested
against that back window.

CURTIS:
16:56:45:00 Um, there was nothing that I recall
Jimmy making a note of other than
the mucus on the floorboard. That
there was something of a mucus type
material that was on the floorboard.
Uh, everything else that said was
just kind of a disarray but nothing as
far as wasn't there that should've not
have been there other than that one
mark on the floorboard.

MALE #1:
16:57:13:00 I think there was also one of her
sneakers and an earring found in
there which you might not remember
but?

CURTIS:
16:57:20:00 Yeah, yeah and I don't remember
whether the sneaker and earring
were found by Jimmy or if they were
found by the investigators
themselves. Uh, I-I don't recall
seeing that but uh, again it's been a
while.
 382a

MALE #1:
16:57:34:00 Do you remember seeing anything
outside of the truck?

CURTIS: [27]
16:57:40:00 I-I-I remember us looking around the
truck; just walking around from a
distance outside of the truck and
unfortunately if you were to ask me
if I saw anything outside the truck
I'd have to tell you I do not-I do not
remember seeing anything there
outside the truck.

MALE #1:
16:57:59:00 And what was uh, Jimmy's... [NON-
INTERVIEW]

MALE #1:
16:58:11:00 What uh, do you remember what
Jimmy's reaction was to all this; to
seeing the truck, to seeing the...

MALE #1:
16:58:18:00 Condition things around.

CURTIS:
16:58:19:00 Where is she at? His reaction was,
"Where is she at?" He want-he
wanted to know where she was at,
when the truck was found, uh, again,
probably the worst thing in the world
that could happen sometimes to an
 383a

investigation is that the

investigation happens to a police
officer because there's a lot of
training that goes into the p-police
academies and the police officers'
field training and things along those
lines that are-that are directly
responsible for the reports in which
we write. So in order [28] to write
those reports in a way that they have
to be presented for court, they have
to be very meticulous. They have to
be precise, and because of that, we
automatically start asking questions
that normally people wouldn't maybe
have asked.

CURTIS:
16:59:05:00 He's asking those questions, and he
wants to know when the truck was
found, where- you know, who found
it. Uh, when-when it was seen, uh,
was anybody around the truck?
These are questions he's starting to
fire at the investigators and of
course, they're doing their job and
saying, "Well, the truck was found
this morning," and that was about all
he could get out of 'em is what time it
was found and the approximate time
it was first seen at-at-at that
location. And I want to say the first
time it was seen by memory was
around 5:00 if I recall.
 384a

MALE #1:
16:59:37:00 5:23.

CURTIS:
16:59:38:00 Yes, sir.

MALE #1:
16:59:40:00 Um, when... Let me jump back a
second. Uh, when you first came to
the Bastrop police department that
morning...

[29] CURTIS:
16:59:53:00 Sheriff's office.

MALE #1:
16:59:54:00 Sheriff's office.

CURTIS:
16:59:54:00 Mm-hmm.

MALE #1:
16:59:55:00 Um, did he tell you anything about
the night before what he was doing?

CURTIS:
17:00:04:00 Not then. When-when Jimmy-when
Jimmy talked to me about the night
before and some of the things that
had-had led up to her leaving that
morning to go to work, um, that was
pretty much after the fact. It was
after we were trying, and when I say
 385a

after the fact, I'm talking about once

we'd gone and seen the truck. Um, he
was basically excused. He was told,
"Look. You need to go wait. We're-
we're gonna be looking. We're gonna
be searching for her. We will find
her." And we're police officers. We
know that's what they're gonna tell
us. We knew that's what they
wanted us to do and we knew not to
check their authority.

CURTIS: [30]
17:00:45:00 So pretty much we did. We went
back to-to Giddings, and uh-uh, went
back to his apartment, and at that
point is when he started talking
about some of the things that had
happened the night before. Um, he...
It's the first time I really sensed that
he was having some kind of blame.
He blamed himself for allowing her
to drive to work that morning
because he had said that he had
actually been driving her to work;
that way he can keep the truck. He
can go pick her up later. Whatever
their little arrangement was, but I
remember him making comments
about he should have got up out of
bed and drove her to tr- drove her to
work that morning. He said
otherwise she wouldn't be missing.
 386a

MALE #1:
17:01:33:00 So why didn't he?

CURTIS:
17:01:36:00 The night before, based on what he
told me, uh, they- him and a couple
of the other police officers, I believe,
that were part of a little league
coaching group uh, had consumed a
little bit of alcohol. Uh, I won't say
they were drunk 'cause that's not
what he said, but they had drank a
few beers after practice and uh, those
beers were consumed in and around
his vehicle, and uh, that uh, brought
the truck back home that [31] night.
Um, I don't know how- what time. I
mean uh, if somebody was to ask me
a direct question about what time
they got home that night, I couldn't
answer that 'cause I don't know that
I was ever told. But it was later that
night after practice.

CURTIS:
17:02:18:00 So um, I would assume definitely
10:00ish, 11:00 maybe at night. You
know, after he powed around with
the guys a little bit. Plus his whole
reasoning for necessarily not coming
straight back home was Stacey was
asleep. She would go to bed at 9:00,
8:00. 9:00 at night in order to get
ready for the shift the next morning.
 387a

So he didn't want to disturb her.

That was kind of their sleeping
arrangement. You know, didn't want
to just come in and disturb her. And
so that was part of the other reason
why he said he didn't come home,
you know, uh, earlier than he did.
So...

MALE #1:
17:02:54:00 And uh, did he normally wake up
when she left for work? And if he
didn't that morning, why not?

CURTIS:
17:03:01:00 Well, and to ask me if-if uh, they- he
normally woke up to take her to
work, uh, I guess the question would
be answered like [32] this. Their-
their sleeping arrangements were
based on uh, his job being shift work
and now her job being shift work of
an early hours and stuff. So they
were kind of passing in the wind
sometimes, you know, because of the
way that they were working, but yet,
um, for him to get up in the morning,
that was mentioned to me that he
was driving her to work so that he
could have the truck, but every day I
can't answer that 'cause I don't know
for a fact that's true.
 388a

MALE #1:
17:03:40:00 Yeah, I don't mean to uh... It's not-
it's more of what happened that
morning.

CURTIS:
17:03:44:00 Yeah.

MALE #1:
17:03:44:00 You had told me when I talked to you
on the phone.

CURTIS:
17:03:45:00 Yeah.

MALE #1:
17:03:47:00 That he said, uh, that he didn't wake
up when she left because he had had
a few beers.

[33] CURTIS:
17:03:51:00 Yeah, he'd had a few beers.

MALE #1:
17:03:52:00 That's all. So just do me a favor and
tell me that.

CURTIS:
17:03:55:00 Yeah, uh, and basically the reason
why he didn't get up the next
morning whether it was because of
uh, her wanting to allow him to sleep
further because she knew that he'd
 389a

had a few beers the night before or

he slept in because he had a few
beers the night before. Whatever the
decision was made, ultimately she
drove herself to work that morning.

MALE #1:
17:04:13:00 And, uh, describe to me the scene
where you were with Jimmy uh,
when you found out that her body
had been found. [CLEARS THROAT]

CURTIS:
17:04:42:00 When we discovered that her body
had been found, that Stacey had
been found, um, me and Jimmy were
actually upstairs in his apartment.
Um, he was basically laying on a
beanbag on the floor, on the big bean
bags, and I was sitting on a chair,
and we were just talking about police
stuff. Trying to-trying to think about
something else for [34] right now,
and I kept telling him every time
he'd go back to the topic of her,
"They're gonna find her. She's gonna
be okay, and we'll deal with
whatever has happened to her. We'll
deal with it." And I just kept telling
him that and reassuring him that.
And this went on for a little while. I
don't remember how long.
 390a

CURTIS:
17:05:27:00 We were actually in the-the room
together, but uh, there was a knock
at the door. I answered the door and,
if I recall right, it was the chief
deputy for Lee County; a guy by the
name of Rodney Meyer, who is now
the sheriff. Looked down and I could
see that there was other police
officers in the grassy area of the
apartment, and there was cop cars
from Bastrop. There was
investigators from Bastrop. The
Texas ranger was there. Rocky
Wardlow. Uh, there was another
deputy there from Lee County, and
we walked downstairs, and we got
downstairs. I believe it was uh,
Investigator Connor who walked up
and told Jimmy, "We found her, and
she's deceased."

MALE #1:
17:06:24:00 And how did he react? Do you
remember?

CURTIS: [35]
17:06:27:00 Shock. He didn't say anything. Yeah,
I that-that Connor kind of gave him
a-a brief hug and-and Jimmy started
crying, and the officers that were out
there that day, several of 'em, started
crying, and uh, new phase in our life
began. So...
 391a

MALE #1:
17:06:56:00 So just briefly tell me what happened
after that; how things went.

CURTIS:
17:07:04:00 Well, right after they notified Jimmy,
uh, knowing that uh, Stacey's mom
had some medical issues, um, it was
decided that they were going to tell
Jimmy first, and then follow through
with her mother, and actually her
mother lived right underneath
Jimmy, and we went into the
apartment, sat down, and we told
her at that point. Um, as you can
imagine, a mother just lost her
daughter. It was not a pleasant
scene. Um, pretty much after that,
you know, I-I told Jimmy I'd be there
for him. Um, "You know, you need
anything. . ." His dad has showed up.

CURTIS:
17:07:50:00 I turned basically him over to his
father. [OFF-CAMERA
CONVERSATION] Yeah, we-we
went downstairs and we told his uh,
her mother and uh, as you can
imagine, mother just lost her
daughter, and so the scene was very
[36] chaotic. Um, wasn't pleasant
whatsoever. And uh, from that point
there's some time that had gone
through and-and actually Jimmy's
 392a

dad had arrived and I turned Jimmy

over to his father, and uh, I think I
probably personally had to have a
moment myself, you know?

CURTIS:
17:08:44:00 So um, I drove to my home there in
Lee County and uh, now I get the job
of telling my family who had grown
fairly close to the whole situation
and uh, and you know, obviously
when you have somebody who has a
car crash or they die in a car accident
or a sudden health issue, a heart
attack or something like that, it's
explainable. You expect it almost
sometimes, but to have a loved one or
a friend removed from you through
what was told to us by means of
somebody else taking her.

CURTIS:
17:09:30:00 Um, that was hard to accept. It was
hard to explain to young kids when I
got home that-that afternoon.

MALE #1:
17:09:41:00 Uh, I can't imagine. I'd never been in
that position and I'm glad I haven't.
Um, I want to take you back to when
you were a jailer then. Um, and ask
you about this guy and Rodney Reed
and whether you ever knew of him
[37] or as an officer uh, did you ever
 393a

come across him? Like was Rodney

Reed somebody that you knew before
this happened?

CURTIS:
17:10:19:00 Rodney Wee- Reed was a- Rodney
Reed was a person that uh, I had
encountered in the jail uh, maybe a
couple times. Uh, I wouldn't be for
sure, but I do- I did recognize him
from the jail. At the time I was
working in the jail that I ran across
Rodney a couple of times. I'd also, at
the same time, been working for the
Bastrop County Sheriff's office as a
reserve deputy. Kind of a reserve
deputy and go out on patrol and-and
assist the deputies, uh, on nights off,
vacations, things like that, and you
can just kind of fill in a spot.

CURTIS:
17:10:53:00 And so I was doing that at the same
time I was working at the jail. So I
had an opportunity to patrol the
streets of Bastrop uh, County, and
cities of Alvin, Bastrop, Smithville.
So I got to learn a lot of the people
that were roaming around, that were
available for uh, contact with police,
I guess you would say. Um, also
because of my stint in the jail, I
recognize a lot of these people. I-I
knew who they were, you know? But
 394a

then here they are at 3:00 in the [38]

morning walking around and I'm
thinking, "No, that's not gonna end
up well."

CURTIS:
17:11:28:00 Uh, probably need to check this guy.
You know, see exactly what he's
doing. Rodney happened to be one
of those people. Rodney was one of
those people that was always out
3:00, 4:00 in the morning, um,
usually on a bicycle, and uh, riding
up and down the railroad tracks
there in Bastrop, in the city of
Bastrop. Um, it-it just became
almost his uh, mode of operation, you
might say, that if you ran across
Rodney Reed, he was gonna be on
the railroad tracks and he was gonna
be there in the city of Bastrop and he
was gonna be on a bicycle.

CURTIS:
17:12:02:00 You know, to stop and talk to him
was almost stupid because you
already knew who he was. You knew
what he was doing, but at least you
knew where he was. So it-it became,
"Well, there's Rodney. At least we
know where he is," you know? But
uh, that would-that would have been,
if I was to explain when I first met
Rodney, that would be some of my
 395a

first encounters of Rodney would be

along the railroad track of Bastrop
and-and sometimes in the jail.

MALE #1: [39]

17:12:29:00 When you say you knew what he was
doing, what-what kind of things was
Rodney doing?

CURTIS:
17:12:33:00 I'd love to explain what I thought
Rodney was doing at that hour of the
night driving up and down, riding up
and down the railroad tracks on a
bicycle. Uh, I'm not sure I could give
an explanation. I will say that I
know that he had been stopped and
talked to about drug uh, sales. He
had been stopped and talked to about
having drugs on him. Um, how many
arrests were made because of that, I
could not tell you. I never personally
arrested him for anything. So that
would probably have to be my
answer on that. I don't know what
Rodney was doing at that time of
morning, uh, other than didn't have
a job. So I guess he could roam
whenever he wanted to.

MALE #1:
17:13:13:00 Did he have any kind of reputation
among the police?
 396a

CURTIS:
17:13:16:00 He had a reputation among the
police. Uh, Rodney uh, was somebody
that was known, and unfortunately
when you're dealing with a law
enforcement community, it's better
off not to be known because it's kind
of like the bad kid in class. That bad
kid, teacher [40] knows that bad kid
every time. Well, Rodney was kind of
developing that type of reputation as
being the bad kid. He was always
seems to be around when he
wouldn't, shouldn't be around. Um,
whether or not he was every arrested
for burglaries or theft, um, I will say
this, it seemed like every night that I
ever encountered him on the rail
road track, he was on a different
bicycle.

CURTIS:
17:13:55:00 So again, small town theft, I-I really
don't know what he was doing.

MALE #1:
17:14:01:00 Which is [I think?] when you, uh, you
discover or when you learned who
was arrested for Stacey's murder,
what was your reaction?

CURTIS:
17:14:13:00 My reaction when I found out that
Rodney had been arrested for
 397a

Stacey's murder was pretty

awestruck. I- that's not really what I
saw him as doing. He had already
started...There was some cases that
were coming in and again, you gotta
remember I was a jailer at the time.
I was not involved in direct
investigations of any sort, but the
Bastrop Sheriff's Office. And-and yet,
you know, hallway talk and things,
but uh, the hallway [41] talk at the
time was that Rodney had been
involved in a couple of assaults in the
area, and that in all actuality, those
assaults are what led to the
knowledge that-that Stacey was one
of his victims.

MALE #1:
17:14:57:00 I'm gonna be talking to David Board
about that 'cause I-I know he...
[OVERLAP]

CURTIS:
17:15:01:00 Yeah, and that's-that's your best
answer is right there.

MALE #1:
17:15:03:00 And I know since you weren't
involved.

CURTIS:
17:15:05:00 Yeah.
 398a

MALE #1:
17:15:06:00 Even though you might know the
information.

CURTIS:
17:15:08:00 Yeah.

MALE #1:
17:15:08:00 It's not really best for me to talk to
you about it

CURTIS:
17: 15: 12:00 Yeah.

[42] MALE #1:

17:15:13:00 Um, so what uh, what did you think?
How did you feel when you found out
that he was convicted and given the
death sent- when Rodney was given
the death sentence for his crime?

CURTIS:
17:15:37:00 The way I felt when I discovered
that-that Rodney was found guilty
and ultimately he was given the
death sentence, um, the first part of
that would have been we found out
he was guilty. That was-that was
step one. And actually the important
step. The part about the death
penalty, depending on what genre
you talk, who you talk to, what facet
of life you were brought up in, the
 399a

death penalty has its own-its own

conversations.

CURTIS:
17:16:13:00 At the time, I was hurt. At the time,
I was disappointed. I had to watch a
woman be buried in her wedding
dress. All those pictures came back
to my mind watching my friend
suffer the way we did that day
together not knowing, finding out.
And again, ultimately seeing her
buried a few days later in her
wedding dress that she worked so
hard to buy and was so proud of. And
I was a little upset. To say that I
would like to see Rodney Reed die,
that day, yes. I was very pleased
with the outcome.

[43] CURTIS:
17:17:04:00 Um, I still say that there's justice
and justice and because I do believe
in the American justice system. I do
believe and do support the death
penalty. Um, again, we can
conversate that for days, but
ultimately that day I would say
because of all the pictures that ran
through my mind, I was very pleased
of the fact that I found out that he
got the death penalty.
 400a

MALE #1:
17:17:36:00 Forget about that day. Just tell me
how you feel about it. Uh, not about
the death penalty, but about him and
about what-what the justice system
wants to do to him. I mean. . .

CURTIS:
17:17:48:00 Well, that's... As...

MALE #1:
17:17:49:00 Whether he deserves to live or not.

CURTIS:
17:17:51:00 As we progress further and we get
into what has become a 20 year stint
of my experience, my law
enforcement experience, my law
enforcement teachings, um, what I
know now about the case that's been
more open than more prevalent
throughout whether you listen [44]
to the news or you listen direct case
law coming out of the court. Um,
there is no doubt in my mind that
Rodney Reed caused the death of
Stacey Stites, and because he caused
the death of Stacey Stites, he should
have to answer for that.

CURTIS:
17:18:28:00 A court of law has appointed him to
die by lethal injection and I support
that and I believe that that would be
 401a

the right thing to do. I believe based

on-on the information that came out
of the court and the evidence that
was presented. There is no doubt
that he committed this crime. Um,
and he is going to ultimately be held
accountable for it, uh, if not by man's
law, by God's law.

MALE #1:
17:19:03:00 You said Rodney uh, caused the
death of Stacey Stites. That sounds a
little indirect.

CURTIS:
17:19:11:00 When I said Rodney caused the
death of Stacey Stites, it-it may
sound a little indirect, but uh, in all
actuality it's a-it's a legal term. Uh,
that's exactly what he did do.
Whatever actions he did to cause
that, um, ultimately his actions
caused her death. Uh, the evidence
speaks for itself. [45] I mean you
know, the autopsies, the evidence
that was found at the scene of her
body. Uh, we can pretty well surmise
what happened to her.

CURTIS:
17:19:43:00 Um, again, without being directly
involved in the investigation, I can
tell you what-what I know was
found, but uh, I believe the evidence
 402a

definitely supports the fact that

Rodney Reed caused the death of
Stacey Stites, which meant he
committed murder.

MALE #1:
17:20:04:00 It's just that's what most people
think of. I mean e-even though you're
using correct legalistic term.
[COUGH]

CURTIS:
17:20:08:00 Sure.

MALE #1:
17:20:10:00 I'm thinking of the general public.

CURTIS:
17:20:12:00 Sure.

MALE #1:
17:20:12:00 So that's-that's why I wanted you to
make you say that. That's a little
more...

CURTIS: [46]
17:20:15:00 Mm-hmm. Oh, that's cool.

MALE #1:
17:20:17:00 Okay. [LAUGH] Um, and tell me
what you think of Rodney Reed;
about him as you know, the kind of
person that has committed these
 403a

crimes and what should happen to

them?

CURTIS:
17:20:36:00 Rodney Reed, at the point in which I
interacted with him or he interacted
with what became part of my life,
um, he took a piece of life at that
point. A piece of my life that uh, I
will never forget. I will never forget
having to tell my uh, daughter who
had been told that she was going to
be part of Stacey's wedding group,
and uh, the fact that I was going to
be the best man at the wedding, and
these are things that uh, he took
away from us.

CURTIS:
17:21:16:00 And like I said, Stacey was not killed
in a car accident. Something you
could explain. She had somebody
maliciously take her life. Selfishly
take her life and because of that, we
were left to pick up the pieces. Um, I
can tell you this. Uh, the friendship
that I talked very highly of earlier is
non-existent. We do not talk
anymore. It became easier not to talk
to each other anymore because of the
memories. He went [47] his way, and
I went mine. I continue to raise my
family and he went on and continued
to raise his family.
 404a

CURTIS:
17:21:53:00 Um, it uh, tore apart a good
friendship. Something that, quite
honestly, I have never looked for
again. I fell back into the love and
care about my brothers and that's
who my friends are, and so Rodney
Reed, as a person, is a liar. He's not
willing to admit what he has done to
people, to himself; not to mention his
own family. You know, we're talking
about putting a man to death and he
has a family. The problem is in this
case, he's not the victim. He's the
person who committed the murder,
and the family is gonna hurt just the
same. So I don't think much of
Rodney Reed.

MALE #1:
17:22:55:00 You feel justice has been served.

CURTIS:
17:22:57:00 And I do feel like justice has been
served and will be served.

MALE #1:
17:23:03:00 You hope to see it served.

CURTIS:
17:23:04:00 Yes, I do.
 405a

[48]MALE #1:
17:23:06:00 Can you tell me that?

CURTIS:
17:23:07:00 Yeah, I feel like justice has been
served and I-and I hope to see it
fulfilled and served through the
whole process.

MALE #1:
17:23:17:00 And tell me what happened to
Jimmy after because I know some-
some bad things ended up happening
or he ended up doing some bad
things.

CURTIS:
17:23:25:00 Yeah. After this- after the trial, after
the-the sentencing, after that part of
or segment of our life had-had come
to a close, and then Rodney will go
on. Rodney Reed will go on and-and,
you know, his lawyers will start to
work the legal system as-as is
afforded to him by law. The other
side of it is, is that Jimmy, he went
on with his life or tried.

CURTIS:
17:24:02:00 Um, he ends up going from Giddings.
Moving from Giddings to uh, a police
department uh, just north of Austin
in the area of Georgetown, and I
believe, if I remember right, that
 406a

that is his hometown is from [49]

that area. Um, so he went back
home. Um, he joins the police
department there. Uh, from what my
understanding is and I apologize, I
am not a Facebook person. My wife
is. Apparently my wife and Jimmy
would keep up with each other
throughout the years on and off
conversations.

CURTIS:
17:24:41:00 Um, and she would fill me in about
what he was doing and what he was
accomplishing. Um, and he moved up
into the ranks of the Georgetown
Police Department. Um, he
eventually uh, will remarry or re- or
he will get married. Uh, I believe he
actually has a couple daughters. Uh,
I believe from Facebook entries to my
wife, he actually bought some land.
Um, he was trying to move on with
his life, and somewhere in all this,
there's a news article that come out,
"Georgetown Police Officer arrested
for sexual abuse of a prisoner," and
it's Jimmy Fennell.

CURTIS:
17:25:35:00 I was shocked. I really was. I was
shocked. I-I had no- I did not know
what to think. You know, first off you
want to think, well, he's innocent.
 407a

You know? But uh, as fast as the

evidence started showing or coming
to a conclusion, uh, through their
investigations up there and through
what I [50] believe it was Texas
Rangers, it became very obvious, he-
he will have committed what this
lady was claiming. Um, there was
evidence to prove that.

CURTIS:
17:26:11:00 So again, you know, you live by the
sword, you die by the sword. DNA is
what caught Rodney Reed. DNA is
what caught Jimmy Fennell. Um,
again, our friendship at that point
was non-existent. I had not talked to
him in a couple of years, and since
that's happened, I have not
communicated with him at all nor
does my wife Facebook with him. The
last I heard he was actually in
prison. So that's an area in my life
that uh, as I refer to, I shelf. I'll
never forget it. It was important to
me at the time, but I'm also one of
them people that I'm not gonna dwell
on things I cannot fix.

CURTIS:
17:26:59:00 I cannot fix this. All I can do is teach
my children, my grandchildren to
move on and to experience life to the
fullest because you truly never ever
 408a

know what's waiting around the

corner. So um, it was very sad to see
somebody, however he was affected
that may have caused him to act like
this. Uh, was it a power thing? Was
it... He was a cop and it just he
thought he could do it and get away
with it? I don't know 'cause I've [51]
never- I don't think I've ever
experienced that in my career.

CURTIS:
17:27:39:00 You know, there's uh... And when
I'm- when I say not experienced, I'm
talking about the power thing. It's-
you're trying to serve people. You're
trying to do those things, and I'm not
a Crusader. I mean I'm not-I'm not
that type of guy, but you have a job
to do. Just do the job and go home.
You know, that's-that's some old cops
taught me that a long time ago. Just
do the job and go home. You know,
don't bring it home. There's no sense
in it, and yet, these type of aspects of
your friend's fiancé being murdered,
uh, every day dealing with it, it-it's
tough not to do.

CURTIS:
17:28:18:00 But uh, if my wife was sitting here
today, she'd tell you I do not talk
about this stuff at home. I do not
bring it home. So what happened to
 409a

Jimmy that made him turn to be now

the reputation is gonna be no matter
what a good cop he might have ever
been, he will always be known as the
bad cop, and uh, what made him do
that I could never tell you. I have no
idea. So um, it's unacceptable.
Totally unacceptable. Uh, based on
other news stories and-and people of
the community of Bastrop, you know,
[52] rumors go pretty strong, and the
first thing that happened when
Jimmy was sided with this was
obviously he was guilty of-of uh,
taking Stacey's life.

CURTIS:
17:29:11:00 And I will never believe that. Never.
The person who took Stacey's life is
sitting on death row in Austin,
Texas; that's Rodney Reed.

MALE #1:
17:29:23:00 That's what I was gonna ask you
because after that happened, people
started saying, "Well, if-if he's able to
commit this violent crime and try to
cover it up" because according to the
story he tried to, you know, hide
what he did...

CURTIS:
17:29:44:00 Mm-hmm.
 410a

MALE #1:
17:29:45:00 That... Well, you tell me. What were-
what was the reasoning for-for
people to think that after that
happened, that maybe he could have
killed Stacey.

CURTIS:
17:29:57:00 Oh, that's an easy one. Just um, I
believe the reason why Bastrop
rumors, stories started flying around
after Jimmy's arrest for uh, his crime
he committed with that- [53] with
that lady up in Georgetown- I believe
the reason why most people jumped
on the Jimmy Fennell bandwagon
that he had to have done this. He-he
had to have had something to do
with it um, was because...

MALE #1:
17:30:25:00 Had to have something to do with
what? Sorry.

CURTIS:
17:30:28:00 The reason why I think they jumped
on the bandwagon because of the fact
that-that Jimmy had to do with the
murder and death of Stacey is
because it was-it was an easy target
at the time. It's easy to sit there
because our judicial system is one of
doubt. If we can cause somebody to
doubt something, that's all it takes.
 411a

It's just mere doubt. If you're sitting

in that jury box and you have any
doubt whatsoever, you have an
obligation to tell the court that I
don't believe this happened. And um,
I-I think you have obviously, I
mentioned earlier, a family that's
fighting for the life of their child.

CURTIS:
17:31:13:00 Their son, their cousin, their brother.
And they will do anything in their
power to cause that doubt, and
they're reaching out with all hope to
save Rodney Reed's life. I [54] don't
blame them for it. I would expect
that, but I also know it's wrong, and
as I've said earlier, the man who is
responsible for Stacey Stites' death is
Rodney Reed and he is sitting on
death row in Huntsville, Texas.

MALE #1:
17:31:54:00 And Jimmy Fennell is not the man
who killed Stacey Stites.

CURTIS:
17:31:57:00 And Jimmy Fennell is not the person
who killed Stacey Stites. Jimmy
Fennell, in my opinion, based only on
opinion, is a person who lost sense,
lost control of his life. Was it based
on the fact that he'd lost his fiancé? I
wouldn't be able to tell you that
 412a

‘cause I've never talked to him about

that, but uh, victims sometimes do
strange things, and because of the
fact that we really don't ever know
the total mentality behind a victim,
and each person has their own
strengths, I don't know what the
death of Stacey caused Jimmy, but I
will say this, the person who was
accused and ultimately convicted of
the wrongdoings with that lady in
Georgetown was not the person that
I originally met.

CURTIS: [55]
17:33:01:00 And I allowed into my home and was
around my children. So...

MALE #1:
17:33:09:00 I believe it. I think I covered
everything I wanted to, but I just
want to check.

CURTIS:
17:33:18:00 Sure.

MALE #1:
17:33:19:00 Um, oh, this was something.
Because-because people brought this
up, uh, and I don't-it's not
necessarily because I want to use it
in this film, but I'm just curious and
want to hear it from you. Um, peop-
 413a

there have been some conspiracy

theories and...

CURTIS:
17:33:45:00 Oh yeah.

MALE #1:
17:33:45:00 And people could have helped
Jimmy. Uh, what do you think of
those? The possibility that, you
know, a police officer... That Jimmy
could have done this and that other
police would have helped him cover it
up or helped him drive back or
something like that?

CURTIS:
17:34:04:00 The other thing that-that followed
with the rumor mills and the-and the
different things [56] that happened
in a small communities obviously. I
guess it happen in large too, but uh,
particularly in Bastrop at that time
of the-the murder case going on, uh,
was that uh, Jimmy could have had
somebody help him do this; that uh,
the conspiracy factor behind police
officers, you know, know how to get
away with it a lot better than the
normal criminal person would, um,
that is ludicrous. There...
 414a

CURTIS:
17:34:37:00 This of all things, small
communities, particularly small
police communities, it's harder to
hide things that it is necessarily in a
large community police agency. Um,
I'm not sure if I have factual
numbers or anything to go behind
that. It's just my opinion that we
can't get away with nothing in my
office because everybody knows what
you do. So it takes a lot. It would
take a lot for another man,
particularly a police officer, to walk
up to another police officer and say,
"Hey, look, I'm thinking about killing
my wife or my fiancé. How about you
come help me with it?"

CURTIS:
17:35:26:00 First off, what's the end-end run for
the other guy? Oh, I get to sit there
and watch? I get that's supposed to
be fun for me. Uh, I get to maybe go
to prison for the [57] rest of my life.
These are not things that are readily
available in the thought process of
police officers when you would be
planning a murder. Um.

MALE #1:
17:35:47:00 Well, let me just... Sorry to interrupt
you, but...
 415a

CURTIS:
17:35:49:00 No, I...

MALE #1:
17:35:51:00 I'd say that if anything, in these
other theories, it wasn't a
premeditated thing. That it might be
a more oh, I-I [OVERLAP]...

CURTIS:
17:36:00:00 I can talk about that.

MALE #1:
17:36:01:00 Had some moment of [COUGH]
passion or...

CURTIS:
17:36:04:00 I can talk about that.

MALE #1:
17:36:04:00 Be it a mistake, will you as a friend
help me?

CURTIS:
17:36:07:00 Yeah, you know, to think that this
was a premeditated thing, obviously
I-I don't [58] believe that.
[OVERLAP] [OFF-CAMERA
CONVERSATION]

MALE #1:
17:36:23:00 I'm sorry.
 416a

CURTIS:
17:36:24:00 Um, I'm having a brain freeze for a
second.

MALE #1:
17:36:27:00 Well, uh, you had been talking about
something premeditated. I'm talking
about or I think the idea.

CURTIS:
17:36:31:00 Yeah, if-if the idea that this was a
premeditated situation is not gonna
work. Um, it would probably be
something if you're gonna blame
Jimmy it would be what? A-a-an act
of passion. They had an argument.
Uh, he didn't see things the same
way she did or whatever. And it
would have to be an act of passion.
Well, if you're gonna do that and
you're gonna say that somebody else
helped you do this, you're still gonna
have to go to somebody and say,
"Hey, you're gonna have to help me
get rid of this body." That is a big
undertaking, you know, to ask
another man or woman to come in on
your criminal episode.

CURTIS: [59]
17:37:12:00 I would... Had he come to me with
that, be very honest with you. I'll tell
you this. Had he come to me and
said, "Curtis, I killed Stacey. I need
 417a

some help getting rid of the body. I

can't-I can't be caught in this, you
know?" "Oh buddy, I don't know
what to tell you, but uh, you're now
under arrest, and I will take you
down to the police station myself and
I'll make sure nobody hurts you, but
you're going down to the police
station because now you have
crossed the line. I cannot be part of
whatever you just did," and besides
we're-we're of a cooperative law
enforcement.

CURTIS:
17:37:50:00 You know, law enforcement wants
cooperation. So the first thing we
preach to the bad guys when we even
talk to them. I've done it for 18 years.
Is you need to cooperate. You need to
tell us what you've done. You need to
show repentance because District
Attorneys are sitting back and
they're waiting. They want to see
what you're gonna say and if you
come in and you basically say, "I'm
not talking to you," okay, well, I'm
not gonna deal with you. We'll just
send you up the river 'cause we got
the evidence. So you're done. You
come in there and say, "Look, my
family was hungry. I had to get some
food for 'em. Yeah I stole that TV. I
repent. I'm sorry. I [60] won't ever do
it again. Please give me a break."
 418a

CURTIS:
17:38:30:00 Which do you think people want to
hear? Had Jimmy gone in and said,
"I killed her. We got mad at each
other. I pushed her. She slipped and
fell." Whatever the situation was
that would have caused her death,
but to take an item and place it
around her neck and pull with the
force that it took to strangle her,
Jimmy Fennell did not do that. It did
not happen like that. The man who
wanted her dead because he could
not allow her to talk about him is
sitting on death row in Huntsville
and his name is Rodney Reed.

MALE #1:
17:39:10:00 What do you mean could not allow
her to talk about him? Explain that.

CURTIS:
17:39:13:00 There was uh, indications that there
was a sexual act committed against
her and so I'm pretty sure that uh,
he didn't want her getting out telling
everybody that it was him that did it,
and for him to be found out.

MALE #1:
17:39:28:00 Right. So...
 419a

[61] CURTIS:
17:39:28:00 And besides, we-we never will know
what Rodney's state of mind was at
that time as far as whether he was
using alcohol, whether he was using
drugs, or whether that's just his
normal psyche. We'll never know
that. You know, because he's not
telling us. So we're left to wonder,
well is this something that the
Rodney Reed of the world did on a
regular basis? Is this something the
Rodney Reed of the world did only
when he got drunk or-or high on
drugs? We'll never know because
Rodney did not want to cooperate
with law enforcement.

MALE #1:
17:40:07:00 If you could say something to
Rodney, what would you say?

CURTIS:
17:40:14:00 If I could say something to Rodney, I
would probably say, "I forgive you for
what you did to my family only
because I was raised in a Christian
lifestyle and I feel like I owe that at
least to my grandmother, but you
deserve what the state of Texas will
be doing to you and that is ending
your life."
 420a

MALE #1:
17:40:47:00 I believe you. Is there anything else
you'd like to say that I haven't
covered?

[62] CURTIS:
17:40:55:00 Not a lot. No. We're-we're pretty
done. Yeah. Um, yeah.

MALE #1:
17:41:04:00 Grace. Guys. Anything?

FEMALE:
17:41:07:00 I think we're good. [OFF-
CAMERA CONVERSATION]

MALE #3:
17:41:16:00 [ROOM TONE]

MALE #1:
17:41:33:00 Could you do me one favor and just
stand up and just stand up and then
step and sit down uh, just so that we
film you sitting down in the chair?

CURTIS:
17:41:45:00 Okay.

MALE #1:
17:41:45:00 As if it's the beginning of the
interview, unless you did that.
 421a

CURTIS:
17:41:48:00 Into this chair? [OFF-CAMERA
CONVERSATION]

MALE #1: [63]

17:41:49:00 Yeah, just uh, you don't have to go
anywhere. Just really stand up and
sit down and make yourself
comfortable.

CURTIS:
17:42:00:00 Right here and then sit down?

MALE #1:
17:42:01:00 Yeah, go for it. Great. Curtis, I
apologize for putting you through
this, but I really appreciate it.

CURTIS:
17:42:16:00 It brought back some memories.

MALE #1:
17:42:16:00 I can't-I can't tell you how much I
appreciate it.

CURTIS:
17:42:18:00 All right. Well, and I-I think based
on the phone call, you know most of
the evidence anyway. You know, I
did I know about the belt? Yeah. I
know about the belt. Uh, did I know
where she...
 422a

County of Alameda )
)
State of California )

AFFIDAVIT OF ALICIA SLATER

Alicia Slater, of lawful age, being duly deposed and

sworn states that:
1. My name is Alicia Slater, I am a resident of
Alameda County, California, I am over the age
of 18 and otherwise competent to give this
affidavit. I am originally from Cedar Creek,
Texas and my maiden name is Alicia
Griesemer.
2. In 1995 and 1996, I was employed part-time at
the HEB in Bastrop while I went to high
school. I worked as a bagger and would collect
shopping carts from the parking lot. I worked
at the HEB until I graduated Bastrop High
School May of 1996. I moved to Austin almost
immediately after I graduated and never
returned to Bastrop County to live. I moved to
California permanently in 2003 and had lived
there for a year in the late 1990's.
3. In the summer of 1995, I was working in the
HEB parking lot collecting shopping carts. I
was approached by a man in his thirties who
asked me for my phone number. When I
refused, he grabbed my arm and tried to pull
me towards his blue Chevy Suburban. I
knocked his hand away, screamed and ran to
the front of the parking lot. A co-worker named
Chuck heard me scream and ran after the
 423a

truck. The truck ran the red light at the

intersection and drove off. No one was able to
get the license plate because it was blacked
out. I reported the incident to the store
manager, and I eventually was interviewed by
the Bastrop Police. Sometime after Stacey's
murder, but before I left Bastrop, I was
interviewed again about the incident in the
parking lot. I don't remember who interviewed
me, but I understood it to be related to the
investigation of the murder of Stacey Stites.
Since that time, I have seen photographs of
Rodney Reed on the internet. I am certain that
the man who tried to abduct me was not
Rodney Reed. I have been provided with a copy
of the police report from this incident which is
attached to this Affidavit. The attached report
contains my statement given to the police at
the time and accurately describes the incident.
4. I met Stacey Stites when she came to work at
the Bastrop HEB. She was very friendly and
close to my age. Sometimes, when we were
working at the same time, we would eat lunch
together in the break room.
5. On one occasion when Stacey and I were
eating together in the break room, she talked
to me about her relationship with her fiancé.
She was talking about her engagement ring
and that she was not excited about getting
married. She told me that she was sleeping
with a black guy named Rodney and that she
didn't know what her fiancé would do if he
found out. She commented that she had to be
careful. I was taken aback by this because I
 424a

didn't know Stacey that well and was

surprised that she would confide in me. I
cannot remember when this conversation took
place, but it was within a few months of
Stacey's murder and could have been only a
few weeks before. I did not know Jimmy
Fennell or Rodney Reed at the time, and have
never met either of them since.
6. I remember that some people at the HEB
thought that Stacey's fiancé Jimmy Fennell
committed the murder. I didn't tell the police
what Stacey had told me because I did not
want to get involved. I knew Jimmy Fennell
was a cop and didn't trust the police in
Bastrop. After I graduated high school, I
wanted to get out of town. If I said something
to accuse a police officer, I was afraid there
would be repercussions for my family.
7. Although I had heard that Rodney Reed was
convicted of the murder, I didn't really follow
the case. I don't remember telling anyone
about the information that Stacey shared with
me. However, I recently mentioned this to my
childhood friend Velma Gonzalez who
remembered me telling her about it soon after
Stacey’s murder. She recalled that I told her
that Stacey informed me that she was having
an affair with a black dude. I thought that the
relationship between Rodney Reed and Stacey
was common knowledge, that everyone knew. I
remember that in 2003, a friend from Bastrop
brought up the case and said that she heard I
knew Stacey. I did not tell her anything about
what I knew. I kept this to myself because, at
 425a

the time, I had just moved to California, had

just gotten married, and had started a new job.
I thought that if I said something, that I would
have to come back to testify in Bastrop.
8. On November 22, 2014, I read a Facebook post
about the Reed case from KXAN and found out
that he was scheduled to be executed. The first
thing I did was called KXAN and other news
media that covered the case to find out who I
could talk to provide the information I knew. I
also called the Bastrop County DA's office but
don't recall leaving a message. I also sent an
email to a person named Gayle Wilhelm at
Bastrop County explaining what Stacey told
me and providing additional information about
the case that I had since read on the internet. I
got no response to my e-mail. Ultimately, my
friend Heather Pritchard, who has been
following the case, gave me the name of Bryce
Benjet, Rodney Reed's lawyer at the Innocence
Project and a filmmaker Ryan Polomski, who
did a film about the case. I contacted both of
them and told them what I knew.
9. When I saw in the Facebook post that Rodney
Reed had an execution date, I realized that it
was now or never. I didn't track the case before
and didn't realize the importance of what
Stacey had told me. When I read about the
case on the internet, I learned that an
important issue has been whether Stacey and
Rodney were in a consensual relationship.
Based on this, it became clear that what
Stacey told me in the break room at the HEB
needed to be made public. I felt morally
 426a

compelled to tell someone that Stacey herself

told me that she was sleeping with Rodney. I
felt that it would be terrible if the wrong
person was executed for Stacey's murder and I
had never come forward with this information.
10. I declare under penalty of perjury that my
statements in the above numbered paragraphs
1-9 are true and correct.

Further affiant sayeth naught.

_________________________
Alicia Slater

Dated: December 15, 2014

Subscribed and sworn to, before me, a Notary

Public, this _day of December 2014, by Alicia
Slater who is personally known to me or has
shown adequate identification:

/s/ M. Davis .
Notary Public
 427a

PROOF OF EXECUTION BY A SUBSCRIBING

WITNESS
State of California )
)
County of San Francisco )

On December 15, 2014, before me, the undersigned,

a notary public for the State of California, personally
appeared Hannah Gilson , personally known to
me and providing satisfactory evidence, who is
known to be the person whose name is subscribed to
the within instrument, as a witness thereto, who,
being by me duly sworn, deposed and said that
he/she was present and saw/heard acknowledged
Alicia Slater , the same person described in and
whose name is subscribed to the within and annexed
instrument in his authorized capacity as a party
thereto, execute the same, and that said affiant
subscribed his/her name to the within instrument as
a witness at the request of Alicia Slater .

WITNESS my hand and official seal.

M. Davis .
NOTARY PUBLIC SIGNATURE
 428a

STATE OF TEXAS

COUNTY OF BASTROP

AFFIDAVIT

LEE ROY YBARRA, being first duly sworn,

appeared before the undersigned authority duly
designated to administer oaths and states as follows:

1. My name is Lee Roy Ybarra. I am a resident of

Bastrop, Texas. I am over the age of 18 years
and do hereby declare that am competent to
give this affidavit. No promises or agreements
have been made to me in exchange for this
statement, and I do not expect any in the
future. This affidavit is based on my personal
knowledge and the following facts are true and
correct to the best of my knowledge:
2. I was employed at the HEB grocery store
located at 104 N. Hasler in Bastrop, Texas in
1996. During the course of my employment I
met Stacey Stites, a nice personable young
lady who also worked at the store as a checker
and then moved to the fruits and vegetables
department.
3. There were several times that I would see
Stacey talking with a young black man inside
the store. I did not know his name but I would
notice that her demeanor changed whenever
he came around. She seemed happy to see him
and would be in a good mood.
 429a

4. I remember this man because some times they

were close enough that I got a very good look
at him. I remember him because I used to
think that this was not a very attractive black
man and she on the other hand was a very
pretty young lady with a good personality. I
couldn't understand what she saw in him but I
guessed that if he made her happy, nothing
else mattered.
5. I knew that Stacey was engaged to a police
officer at the same time that she was seeing
this same black man and I recall that the few
times that Stacy's fiancee entered the store to
visit her, she would become a nervous wreck. I
know that there were times that Stacey would
deliberately hide so that she didn't have to talk
to him. I just thought that it was a strange
relationship.
6. I left my employment with HEB about two
weeks before the murder of Stacey Stites. I
took a short vacation and when I returned I
found out about Stacey's death. Much later I
read a newspaper article about Stacey's death
and saw the photograph of the black man who
was accused of her murder. I quickly said to
myself that this is the same black man who
used to visit her at the store. It was then that I
found out that the man's name was Rodney
Reed.
7. I did not read anymore news articles about the
death of Stacey Stites because I have rarely
taken the time to read newspapers or to watch
the news. I don't know what happened
between the two of them but I thought that it
 430a

was a sad thing because they looked pretty

happy when they were together. I just thought
that it was a terrible tragedy.
8. At the time of Rodney Reed's trial or prior to
his trial no one from the prosecution or defense
team contacted me. If anyone had asked, I
would have gladly told them what I knew
about Stacey Stites and Rodney Reed. I was
recently interviewed by a television crew about
my knowledge of Stacey Stites and Rodney
Reed. As in this affidavit, everything that I
told the television crew is true to the best of
my recollection.
I declare under penalty of perjury that the
foregoing is true and correct to the best of my
knowledge and ability.

COUNTY OF BASTROP
STATE OF TEXAS

Subscribed and SWORN before me in the jurisdiction

aforesaid, this 15th day of January , 2015

Richard Reyna .
Notary Public Signature
My Commission Expires: August 22, 2018
 431a

AFFIDAVIT OF CALVIN “BUDDY” HORTON

THE STATE OF TEXAS §

§
COUNTY OF BASTROP §

BEFORE ME, the undersigned Notary Public, on this

day personally appeared Calvin "Buddy" Horton,
known to me to be the person whose name is
subscribed to this Affidavit, and who, being duly
sworn on his oath, deposed and said:
1. My name is Calvin "Buddy" Horton. I
am over twenty-one years of age and am fully
competent to make this Affidavit. I have personal
knowledge of the facts set forth in this Affidavit, and
they are true and correct. Currently, I live in Red
Rock, Texas.
2. When my cousin Stacey Stites ("Stacey")
was 16 years old, she and her mother moved in with
my parents, Janice and Ray Horton, in Rosanky,
Texas—less than a mile from where I lived with my
wife Camille Horton and our three young children,
Jaymi, Whitford and Steven, at the time. I traveled
to Corpus Christi around this time to help Stacey and
her mother Carol move their belongings into a
storage facility in the Bastrop area.
3. I understood from speaking with my
parents that Stacey's mother was concerned that
Stacey had begun dating and associating with men at
an early age—including black men—that Stacey had
gotten pregnant, and that her mother decided to
move after Stacey's pregnancy. My father told me
that Carol was concerned about the influences in
 432a

Stacey's environment in Corpus Christi and wanted

to leave.
4. Stacey and Carol lived with my parents for
approximately two months, but within that time, my
mom and father informed me that some of Stacey's
traits from Corpus Christi resurfaced. According to
them, she would continue to see men, was
disobedient and would leave the house at-will.
Because of this, my dad asked my mom and wife to
seek out more suitable housing for them. Eventually,
my wife and my mother found a home in Smithville
for Carol and Stacey to live. As I had done before, I
helped Stacey and her mother move. This time I
moved their belongings from the storage facility to
the Smithville home, where they stayed until they
moved to Bastrop.
5. One Sunday evening, around five, or six o'clock
in 1995, two of my young children, Jaymi and
Whitford, and I went to the Dairy Queen in Bastrop
to get some ice cream. I remember they were young
at the time—both were under the age of ten. I also
remember it was a warm day, but the weather was
not hot or humid as is typical in Texas summers. I
believe it was sometime between October and
November. At that time in my life I worked as a
carpenter and did not get Saturdays off. The only day
I would have been able to take them for ice cream
would have been on a Sunday.
6. As I pulled into the Dairy Queen in the Ford
pickup I was driving at the time, with my children
inside, I remember seeing Stacey coming out of the
Dairy Queen with a black man. I hollered her name
to get her attention as I drove in, but she did not
respond. I know they heard me because both Stacey
 433a

and the black man looked directly at me, but neither

came toward me. I have a rather loud voice; I easily
project and rarely have a difficult time being heard.
7. Seeing Stacey with a black man did not
surprise me because I remembered what my parents
told me about her dating and associating with black
men. Stacey, however, was shocked; she seemed
embarrassed when she saw us and she quickly left
with the black man without introducing me. Stacey
and the black man got into a darker colored car that
Stacey was driving, and they drove off without
speaking to me or my children, I told my father of
this incident, but to me it was not a big deal at the
time because I had been told that Stacey associated
with black men.
8. Sometime after Stacey's death I remember
seeing pictures of Rodney Reed on the news and in
the newspaper after he became a suspect in the death
of my cousin. Rodney Reed is the same man I saw
with Stacey at the Dairy Queen in 1995. I
understand that the appeals courts have previously
said that there were no credible witnesses that would
testify as to having seen Rodney and Stacey together.
I would have testified to my experience at the Dairy
Queen in 1995 at trial, but no one ever approached
me to do so. Since then, I have told other members of
my family and would have told law enforcement and
prosecutors the same had they interviewed me or
shown any interest.
9. Because of this information, and Stacey's
behavior at this time in her life, I have always
believed Mr. Reed's story that he had a relationship
with my cousin Stacey—despite the unfortunate pain
it brings upon my aunt Carol. I do not wish to cause
 434a

her, or my family, any more pain. I simply want to

bring this truth to light.

Further Affiant sayeth not.

Calvin “Buddy” Horton

Subscribed and sworn to before me this __ day

of March, 2015, to certify which witness my hand and
official seal.