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Court's Findings of Fact and Conclusions of Law

Cause No. W96-39973-J(A)
IN THECRIMINAL DISTRICT COURT No. 3
DALLAS COUNTY, TEXAS
_________________________________________
EX PARTE DARLIE LYNN ROUTIER,
APPLICANT
_________________________________________


COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

_________________________________________

Having considered Applicant’s “First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071,” the Respondent’s “Original Answer,” Applicant’s “Reply to Respondent’s Original Answer to Applicant’s Article 11.071 Application for Writ of Habeas Corpus,” Applicant’s “Second Renewed Request for Access to State’s Evidence,” Applicant’s “Renewed Motion for Hearing,” Applicant’s “Motion for Reconsideration,” Applicants “Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing,” official court documents and records, and the Court’s personal experience and knowledge, the Court makes the following findings of fact and conclusions of law:

HISTORY OF THE CASE

Applicant is confined pursuant to the judgment and sentence of the Criminal District Court No. 3 of Dallas County, Texas, in cause number F96-39973-J, in which Applicant was convicted by a jury of the capital felony offense of capital murder, specifically, the murder of Damon Routier, a child under six years of age. (CR: 2). See Tex. Penal Code Ann. §19.03(a)(8)(Vernon 1994). The jury answered the special issues submitted so as to support the imposition of a death sentence, and this Court therefore assessed punishment at death, as required by law. (CR: 220-21). See Tex. Code Crim. P. Ann. art. 37.071, §2(b)(1)(Vernon Supp. 2003); Tex. Code Crim. P. Ann. art. 37.071, §2(e)(1)(Vernon Supp. 2003).
The Court of Criminal Appeals affirmed Applicant’s conviction and death sentence in a unanimous opinion. Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003).

APPLICANT’S CLAIMS

In her Application for Writ of Habeas Corpus, Applicant raises the following grounds for relief:

(1) whether she is actually innocent of the crime for which she was convicted;

(2) whether a defective reporter’s record of the trial denies her rights to due process of law;

(3) whether she received ineffective assistance of counsel from her team of lawyers due to:

  • a conflict of interest on the part of Doug Mulder;
  • an unreasonable investigation on the part of the defense team;
  • the failure to object to allegedly inadmissible evidence of her character;
  • the failure to object to allegedly inadmissible hearsay;
  • the failure to object to testimony regarding statements made by Applicant while she was in a hospital;
  • a failure to object to the prosecutors interfering with access to witnesses;
  • the failure to offer a surveillance video tape depicting a prayer service earlier in the day of the “silly string” party;

(4) whether the cumulative effect of her defense team’s actions violated her rights;

(5) whether prosecutorial misconduct deprived her of a fair trial;

(6) whether the prosecution violated Brady v. Maryland by failing to disclose favorable evidence that:

  • would impeach FBI agent Alan Brantley;
  • would impeach trace evidence analyst Charles Linch;
  • and would demonstrate that Applicant was not a future danger.

(7) whether the prosecution failed to correct false testimony from Charles Linch;

(8) whether the cumulative effect of alleged misconduct by the prosecution deprived Applicant of a fair trial; and

(9) whether the Texas death penalty system is unconstitutional on its face.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF I

In Ground for Relief I, Applicant claims she is “actually innocent” of the crime for which she was convicted. (Application at 13-23).

Applicable Law – Actual Innocence

1. In order to sustain a claim of “actual innocence,” a habeas applicant must prove by clear and convincing evidence that no reasonable juror would have convicted her in light of newly discovered evidence. Ex parte Franklin, 72 S.W.3d 671, 675-77 (Tex. Crim. App. 2002).

2. Applicant claims the lower standard of preponderance of the evidence as set out in Schlup v. Delo, 513 U.S.298 (1995) applies to her actual innocence claim. (Application at 13-16).

3. The Supreme Court distinguished “substantive” innocence claims from “procedural” innocence claims in Schlup. The Court specifically noted that Schlup’s claim would not provide him relief, but merely provided a “gateway” for review of otherwise barred claims presented in his successive habeas petition. Schlup, 513 U.S. at 315 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)).

4. The Court finds that the instant habeas proceeding involves Applicant’s initial writ application, and therefore, her claims cannot be barred for abuse or subsequent use of the writ.

5. The Court concludes that Applicant’s claim is a “substantive” claim of innocence, and therefore Applicant must prove by clear and convincing evidence that no reasonable juror would have convicted her in light of newly discovered evidence. See Franklin, 72 S.W.3d at 677; see also Schlup, 513 U.S. at 317.

Fingerprint Evidence
The Jantz Report, the Wertheim Report, and the Jantz Affidavit

6. Applicant claims that new fingerprint evidence demonstrates that a previously unidentified bloody fingerprint found on the coffee table belonged to an adult. (Application at 17-18).

7. Two lifts of this print were admitted into evidence at trial. (SX. 845I & 85J; RR.34: 2030).

8. Based on the testimony of James Cron, and the writ evidence of Dr. Richard Jantz and Pat Wertheim, the court finds that the fingerprint lacks sufficient points of comparison to make a comparison and that the fingerprint most likely was deposited by a child or adult female.

9. The Court finds that Jantz’s method is not a sound or accepted basis to identify or exclude an individual as having deposited a smudged, bloody fingerprint such as that in the instant case.

10. The Court finds that Cron’s trial testimony about the fingerprint was accurate. .

11. The Court finds that the technique Jantz used to prepare his report is not typically used by forensic anthropologists.

12. The Court finds that Wertheim’s critique of Jantz’s report is credible and persuasive.

13. The Court concludes that Applicant has failed to demonstrate that Jantz’s technique is valid, or that Jantz properly applied the technique in examining the fingerprint evidence in this case.

14. The Court concludes that Jantz’s report would be inadmissible under Texas Rule of Evidence 702.

15. The Court further finds that Applicant has always claimed that an unknown adult male was the real perpetrator of the murders. (See, e.g., RR.34: 2564-65; 2568; RR.44: 4468).

16. The Court finds that the tables in Jantz’s report each state that the most likely depositor of the print was an adult female. (Applicant’s Writ Exhibit 4, Table 2, Table 5, Table 8).

17. The Court finds that Jantz’s report therefore undermines Applicant’s claim that an unknown adult male murdered her children.

18. The Court finds that Wertheim compared the latent print, State’s Exhibit 85I and 85J, to the print cards of all the paramedics, police, forensic technicians, and others who were in the crime scene from the time the murder was reported until the officer who collected the print left the crime scene. Of all those people, the only finger of a person that could not be excluded as contributing the print was Applicant’s right ring finger. (State’s Writ Exhibit 2 at 3).

19. The Court finds that Jantz’s report does not exclude the possibility that Applicant deposited the unidentified print.

20. The Court finds Applicant has failed to prove by a preponderance of the evidence that Jantz’s report is affirmative evidence of Applicant’s innocence.

Fingerprint Evidence
Affidavit of Glenn M. Langenburg and Report of Robert C. Lohnes

21. The Court has reviewed the Affidavit from Glenn M. Langenburg, dated July 24, 2003, and the Report from Robert C. Lohnes, dated June 3, 2003, attached to Applicant’s Second Renewed Request for Access to State’s Evidence, filed July 29, 2003.

22. The Court finds that the source of the bloody fingerprint located on a door from the crime scene cannot be individualized due to insufficient characteristics. (Langenburg Affidavit at 7).

23. The Court notes that multiple persons were present in the crime scene after the report of the crime and prior to the collection of evidence in this case.

24. The Court finds that Langenburg’s Affidavit does not account for the possibility that one of the other persons known to be in the crime scene deposited the bloody print in question.

25. The Court finds that Lohnes’s Report states that he examined a latent print developed with black powder “left on a portion of a door.” (Lohnes Report 6/3/03).

26. The Court finds the Lohnes’s Report states that he identified the print as belonging to Darin Routier, specifically the second joint of Darin Routier’s left middle finger. (Lohnes Report 6/3/03).

27. The Court finds that the record demonstrates that Darin Routier lived in the home and was present in the home at the time of the murders. (See, e.g., RR.28: 311-12; RR.44: 4872-73).

28. The Court finds that the presence of Darin Routier’s fingerprint inside his own home is not to be unexpected.

29. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Affidavit and Lohnes’s Report establish that any adult in addition to Applicant or Darin Routier were present in the home at the time of the offense.

30. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that fact is affirmative evidence of Applicant’s innocence.

31. The Court finds that Langenburg’s Affidavit and Lohnes’s Report are not affirmative evidence of

Applicant’s innocence.
Fingerprint Evidence
Reports No. 1 and No. 2 of Glenn Langenburg

32. Applicant has attached Glenn Langenburg’s Report No. 1, dated May 5, 2002, and Report No. 2, dated December 14, 2003, to her Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing filed on January 23, 2004.

33. The Court finds that Langenburg’s Report No. 1 states that he examined a bloody fingerprint from a door. The report states that the fingerprint had insufficient quantity and quality of ridge detail to identify the source, but had sufficient quantity and quality of ridge detail to exclude Applicant as the source of the print. (Langenburg Report No. 1).

34. The Court finds that Langenburg’s Report No. 1 relates to the same fingerprint discussed in Langenburg’s Affidavit and reaches the same conclusion stated in the Affidavit. (Compare Langenburg Report No. 1 with Langenburg Affidavit).

35. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report establishes that any adult in addition to Applicant or Darin Routier were present in the home at the time of the offense.

36. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that that fact would be affirmative evidence of Applicant’s innocence.

37. The Court finds that Langenburg’s Report is not affirmative evidence of Applicant’s innocence.

38. The Court finds Applicant has failed to plead and prove facts, which if true, entitle her to relief. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998) (citing Ex parte Maldonando, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985)).

39. In the alternative, the Court makes the following findings, assuming arguendo that Langenburg’s Report No. 1 refers to a different fingerprint than that referred to in Langenburg’s Affidavit.

40. The Court finds that Langenburg’s Report No. 1 does not account for the possibility that one of the other persons known to be in the crime scene deposited the bloody print in question.

41. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 1 establishes that an intruder was present in the home at the time of the offense in addition to Applicant and Darin Routier.

42. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print in question, that fact would exonerate Applicant.

43. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 1 is affirmative evidence of Applicant’s innocence.

44. Langenburg’s Report No. 2 states that he examined another fingerprint, a latent fingerprint developed with black powder, located beneath the bloody fingerprint examined in Report No. 1. (Langenburg Report No. 2).

45. Langengburg states that this print is either a palm or finger joint print that is suitable for comparison. (Langenburg Report No. 2).

46. The Court finds that Langenbug’s Report No. 2 does not account for the possibility that persons known to be in the house prior to the crime could have deposited the latent print in question.

47. The Court finds that, as the latent print in question is not bloody, it cannot be connected to the crime.

48. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Langenburg’s Report No. 2 establishes that an intruder was present in the home at the time of the offense.

49. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, even if an unknown person deposited the print examined in Langenburg’s Report No. 2, it would constitute affirmative evidence of Applicant’s innocence.

50. The Court finds that Langenburg’s Report Report No. 2 is not affirmative evidence of Applicant’s innocence.

Affidavit of Darlene Potter

51. Darlene Potter’s Affidavit states that she saw two “suspicious” men on near an “S” curve on Dalrock Road in Rowlett after 2:00 am on the night of the murders. (Applicant’s Writ Exhibit 14).

52. The Court finds that Potter executed her Affidavit on July 10, 2002, over six years after the offense. (Applicant’s Writ Exhibit 14).

53. The Court finds that Potter did not provide this information to the police at the time of the offense.

54. The Court finds that the men in question were walking in a direction that led away from the Routier home prior to the murders.

55. The Court finds that David Nabors’ Affidavit (State’s Writ Exhibit 3) identifies three possible locations matching that description of the areas where Potter saw the “suspicious” men: 7609 Dalrock Road, 8705 Dalrock Road, and 8900 Dalrock Road.

56. The Court finds that the aerial maps attached to Nabors’s Affidavit show that 7609 Dalrock Road is 5861 feet (1.1 miles) away from the Routier home at 5801 Eagle Drive, and 8705 Dalrock Road is 8505 feet (1.6 miles) away. (State’s Writ Exhibit 3, Map 1, Map 2).

57. The Court finds that the distances described in the previous finding are straight lines cutting through numerous houses, fences, streets, and parking lots. (State’s Writ Exhibit 3, Map 1, Map 2).

58. The Court finds that from the Routier home at 5801 Eagle Drive the driving distance was 2.3 miles to 8900 Dalrock Drive, approximately 2 miles to 8705 Dalrock Drive, and approximately 1.23 miles to 7609 Dalrock Drive. (State’s Writ Exhibit 3).

59. The Court finds that Potters delay in executing her affidavit and failure to report what she witnessed at the time cast doubt on the veracity of her allegations.

60. The Court finds that the affidavits demonstrate that the men had no connection to the instant offense.

61. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Potter’s affidavit proves that anyone other than Applicant was responsible for or involved in the murders.

62. The Court finds that Potter’s Affidavit in not affirmative evidence of Applicant’s innocence.

Evidence Regarding Insurance Scam

63. Applicant has attached to her Application affidavits from Darin Routier, Richard Reyna, and Robbie Kee stating that Darin tried to find someone to burglarize his house prior to the murders there. (Application at 19-20; Applicant’s Writ Exhibits 13, 12, 6).

64. The Court finds that Darin vigorously disputed the State’s evidence that the family was in financial difficulty, but admitted that his business had slowed, he was behind on his taxes, he was behind on his office rent, and he had large credit card debts. (RR.42: 4248-57; 4354-56; 4364; R.43: 4445).

65. The Court finds that the State presented expert testimony at trial from FBI Special Agent Alan Brantley that the crime was inconsistent with a property crime but consistent with a murder committed by a person close to the children. (RR.40: 3655-97).

66. The Court finds that readily visible valuable items like jewelry were left undisturbed during the crime. (SX. 15 E & 15 F).

67. The Court finds that Applicant has adduced no evidence nor pointed to evidence in the record that demonstrates that the crime was an attempted burglary or robbery rather than a murder.

68. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Darin Routier’s Affidavit, Richard Reyna’s Affidavit, or Bobbie Kee’s Affidavit prove that anyone other than Applicant was responsible for or involved in the murders.

69. The Court finds that the affidavits are not affirmative evidence of Applicant’s innocence.

Affidavit of Samuel Palenik

70. Applicant has attached the Affidavit of Samuel Palenik to her Application stating that, based upon his review of the trial record, further testing of the debris recovered from the knife seized from the Routier’s kitchen might be “more definitive.” (Applicant’s Writ Exhibit 10).

71. At trial, Charles Linch testified that he found debris on a knife seized from the Routiers’ kitchen that was consistent with test fibers he recovered from the cut window screen in the Routiers’ garage. (RR.37: 2905-28; SX 117).

72. The State argued at trial that the fibers on the knife showed that Applicant staged the crime scene to make it appear that an intruder committed the offense. (RR.46: 5229-30).

73. Palenik’s Affidavit also states that it is “possible” that the debris found on the knife came from the fingerprint brush used to fingerprint the knives. (Applicant’s Writ Exhibit 10).

74. The Court finds that fibers from the fingerprint brush used by the Rowlett Police at the crime scene are not consistent with the debris found on the knife. (RR.37: 3038-39; 3054-56). The fibers from the brush were of 25% greater diameter than the screen fragment fibers, 12.5 microns as opposed to 10 microns. (RR.37: 3055).

75. The Court finds that the trial record does not indicate that the Rowlett Police processed the knife block or knives for fingerprints. (RR.34: 1979-2096; 2016-17; 2078-79).

76. The Court finds that the knife and knife block were not printed by the Rowlett Police. (State’s Writ Exhibit 3).

77. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Palenik’s affidavit demonstrates that anyone other than Applicant is criminally responsible for the offense.

78. The Court finds that Palenik’s affidavit is not affirmative evidence of Applicant’s innocence.

Affidavit of Terry Laber

79. Applicant attached the Affidavit of Terry Laber to her Application in support of her actual innocence claim. (Application at 21-22; Applicant’s Writ Exhibit 7).

80. Laber viewed Applicant’s nightshirt prior to trial and removed four samples prior to Tom Bevel, the State’s blood spatter expert, observing the shirt. (RR.37: 2819; 2821-22).

81. The Court finds that Laber does not reveal the results of any tests he performed on the samples in his Affidavit. (Applicant’s Writ Exhibit 7).

82. At trial Tom Bevel testified that he examined five bloodstains on Applicant’s nightshirt, and that four of these five stains contained both Applicant’s blood and the blood of Damon or Devon. (RR.39: 3340-56; 3344; 3347; 3345-46; 3348-50; 3352).

83. The Court finds that the five bloodstains in question were consistent with blood being “cast off” the knife as Applicant stabbed her children. (RR.39: 3344-50; 3352; 3354-56).

84. The Court finds that some of the four stains consisting of both the blood of Applicant and her children could have resulted from Applicant’s blood being deposited on top of the blood of one of the children’s blood. (RR.39: 3343-46). Bevel testified that at least one of the stains, however, did not appear to be an “overlaid” stain. (RR.39: 3348).

85. The Court finds Bevel testified that, if the stains were “mixed” rather than overlaid, then Applicant was already bleeding when Damon and Devon were stabbed. (RR.39: 3488; 3490-91).

86. The Court finds that Applicant’s blood in the stains could have come from self-inflicted wounds on her arm as well as from her neck, and therefore her neck wound could have been inflicted after she killed her children. (RR.39: 3549).

87. Laber states in his Affidavit that Applicant’s blood landing precisely atop the blood of her sons in the stains “would have required an extremely unlikely sequence of events.” (Applicant’s Writ Exhibit 7, “12.a”, p.5).

88. Applicant’s lead trial counsel argued to the jury how difficult it would be for spots of Applicant’s blood to land atop spots of her children’s blood four separate times. (RR.46: 5303).

89. The Court finds that Laber’s affidavit does not state that his opinion regarding these bloodstains is anything more than common sense.

90. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the nightshirt demonstrate that anyone other than Applicant is criminally responsible for the offense.

91. The Court finds that Laber’s allegations regarding the nightshirt are not affirmative evidence of Applicant’s innocence.

92. Laber’s Affidavit also alleges that blood spatter on the vacuum cleaner was inconsistent with Applicant pushing the vacuum cleaner around while bleeding from her wounds. (Applicant’s Writ Exhibit 7 at 11.a).

93. The Court finds that the State’s blood spatter expert, Tom Bevel, testified that some of the blood spatter on the vacuum cleaner was deposited while it was standing upright, and some was deposited while it was lying on its side on the floor. (RR.38: 3302-3306).

94. The Court finds that Laber’s allegations appear to be consistent with Bevel’s trial testimony regarding the vacuum cleaner.

95. Applicant testified at trial that she used the vacuum cleaner to support herself after she received her wounds. (RR.44: 4874-76; 4877).

96. Darin Routier also testified that Applicant used the vacuum cleaner to support herself after she was wounded. (RR.42: 4298-4300).

97. The Court finds that Laber’s allegations regarding the vacuum cleaner are contradicted by Applicant’s and Darin’s sworn trial testimony.

98. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the vacuum cleaner demonstrate that anyone other than Applicant is criminally responsible for the offense.

99. The Court finds that Laber’s allegations regarding the vacuum cleaner are not affirmative evidence of Applicant’s innocence.

100. Laber’s Affidavit also alleges that a broken wineglass on the kitchen floor was not consistent with a person smashing or throwing the glass onto the floor as part of a staged crime scene. (Applicant’s Writ Exhibit 7 at 11.b).

101. The Court finds that James Cron found broken glass from a wine glass on the floor of the Routier kitchen. Some of the glass was located on top of bloody footprints, but was not itself bloody. (RR.34: 2212-13; 2217-18). Broken glass was also found beneath the overturned vacuum cleaner in the kitchen. (RR.34: 2216-17).

102. James Cron testified that he examined a wine rack in the Routier kitchen but could not shake or bump any of the wine glasses loose without all of the glasses falling out. (RR.35: 2251; 2392).

103. The Court finds that, during cross-examination, James Cron testified that there was broken glass on top of the wine rack. (RR.35: 2397-98)

104. Darin Routier testified that there was broken glass in an ice bucket atop the wine rack, as well as the top of the rack itself. (RR.42: 4330).

105. Applicant’s attorneys argued that the broken glass in the ice bucket and on top of the wine rack demonstrated that an intruder knocked a glass out of the rack as he fled the Routier home after committing the murders. (See RR.46: 5314).

106. The Court finds that Laber’s allegations regarding the wine glass are cumulative of trial testimony adduced by Applicant’s trial counsel.

107. The Court finds that Laber’s allegations regarding the wine glass do not address the testimony that fragments of the broken wine glass were found underneath the vacuum cleaner, or that unbloodied fragments were found atop Applicant’s bloody footprints. (Applicant’s Wirt Exhibt 7 at 11.b).

108. The Court notes that Laber’s allegations regarding the broken wine glass are conclusory and give no insight as to the basis of his allegations. (Applicant’s Writ Exhibit 7 11.b).

109. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Laber’s allegations regarding the broken wineglass demonstrate that anyone other that Applicant is criminally responsible for the offense.

110. The Court finds that Laber’s allegations regarding the broken wineglass are not affirmative evidence of Applicant’s innocence.

Applicant’s Writ Evidence Does Not Establish Actual Innocence

111. A habeas applicant must adduce affirmative evidence of innocence to establish actual innocence; mere impeachment or raising doubt is insufficient. See Ex parte Franklin, 72 S.W.3d at 675, 678. Affirmative evidence of innocence includes such things as trustworthy witness recantations, exculpatory scientific evidence, trustworthy eyewitness accounts, and critical physical evidence. See id. at 678 n.7.

112. The Court finds and concludes that, to be affirmative evidence of innocence, evidence must prove more than the mere presence of others at a crime scene or that others have motive to commit a crime. Such evidence must also prove that the habeas applicant was in fact not criminally responsible for committing the offense. See Tex. Penal Code Ann. §§7.01, 7.02.

113. The Court notes its previous findings pertinent to the claims encompassed within this Ground for Relief and finds that Applicant has failed to prove by a preponderance of the evidence the existence of affirmative evidence of Applicant’s innocence, scientific or otherwise.

114. The Court finds that Applicant has failed to prove by clear and convincing evidence that no reasonable juror would have convicted her in light of the evidence attached to her Application and associated filings.

115. The Court concludes that Applicant is not entitled to relief as to Ground I and recommends that relief be denied.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF II

In her second ground for relief, Applicant contends that the reporter’s record in this case is manifestly defective, rendering any post-conviction review inadequate and violating due process.

116. The Court of Criminal Appeals ordered this court to conduct an independent review of the reporter’s record prepared by Sandra Halsey to ensure that it conformed to what occurred at trial.

117. This Court, with the agreement of the State and defense counsel, appointed veteran court reporter Susan Simmons to independently review the Halsey record and submit a revised record (“Simmons record”). The Court finds that this Court held twenty-seven post-trial hearings on the matter of the accuracy of the record.

118. The Court finds that Simmons explained the reporting process at one of the many hearings held on this issue. (AR13: 10-17).

119. The Court finds that Simmons was provided with Halsey’s final, printed version of the reporter’s record, as well as Halsey’s translation disks, paper steno notes, audiotapes, and a packet of handwritten notes Halsey had made in the courtroom. (AR13: 18). Simmons then compared Halsey’s printed record against the audiotapes. (AR: 23-24). When she came to a portion of the audiotape she was uncertain of, she would refer to the paper steno notes. (AR13: 24). Using this process, Simmons wrote her corrections on the Halsey record in red ink. (AR13: 23-24).

120. The Court finds that Simmons then used a scopist to type the “red-lined” corrections on copies of the translation disks. (AR13: 25-27). The scopist printed the corrected pages onto paper and gave those back to Simmons. (AR13: 27-28). Simmons compared the printed page to her “red-lined” Halsey record to make sure all the changes had been made by the scopist. (AR13: 28-29). Finally, Simmons generated an index. (AR13: 29-30).

121. The Court finds that the use of audiotapes is a double-check for accuracy and a common, standard practice among reporters. (AR13: 32; AR26: 26).

122. The Court finds that the deficiencies in the Halsey record were caused by a lack of proper editing, rather than an inability to report a trial. (AR13: 34).

123. The Court finds that Simmons did not have an audiotape for the first 54 pages of volume 10, although Simmons concluded that a tape existed at one time. (AR26: 7, 10, 18).

124. The Court finds that, although Simmons did not have an audiotape of the first 54 pages of Volume 10, the pages flowed smoothly, there did not appear to be gaps or lapses, and the steno notes appeared to cover everything in that portion of the record. (AR26: 12, 18).

125. This Court finds that Simmons believes the record is an accurate reconstruction of the steno notes. (AR26: 19, 26-27).

126. The Court finds that Simmons did not feel comfortable certifying the first fifty-four pages in Volume 10 as an accurate transcription of what occurred in the trial proceedings without an audiotape. (AR26: 13, 26). Rather, Simmons stated that they were a true and accurate transcription of Halsey’s notes of the proceedings. See Routier v State, 112 S.W.3d 554, 562 (Tex. Crim. App. 2003).

In her habeas application, Applicant complains that Susan Simmons created a “wholly new reporter’s record” using “unauthenticated and often poor-quality audio tapes.” (Application at 30). Applicant also complains that the record is incomplete due to the fifty-four uncertified pages in Volume 10.

Completeness of the Record

127. The Court finds that Applicant’s complaint that the record is incomplete was raised in her second point of error on direct appeal. There, Applicant argued she was entitled to a new trial under appellate rule 34.6(f) because the uncertified portion of the record, the first 54 pages of volume 10, had been “lost or destroyed” through no fault of her own.

128. The Court finds that the Court of Criminal Appeals decided the issue against Applicant, concluding that Applicant did not show that the uncertified portion of the record was necessary to her appeal. See Routier, 112 S.W.3d at 571-72.

129. Complaints addressed on direct appeal cannot be relitigated on habeas review. See Ex parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App. 1998).

130. This Court concludes that a habeas applicant cannot rely on appellate rule 34.6(f) to obtain a new trial on the ground that a portion of the habeas record has been lost or destroyed because subsection (3) requires an appellant to show that the lost or destroyed portion of the record is necessary to the appeal’s resolution. TEX. R. APP. P. 34.6(f)(3).

131. Applicant fails to present any particular legal rationale for her complaint on habeas. She simply asserts, without reference to any authority, that the record is not certified in its entirety and, therefore, is manifestly defective. (Application at 24).

132. To the extent Applicant may be relying on appellate rule 34.6(f) to challenge the habeas record, this Court concludes her ground for relief should be denied. See TEX. R. APP. P. 34.6(f).

133. To the extent Applicant is relying on rule 34.6(f) to challenge the record filed on direct appeal, this Court concludes her ground for relief is procedurally barred because it was addressed on direct appeal and overruled. See Ramos, 977 S.W.2d at 617.

134. Procedural errors or statutory violations are not cognizable on a writ of habeas corpus. Ex parte McCain, 67 S.W.3d 204, 209 (Tex. Crim. App. 2002).

135. The Court finds that, to the extent Applicant may be relying on appellate rule 34.6(f) to challenge the habeas record, her claim is not cognizable.

136. Alternatively, this Court adopts the findings and conclusion made by the Court of Criminal Appeals pertaining to Applicant’s complaint about the uncertified portion of Volume 10. Routier, 112 S.W.3d at 570-72.

137. In addition, three prosecutors and Applicant’s original appointed defense attorney have tendered affidavits regarding the substance of the proceedings that occurred in those uncertified fifty-four pages confirming that the Simmons record is a substantively accurate transcription of what occurred in the courtroom. (State Writ Exhibits 4, 5, 6, and 7).

138. The Court finds that Applicant has presented no evidence that the first 54 pages of Volume 10 of the Simmons record are incomplete or inaccurate in any way.

139. The Court finds that Applicant fails to prove that the uncertified portion of the first 54 pages of Volume 10 renders the record manifestly defective or insufficient for meaningful habeas review.

140. The Court finds that the first 54 pages of Volume 10 are a substantively accurate transcription of what occurred in the courtroom on that day.

Accuracy and Reliability of Entire Record

Applicant next complains, without supporting legal authority, that the Simmons record is manifestly defective because it is a wholly new record created by using unauthenticated, poor quality audiotapes.

141. The Court finds that this complaint was raised on direct appeal.

142. The Court finds that the Court of Criminal Appeals rejected these claims on direct appeal. Routier, 112 S.W.3d at 564-570.

143. Accordingly, this Court concludes that they are procedurally barred from habeas review and will not be addressed. See Ramos, 977 S.W.2d at 617.

144. In the alternative, this Court adopts the findings and conclusion made by the Court of Criminal Appeals on direct appeal pertaining to Applicant’s complaint about the reliability and accuracy of the entire record. Routier, 112 S.W.3d at 564-70.

Adherence to Due Process

Applicant next complains she was not permitted to develop her objections to the record in the trial court, in violation of due process. She cites Chessman v. Teets, 354 U.S. 156 (1957) to support her claim.

145. The Court finds that this complaint was raised and rejected on direct appeal. In her fourth and fifth points of error, Applicant complained that the procedure used by this trial court violated federal due process and, specifically, Chessman v. Teets.

146. The Court finds that the Court of Criminal Appeals held that Chessman did not support her claim, and that Applicant received ample notice and opportunity to present live witnesses regarding her objections to the Simmons record. Routier, 112 S.W.3d at 572-574.

147. Thus, this Court concludes that Applicant’s complaint that she was not given the opportunity to develop “crucial” information regarding the accuracy of the record is procedurally barred and will not be addressed. See Ramos, 977 S.W.2d at 617.

148. Alternatively, this Court adopts the findings and conclusion made by the Court of Criminal Appeals pertaining to Applicant’s complaint about violations of federal due process. Routier, 112S.W.3d at 572-74.

The Simmons Affidavits Do Not Change the
Outcome Reached by the Court of Criminal
Appeals Regarding the Accuracy of the Record

149. Applicant asks this Court to reconsider her claims on habeas review in light of an affidavit she obtained from Susan Simmons in August 2002. (Applicant’s Writ Exhibit 1).

150. The Court notes that, in response to the Simmons affidavit of August 2002, the State submitted an affidavit signed by Simmons in January 2003. (State’s Writ Exhibit 8). The Court finds that the January 2003 affidavit is consistent with and supports the Court of Criminal Appeals’ rulings on direct appeal.

151. This Court finds that the Simmons affidavit signed in August 2002 adds no facts that would change the outcome reached by the Court of Criminal Appeals on the matter of the accuracy and legality of the reporter’s record.

152. This Court concludes that Simmons’ averment that Halsey’s conduct was “unethical and unprofessional” does not change the analysis and outcome in the Court of Criminal Appeals opinion on direct appeal.

153. The Court finds that Applicant has failed to provide habeas proof that the record is incomplete or inaccurate.

154. Given the facts relied upon in the Court of Criminal Appeals’ opinion on direct appeal and the facts asserted in Simmons’ January 2003 affidavit, the Court concludes that the assertions in Simmons’ August 2002 affidavit regarding Halsey’s notes and Simmons’ inability to certify a portion of volume 10 would not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

155. In the August 2002 affidavit, Simmons next states that she did not intend to certify the non-verbal answers to the voir dire questions or the parenthetical notations regarding the presence or absence of attorneys. Simmons states she cannot certify parenthetical descriptions of non-verbal facts because those facts were not recorded on audiotape. (Applicant’s Writ Exhibit 1).

156. The Court of Criminal Appeals addressed the accuracy of the parentheticals and the recording of non-verbal communication in its opinion on direct appeal.

157. This Court finds that the parentheticals taken down at trial were accurate. To the extent that Simmons made any changes to the parentheticals, this Court finds that they were not material changes. See id. at 568.

158. Accordingly, this Court concludes that the assertions in Simmons’ August 2002 affidavit regarding parentheticals and non-verbal communication would not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

159. Next, Simmons asserts in her August 2002 affidavit that she has no personal knowledge of who made the audiotapes she used to edit the record or of what may have been done to them before they were placed in her custody. (Applicant’s Writ Exhibit 1).

160. The Court finds that the Court of Criminal Appeals’ opinion on direct appeal addressed these concerns about the audiotapes. Routier, 112 S.W.3d at 567-568.

161. The Court of Criminal Appeals noted that testimony from the hearings supports a finding that the tapes were authentic.

162. The Court finds that nothing in Simmons’ August 2002 affidavit changes Simmons’ opinion reflected in her testimony about the quality of the tapes.

163. This Court concludes, therefore, that the statements in Simmons’ affidavit regarding her lack of knowledge as to the authenticity, completeness, and accuracy of the tapes do not change the analysis or decision reached by the Court of Criminal Appeals on direct appeal.

164. The Court of Criminal Appeals also noted in its opinion that Applicant did not present any expert testimony about alteration of tapes and has not requested an expert to test the tapes for alteration. Id. at 567.

165. Likewise, this Court finds that Applicant has failed to present any habeas proof, either by expert or lay witness, regarding the possible alteration of the tapes.

166. The Court further finds that Applicant fails to assert, much less prove, that the audiotapes are inauthentic, inaccurate, or incomplete.

167. Accordingly, this Court finds that the tapes are authentic, complete, and accurate. See Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000) (noting that videotape can be authenticated by its contents, appearance, and surrounding circumstances).

168. On direct appeal, the Court of Criminal Appeals addressed Applicant’s complaint that the Simmons record is a new record that consists only of a transcription of the tapes. Routier, 112 S.W.3d at 563. The Court disagreed with Applicant’s characterization of the Simmons record as a new record, and concluded that it is a corrected transcription of the notes taken at trial by Halsey, which notes were within the range of competent reporting. Id. at 564, 567. The Court rejected all of the legal authority cited by Applicant for the proposition that the tapes should not have been used to correct the record. Id. at 564-567.

169. Accordingly, this Court concludes that the assertions in Simmons’ August 2002 affidavit regarding her use of the tapes in preparing the record do not change the analysis or outcome of the Court of Criminal Appeals’ opinion on direct appeal.

170. This Court finds that the record produced by Simmons was a corrected transcription of Halsey’s trial notes, which were within the range of competent and accepted reporting.

Conclusion

171. As a general rule, habeas corpus should not be used to re-litigate matters that were addressed on appeal. A previously litigated issue is subject to collateral attack, however, where the prior judgment is subsequently rendered void or where the Court has decided to apply relief retroactively after a subsequent change in the law. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).

172. The Court finds that Applicant has not alleged or shown that the Court of Criminal Appeals’ decision on direct appeal has been rendered void or that there has been a change in the law. Applicant merely asks this Court to reconsider her claims on habeas in light of an affidavit she obtained from Simmons on August 2002.

173. Pursuant to the discussion above, this Court concludes that Simmons’ affidavit of August 2002 contains no new, crucial evidence affecting the analysis or decisions made by the Court of Criminal Appeals on direct appeal regarding the accuracy of the record.

174. Applicant states in her Reply to the State’s Answer that the procedural bars do not apply because this habeas proceeding “involves” issues that were not and could not have been raised on direct appeal, including actual innocence, ineffective assistance of counsel, and prosecutorial misconduct.

175. The Court disagrees with Applicant’s interpretation of the procedural bar. The Court notes that the procedural bar relied on in Ramos, 977 S.W.2d at 617 prohibits a habeas Applicant from relitigating matters raised and rejected on direct appeal.

176. The Court finds that, here, Applicant seeks to relitigate the matter of the accuracy of the record, and her objections to the record are identical to or substantively the same as the objections she raised on direct appeal. The fact that she would use the record to present claims on habeas different from the claims made on direct appeal does not alter the fact that it is the accuracy of the record she seeks to relitigate.

177. The Court concludes therefore that Applicant’s complaints about the accuracy of the record are barred to the extent they were raised and addressed on direct appeal, irrespective and independent of any other claims made in the habeas application.

178. This Court also finds and concludes that Applicant has failed to allege and prove facts about the record that might entitle her to relief. See Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998). Applicant simply asks this Court to assume the Simmons record is “manifestly defective” based upon the procedure by which it was created.

179. This Court finds that, after nearly five years of reviewing the appellate record in multiple post-conviction proceedings, Applicant has not presented evidence from any source showing that something happened at trial that is not adequately reflected in the Simmons record.

180. This Court finds and concludes that the record in this case has been proven to be accurate and sufficiently complete in every respect to permit Applicant a fair review of her appeal and of her application for writ of habeas corpus.

Grounds for Relief III and IV

In Ground for Relief III, Applicant claims that she was denied her right under the Sixth Amendment to effective assistance of counsel at trial. (Application at 27-88). In Ground for Relief IV, Applicant claims that the cumulative effect of her trial counsel’s actions violated her constitutional rights. (Application at 88-89).

Conflict of Interest

Applicant claims that she was denied effective assistance of counsel because her lead trial counsel, Doug Mulder, had a conflict of interest. Specifically, Applicant claims that Mulder had a conflict because he previously represented Darin Routier at a show-cause hearing regarding a gag order and because he agreed not to implicate Darin Routier as a condition of his employment. (Application at 27-39).

Procedural Bar

181. The Court notes that claims that are raised and considered on direct appeal may not be relitigated in a habeas corpus proceeding. See Ex parte Ramos, 977 S.W.2d 616, 617 (Tex. Crim. App. 1998).

182. The Court finds that Applicant claimed on direct appeal that Mulder had a conflict of interest because he had previously represented Darin Routier at a show cause hearing on a gag order. (State’s Response Exhibit 20, Table of Contents of Applicant’s Brief on Direct Appeal).

183. The Court finds that the Court of Criminal Appeals considered and rejected Applicant’s claim of a conflict of interest based upon Mulder’s representation of Darin Routier at the show cause hearing. See Routier v. State, 112 S.W.3d 554, 579-86 (Tex. Crim. App. 2003).

184. The Court therefore concludes that Applicant’s claim that Mulder had a conflict of interest based upon his prior representation of Darin Routier at the show cause hearing is procedurally barred.

The Trial Record and Habeas Evidence Do Not Establish
A Conflict Of Interest

185. In the alternative, the Court finds that neither the trial record nor the habeas evidence establishes a conflict of interest.

186. The Court notes that a criminal defendant can show a violation of her right to effective assistance of counsel if she demonstrates that her lawyer had “an actual conflict of interest that adversely affected [her] lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To meet this test, she must show that her counsel: (1) was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997).

Trial Record

187. The Court finds that the record demonstrates that Mulder represented Darin Routier at a show-cause hearing held on the trial court’s pre-trial gag order. (RR.8: 7-8).

188. The Court finds that, at the time of the show-cause hearing, Applicant was represented by appointed counsel Douglas Parks. (RR.8: 7-8).

189. The Court finds that at the show cause hearing Mulder was employed by Applicant’s mother, Darlie Kee, and that he was also representing Darin Routier at Kee’s request.

190. The Court finds that Mulder did not call Darin as a witness during the show-cause hearing and offered no evidence on his behalf. (RR.8: 12).

191. The Court finds that Mulder had no direct knowledge of Darin’s actions that were alleged to have violated the gag order. (RR.8: 12).

192. The Court finds that the issue at the show-cause hearing was whether Darlie Kee, Darin Routier, or Chief Knowles of the Dallas Sheriff’s Office violated the pre-trial gag order by discussing the facts of the murder case. (RR.8: 7-13).

193. The Court finds that the trial judge did not find Darin in violation of the gag order because he did not discuss the facts of the case. (RR.8: 12-13).

194. The Court finds that Mulder requested to be substituted as Applicant’s counsel approximately one month later, on the first day of general voir dire. At that time, Mulder stated that he also represented Kee as a “consultant,” but did not state that he represented Darin Routier. (RR.10: 10).

Habeas Evidence

195. Applicant has attached an Affidavit from her husband, Darin Routier, to her Writ Application. (Applicant’s Writ Exhibit 13).

196. The Court finds that Darin Routier states in his Affidavit that he talked to several people between March and May of 1996 about perpetrating an insurance scam burglary on his home and that he fought with Applicant on the night of the murders and that she asked for a separation. (Applicant’s Writ Exhibit 13).

197. The Court finds that Darin did not tell Mulder about the alleged insurance scam plan or the alleged fight on the night of the murders. (Applicant’s Writ Exhibit 13).

198. Darin states in his Affidavit that he discussed the murder case against Applicant with Mulder several times between July and October of 1996 and that Mulder agreed not to cast blame upon Darin for the murders if Mulder were hired to represent Applicant. (Applicant’s Writ Exhibit 13).

199. Darin states in his Affidavit that he believed Mulder was his attorney based upon comments made by Mulder prior to Mulder being hired to represent Applicant. (Applicant’s Writ Exhibit 13).

200. The Court finds that Darin does not claim in his Affidavit that he provided Mulder any specific confidential information about him that Mulder could not (or did not) use to Applicant’s benefit at trial. (Applicant’s Writ Exhibit 13).

201. The Court finds that Darin’s Affidavit does not reflect that he believed Mulder was his attorney during the trial. (Applicant’s Writ Exhibit 13).

202. Applicant has attached the Affidavit of Darlie Kee, her mother, to her Writ Application. (Applicant’s Writ Exhibit 5).

203. The Court finds that Darlie Kee states in her Affidavit that “Mulder assured us that, if he was in charge of the case, he would not” blame Darin Routier for the murders. (Applicant’s Writ Exhibit 5).

204. The Court finds that Darlie Kee’s Affidavit and Darin’s Affidavit do not reflect that Applicant did not participate in the decision to choose a trial strategy other than “blame Darin.” (Applicant’s Writ Exhibits 5; 13).

205. Applicant has attached the Affidavit of Doug Parks to her Writ Application. (Applicant’s Writ Exhibit 11).

206. The Court finds Parks was Applicant’s appointed counsel prior to Mulder’s substitution in the case. (Applicant’s Writ Exhibit 11).

207. The Court finds that Parks states in his Affidavit that he was concerned that Mulder’s representation of Darin at the show-cause hearing presented a conflict of interest. (Applicant’s Writ Exhibit 11).

208. Parks states in his Affidavit that he planned to implicate Darin as a defensive strategy and believed that such a strategy was required in a zealous defense of Applicant. (Applicant’s Writ Exhibit 11).

209. On September 30, 2003, the Court designated the following controverted issue for resolution pursuant to Article 11.071, §§8(a) and 9(a): “did defense counsel, Douglas Mulder, make an agreement with Darin Routier and/or Darlie Kee not to offer as a possible defense the theory that Darin Routier committed the offense.” (Order Designating Issues).

210. The Court notes that, on October 1, 2003, the Court ordered Mulder to provide the Court with an Affidavit responding to the allegations of Darin Routier and Darlie Kee that he made a promise not to blame the offense on Darin. (Order to Produce Affidavit).

211. On October 31, 2003, Mulder filed an Affidavit with the Court in response to the Court’s Order.

212. The Court finds that Mulder states in his Affidavit: “There were absolutely no restrictions on my representation of Ms. Routier with respect to Darin Routier or anyone else.” (Affidavit of Douglas Mulder).

213. The Court finds that Mulder states in his Affidavit that Darlie Kee asked him to represent Darin Routier on the day of the show-cause hearing on the gag order, that the hearing was very brief, and “[t]hat single incident was the extent of my representation of Mr. Routier.” (Affidavit of Douglas Mulder).

214. Applicant has attached the Affidavit of Sarilda Routier, Darin Routier’s mother, to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

215. The Court finds that Sarilda Routier states in her affidavit that Darlie Kee and Darin Routier told her, prior to hiring Doug Mulder, that Mulder told them “he would not present a ‘blame Darin” defense if hired to represent [Applicant].” (Affidavit of Sarilda Routier, signed November 5, 2003).

216. Applicant has attached the Affidavit of Kenneth Waits to her Renewed Motion for an Evidentiary Hearing, signed November 6, 2003.

217. The Court finds that Kenneth Waits states in his affidavit that he and his wife Melanie attended a hearing in the case prior to Mulder taking over the case and that either Darin Routier or Darlie Kee said “that one of the advantages in hiring Doug Mulder was that he had agreed not to ‘go after’ Darin Routier as the defense (sic) of the case.” (Affidavit of Kenneth Waits, signed November 5, 2003).

218. Applicant has attached the Affidavit of Melanie Waits to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

219. The Court finds that Melanie Waits states in her Affidavit that she attended a hearing in the case prior to Mulder taking over the case and that she heard Darin Routier talking “about hiring Doug Mulder and at one point he said about the court-appointed attorneys: ‘I’m their scapegoat. At least if I hire Doug Mulder, that won’t be [Mulder’s] plan.’” (Affidavit of Melanie Waits signed November 5, 2003).

220. Applicant has attached an Affidavit of her mother, Darlie Kee, to her Renewed Motion for an Evidentiary Hearing, filed November 6, 2003.

221. The Court finds that Darlie Kee states in her Affidavit: “In meetings Darin Routier and I had with Doug Mulder to discuss his representing my daughter, [Applicant], both Darin and I made it clear to Mulder that if he was hired, we did not want him to present a defense at trial that would point the finger at Darin Routier as the actual murderer. Mulder was well aware of this expectation and he said nothing to indicate that he would not meet this expectation.” (Affidavit of Darlie Kee, signed November 5, 2003).

222. The Court notes that Darin Routier, Darlie Kee, and Sarilda Routier are all family members of Applicant and actively supported Applicant at trial, and any rational fact finder would consider the possibility that their affidavits may be colored by bias.

223. The Court finds that Darin Routier, Darlie Kee, and Sarilda Routier did not execute their affidavits accusing Mulder of a conflict of interest until several years after the conviction, even though Applicant began to complain of a conflict of interest during the litigation on the appellate record in 2000.

224. The Court finds that the affidavits of Kenneth Waits and Melanie Waits support the inference that the Waits are “supporters” of Applicant rather than neutral bystanders.

225. The Court finds that Applicant’s habeas evidence does not foreclose the possibility that the decision to hire Mulder was based upon his willingness to attempt a trial strategy other than one that blamed the offenses on Darin.

226. The Court finds that Darlie Kee’s affidavit, attached to the writ application, indicates that the decision regarding the “blame Darin” defense was one of trial strategy because it states that “[Mulder] was not buying in to the theory that Darin was involved in this crime.” (Applicant’s Writ Exhibit 5).

227. The Court finds that Melanie Waits’s affidavit also indicates that the decision regarding the “blame Darin” defense was one of trial strategy because it states that blaming Darin was not “[Mulder’s] plan.” (Affidavit of Melanie Waits, signed November 5, 2003).

228. The Court finds that Applicant has attached no habeas evidence demonstrating that she was not involved in the decision to adopt the strategy to blame the offenses on an intruder rather than Darin.

229. The Court finds that Mulder is an attorney, and that attorneys are deemed to recognize and avoid conflicts of interest because the law and ethical rules require them to do so. See, e.g., Sullivan, 446 U.S. at 346.

230. The Court finds that Mulder, as an experienced trial attorney, would understand the difference between a trial strategy to blame the offense on an intruder rather than Darin and an agreement to protect Darin.

231. The Court is familiar with Mulder, finds that Mulder is a credible witness, finds the statements in the affidavit to be worthy of belief, and accepts the statements contained in the affidavit as true and correct.

232. The Court finds that Applicant has failed to prove by a preponderance of the credible evidence that Mulder’s employment as Applicant’s counsel was contingent upon his agreement not to implicate Darin Routier in the murders.

233. The Court concludes that Mulder’s employment as Applicant’s counsel was not contingent upon his agreement not to implicate Darin Routier in the murders.

Not Actively Representing Competing Interests

234. The Court notes that an actual conflict of interest exists only if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interest. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997).

235. The Court finds that the State did not suggest during trial that Darin participated in the murders, and that the State argued during closing argument at the guilt phase that the crime was either committed by an intruder or the Applicant. (RR.46: 5212-13).

236. The Court finds that Darin Routier testified for the defense, not the State.

237. The Court finds that Darin supported Applicant’s testimony and version of events by testifying that an intruder killed his two sons. (RR.43: 4516-18).

238. The Court finds that Darin contradicted his own prior statements and the testimony of police officers in an attempt to explain his children’s blood on Applicant’s nightshirt. (RR.42: 4293-94; RR.43: 4453-56).

239. The Court finds that Darin assisted the defense by testifying to explanations for why watered down blood was in the sink and why Applicant’s blood was found on the vacuum cleaner. (RR.42: 4298; RR.43: 4459-60).

240. The Court finds that Darin assisted the defense by testifying that he repaired a gate in the back fence, contradicting the testimony of police officers. (RR.42: 4271-72).

241. The Court finds that Darin also assisted Applicant’s good character defense when he testified that Applicant was “the most loving, caring woman I have ever seen” and that she loved the murdered boys “with all her heart.” (RR.42: 4265).

242. The Court finds that Applicant testified that Darin was not involved in the murders because the “intruder” she saw was not her husband and because he could not have left the house through the garage and then re-enter the house and go back upstairs. (RR.44: 4291-93).

243. The Court notes that when testimony of a co-defendant corroborates a defendant, no conflict of interest arises from joint representation. See United States v. Alvarez, 696 F.2d 1307, 1310 (11th Cir.), cert. denied, 461 U.S. 907 (1983).

244. The Court finds that Applicant was represented by three other trial attorneys during her trial—Curtis Glover, Richard Mosty, and S. Preston Douglas, Jr.

245. The Court finds that Applicant was also represented by an appellate attorney during trial—John Hagler.

246. The Court finds that Applicant has brought forward no evidence or argument to demonstrate that these other attorneys were tainted by any conflict of interest.

247. The Court notes that the presence of untainted counsel has been held sufficient to defeat a conflict of interest claim. See, e.g., United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir. 1991)(citing United States v. Partin, 601 F.2d 1000 (9th Cir. 1979)).

No Adverse Affect or Prejudice

248. The Court notes that Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), does not require a defendant to show that she was prejudiced by a conflict of interest, but only that her lawyer’s performance was “adversely affected.”

249. The Court notes that in Mickens v. Taylor, 152 L.Ed.2d 291, 306-307 (2002), the Supreme Court noted that Cuyler v. Sullivan may not apply to situations where a lawyer engages in subsequent representation, and therefore that a defendant may be required to demonstrate prejudice from a conflict that does not involve concurrent representation, rather than mere “adverse effects.”

250. Applicant claims that her counsels’ representation was adversely affected because he did not pursue the theory of Darin as a suspect in the crime and because he could not “cross examine” Darin due to attorney-client privilege. (Application at 31-34).

251. The Court finds that blaming Darin for the murders, while a possible defense strategy, would not of itself exonerate Applicant.

252. The Court finds that, had evidence implicating Darin been offered at trial, it might have helped the State convict Applicant by exposing her to the possibility of conviction as a party to the offense. See Tex. Penal Code Ann. §7.02 (Vernon 2003).

253. The Court finds that Applicant has produced no evidence that Darin Routier provided privileged information to Mulder during the show-cause hearing on the gag order that Mulder could not or did not use at trial.

254. The Court finds and concludes that Mulder was not prevented by attorney-client privilege from using information other than confidential communications received from Darin during the show-cause proceeding.

255. The Court finds that Applicant has failed to prove by a preponderance of the evidence that an attorney-client relationship existed between Darin Routier and Mulder after the show-cause hearing on the gag order.

256. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the proceeding on the gag order and the criminal prosecution against Applicant were substantially related matters.

257. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team was prevented from offering any evidence or defense on Applicant’s behalf because of Mulder’s prior representation of Darin Routier at the show-cause hearing.

258. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Mulder had a conflict of interest.

259. The Court concludes that Mulder had no conflict of interest.

260. The Court finds that Applicant has failed to prove by a preponderance of the evidence that she was prejudiced by Mulder’s prior representation of Darin Routier at the show-cause hearing.

261. The Court concludes that Applicant was not prejudiced by Mulder’s prior representation of Darin Routier at the show-cause hearing.

262. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s representation of her was adversely affected by Mulder’s prior representation of Darin Routier at the show-cause hearing.

263. The Court concludes that Applicant’s trial team’s representation of her was not adversely affected by Mulder’s prior representation of Darin Routier at the show-cause hearing.

264. The Court finds that Applicant failed to prove Mulder’s employment was contingent upon an agreement not to implicate Darin in the offenses.

265. The Court finds that Applicant has failed to prove by a preponderance of the evidence that she was prejudiced by the manner in which Mulder was retained to represent her.

266. The Court concludes that Applicant was not prejudiced by the manner in which Mulder was retained to represent her.

267. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s representation of her was adversely affected by the manner in which Mulder was retained to represent her.

268. The Court concludes that Applicant’s trial team’s representation of her was not adversely affected by the manner in which Mulder was retained to represent her.

“Regular” Ineffective Assistance of Counsel Claims

269. The standard of review for ineffective assistance claims is based on the dictates of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

270. The Court notes that when the record contains no evidence to show the reasons for trial counsel’s allegedly ineffective acts or omissions, the reviewing court cannot conclude that counsel performed deficiently. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Jackson, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A silent record does not require the court to speculate on the reasons behind counsel’s decisions. See Jackson, 877 S.W.2d at 771.

271. The Court finds that Applicant has produced no record or extrinsic evidence of her trial team’s strategy in support of her ineffective assistance claims.

272. The Court finds that Applicant has produced no probative record or extrinsic evidence that her trial team’s strategy was unsound or unreasonable in support of her ineffective assistance claims.

273. The Court finds that Applicant has failed to rebut the presumption that her trial team’s actions were within the realm of sound trial strategy.

274. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s representation was not the result of sound strategy.

275. The Court concludes that Applicant has not shown her trial team was ineffective.

Trial Team Conducted a Reasonable Investigation

276. Applicant claims her trial team rendered ineffective assistance of counsel because they conducted an insufficient investigation of the case. (Application at 39-56).

277. The Court notes that, to prove ineffective assistance of counsel, a defendant must demonstrate that her counsel did not conduct a “reasonable investigation” of the case. “Counsel is not required to pursue every path until it bears fruit or until all hope withers.” Moore v. Johnson, 194 F.3d 586, 616 (5th Cir. 1999)(quoting Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)). As regards experts, counsel is not required to continue searching for experts “until they find an expert willing to provide more beneficial testimony on their behalf.” Dowthitt v. Johnson, 230 F.3d 733, 745 n.10 (5th Cir. 2000).

278. Applicant relies upon the Affidavit of Terry Laber in support of her deficient investigation claim. (Application at 52-60; Applicant’s Writ Exhibit 7).

279. Applicant claims her counsel was ineffective for failing to investigate “scientific evidence to refute the State’s only evidence allegedly connecting [Applicant] to Damon’s death.” (Application at 45-46).

280. The Court finds that Applicant’s habeas evidence demonstrates that Applicant’s trial team investigated scientific evidence in this case. Applicant’s habeas evidence reflects that members of Applicant’s trial team met with Terry Laber and received information developed by him and Barton Epstein regarding the case. (Applicant’s Writ Exhibit 7 8-9).

281. The Court finds that Laber and Barton Epstein had, prior to briefing Applicant’s trial team, discussed the case with Applicant’s first team of lawyers and the State’s trace evidence analyst Charles Linch, examined evidence used at trial, collected samples from Applicant’s night shirt, and reviewed microscopic fiber evidence. (RR.37: 2819-23; Applicant’s Writ Exhibit 7 5).

282. The Court finds that Applicant’s trial team employed investigator Lloyd Harrell to assist in the defense. Harrell had 24 years’ experience as a Special Agent of the Federal Bureau of Investigation and 7 years’ experience as a private investigator at the time of trial. (RR.44: 4761).

283. The Court finds that members of Applicant’s trial team, Doug Mulder, Richard Mosty, Preston Douglas, and Lloyd Harrell, investigated the State’s forensic case by interviewing Charles Linch on November 20, 1996. (RR.37: 2823-25).

284. The Court finds that Harrell met with Linch again on December 19, 1996. (RR.37: 2825-26).

285. The Court finds that Mulder, Mosty, Douglas, and Harrell met with Linch again on December 31, 1996. (RR.37: 2826-27).

286. The Court finds that Mosty spoke with Linch during the trial to further discuss Linch’s findings. (RR.36: 2745-47).

287. The Court finds that Douglas and Harrell examined items of evidence at the District Attorney’s office on December 27, 1996. (RR.28: 9; 14).

288. The Court finds that Mulder, Mosty, and Harrell also met with Kathryn Long, a forensic serologist employed by Southwest Institute of Forensic Sciences(SWIFS), on December 31, 1996. (RR.36: 2703-2704; 2745-47).

289. The Court finds that the State’s blood-spatter expert, Tom Bevel, was interviewed by Mulder, Mosty, Glover, and Harrell on December 30, 1996 for approximately four hours. (RR.39: 3370-71).

290. The Court finds that Bevel faxed his personal notes to Applicant’s trial team on January 2, 1997. (RR.39: 3371).

291. The Court finds that Applicant’s trial team investigated psychological aspect of Applicant’s case by retaining two different psychiatrists, Dr. Lisa Clayton and Dr. Richard Coons. (RR.43: 4615-4656; 4728-33; RR.45: 5122-63).

292. The Court finds that Applicant’s trial team presented evidence from her psychiatrists that Applicant did not fit the “profile” of a murdering mother and that Applicant’s memory was impaired by the trauma she suffered during the offense. (RR.43: 4615-45; 4647-56; RR.45: 5129-46).

293. The Court finds that Applicant’s trial team investigated medical aspects of the case by retaining and consulting with Bexar County Chief Medical Examiner Dr. Vincent DiMaio. (RR.43: 4528-33; DX 94).

294. The Court finds that Applicant’s trial team presented testimony from Dr. DiMaio that Applicant’s wounds were consistent with “defensive wounds” and inconsistent with self-inflicted injuries. (RR.43: 4545-52).

295. The Court finds that Applicant’s trial team presented testimony from Dr. DiMaio that Applicant’s neck wound was within a millimeter or two of being fatal. (RR.43: 4537-40).

296. The Court finds that Applicant’s trial team presented testimony from Dr. DiMaio that the bruising seen on Applicant’s arms after the murder could have been caused by blunt trauma injuries sustained at the time of the murders. (RR.43: 4540-44).

297. The Court finds that the record reveals that Applicant’s trial team investigated evidence of and presented testimony regarding the presence of a “mysterious black car” in the neighborhood of the murders. (RR.42: 4062-64; 4067-68; 4075-78; RR.41: 3994-98).

298. The Court finds that Applicant’s trial team investigated and presented evidence of what was characterized as an attempted burglary at another location in Rowlett on the night of the murders. (RR.42: 4194-98).

299. The Court finds that Applicant’s trial team investigated Applicant’s character and presented testimony from multiple witnesses to show that Applicant was a good mother and to rebut the State’s arguments that Applicant’s post-offense behavior indicated guilt. (RR.40: 3801-04; 3811-12; 3839-40; 3890-92; RR.41 3929-35; 3966-70; 4000; 4006-074225; 4265).

300. The Court finds that Applicant’s trial team discovered fact witnesses whose testimony contradicted State’s witnesses regarding the presence of injuries on Applicant’s arms immediately after the offense. (RR.40: 3808; 3893-94; 4001-03; RR.42: 4323).

301. Applicant claims her trial team was ineffective for failing to present testimony to contradict the testimony of Charles Linch and Tom Bevel. (Application at 52-48).

302. The Court finds that it is reasonable trial strategy to undermine or explain testimony through cross-examination rather than attempt to contradict it with other testimony.

303. The Court finds that Applicant’s trial team used a strategy of undermining the testimony of experts who testified for the State through cross-examination.

304. Applicant also claims that her trial team was ineffective for failing to investigate Darin Routier as a suspect in the crime. (Application at 53-54).

305. The Court finds that Applicant told her trial team (and testified at trial) that Darin was not involved in the offense. Skip Hollandsworth, “Maybe Darlie Didn’t Do it”, Texas Monthly, July 2002; (RR.44: 4921-23).

306. The Court notes that the Supreme Court has stated: “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691.

307. The Court finds that Applicant has presented no other direct evidence, such as attorney notes or records or an affidavit of any of her multiple lawyers, detailing what investigation her attorneys actually conducted.

308. The Court finds that Applicant has presented no direct evidence of the reasoning behind her trial team’s decisions with relation to their investigation of the case.

309. The Court finds that Applicant has presented no probative evidence, such as affidavits of other attorneys qualified and experienced in the defense of death penalty cases, that the investigation conducted by her trial team was deficient or unreasonable trial strategy.

310. The Court finds that decisions regarding which witnesses to call and which avenues of defense to investigate and pursue are necessarily decisions of trial strategy.

311. Applicant claims she was prejudiced by her trial team’s investigation because they did not produce evidence to counter the State’s scientific evidence that the blood on the back of her shirt was cast off as she stabbed her children. (Application at 48).

312. The Court finds that Applicant’s trial team adduced abundant testimony limiting and explaining the State’s blood spatter evidence through cross-examination of the State’s own blood-spatter expert, Tom Bevel.

313. Applicant claims she was prejudiced by her trial team’s investigation because they did not produce evidence to counter the State’s scientific evidence that the fiberglass fibers found on the knife in the Routier kitchen came from the window screen in the garage. (Application at 48-49).

314. The Court finds that Applicant’s trial team adduced abundant testimony limiting and explaining the State’s forensic evidence through cross-examination of Charles Linch by Richard Mosty. (RR.37: 2934-3034; 3051-60).

315. Applicant states that “[i]t was more plausible that the source of the fiber was fingerprint powder used to dust the window screen and then knives found in the kitchen.” (Application at 48, citing Writ Exhibit 10, Affidavit of Palenik at 4). Palenik actually states in his Affidavit that contamination was a possibility, not that it was more plausible than the State’s theory at trial. (Applicant’s Writ Exhibit at 10). Furthermore, the Court finds that the kitchen knives were not dusted with the fingerprint brush used to dust the window screen. (State’s Writ Exhibit 3, Affidavit of David Nabors; State’s Writ Exhibit 23, Report of Roger Smith).

316. The Court finds that Applicant also misstates her habeas evidence when she claims that Terry Laber’s Affidavit state’s that cuts on Applicant’s night shirt could not have been made by her. (Application at 50, citing Applicant’s Writ Exhibit 7 6). Laber’s Affidavit actually states that he recommended further testing of the nightshirt, not that Applicant could not have made the cuts in question. (Applicant’s Writ Exhibit 7 6.c, 12.a (p.5), 12.a (p.6)).

317. Applicant claims she was prejudiced by her trial team’s investigation because they did not discover evidence of an alleged “insurance scam” planned by Darin. (Application at 53-56).

318. The Court finds that the Routiers’ financial situation was a hotly contested issue at trial.

319. The Court finds that the trial record reveals:

  • A neighbor mentioned the Routiers’ financial situation to the police (RR.32: 1399-1400);
  • Documents recovered from the room where the murders occurred included life insurance policies on the murdered boys (RR.37: 1751; 1756);
  • Documents recovered from the Routiers’ trash included a letter showing that Applicant’s American Express account was $964 overdue and that her mortgage payment was two months past due (RR.33: 1681; RR.42: 4358; RR.43: 4510; SX 83A; SX. 83B);
  • Investigators learned that the Routiers were turned down for a $5000 vacation loan due to excessive debt and delinquent accounts only five days before the murders (RR.34: 2120-29).

320. The Court finds that Darin Routier vigorously disputed the States evidence that the family was in financial difficulty, but admitted that his business had slowed, he was behind on his taxes, was behind on his office rent, and had large credit card debts. (RR.42: 4248-57; 4354-56; 4364; RR.43: 4445).

321. The Court finds that evidence of the alleged insurance scam might have strengthened the State’s case showing a financial motive for the murders.

322. Applicant also claims, relying on Laber’s affidavit, that she was prejudiced because evidence was not presented that Darin had areas of “blood spatter” on his jeans consistent with him being present during the stabbing. (Application at 53-54, citing Applicant’s Writ Exhibit 7 11).

323. The Court finds that Applicant has misstated her habeas evidence. In his Affidavit, Laber suggests that genetic testing be performed on blood stains on Darin’s Jeans. (Applicant Writ Exhibit 7 “12.f” p.6). Laber does not use the term blood spatter with reference to Darin’s jeans, although he uses that term elsewhere in his Affidavit. (Applicant’s Writ Exhibit 7 “12.a” p.5). This distinction is important because Laber’s use of the term “spatter” is a clear reference to blood cast off or separated during the stabbing. (Applicant’s Writ Exhibit 7 “12.a” p.5). Laber does not state in his Affidavit that any evidence suggests that Darin was present at the stabbings. (Applicant’s Writ Exhibit 7).

324. The Court finds that Applicant has adduced no evidence showing that the blood present on Darin’s jeans was inconsistent with his attempts to resuscitate Devon, an act witnessed by the Rowlett Police. (RR.29: 311-12; RR.44: 4872-73).

325. Applicant alleges that her trial team failed to call psychiatrists or experts proficient in “disassociative symptoms” or any experts to testify about the mourning process. (Application at 50 n.9). The trial record, however, reflects that Applicant’s trial team consulted with and presented testimony from two psychiatrists, Dr. Lisa Clayton and Dr. Richard Coons. (RR.43: 4615-56; RR.45: 5122-46). Dr. Coons specifically testified about disassociation and testified that, in his opinion, a person who underwent traumatic events like those alleged by Applicant could suffer from disassociation and not remember important facts about the traumatic event. (RR.45: 5129-46). Dr. Clayton also testified that, in her opinion, Applicant suffered from “traumatic amnesia,” a type of disassociation. (RR.43: 4651; 4647-52). Dr. Clayton specifically testified that Applicant’s behavior after the murders represented appropriate “grieving.” (RR.43: 4648-50). Dr. Clayton testified that “grieving” is a “very individual response” and that medication can affect this response. (RR.43: 4649-50).

326. Applicant complains that her trial team did not call an expert regarding bruising. The trial record, however, reflects that Applicant’s trial team discussed bruising in depth with their expert, Bexar County Chief Medical Examiner Vincent DiMaio. (RR.43: 4540-45). Dr. DiMaio testified that the bruising represented “extensive hemorrhage.” (RR.43: 4541). The bruising appeared to be a “few days” old because of the color. (RR.43: 4541). According to Dr. DiMaio, the bruising was not caused by the medical treatment received by Applicant, including an iv, and was not caused by the knife wounds on Applicant’s arms. (RR.43: 4541-43). Dr. DiMaio testified that the bruising was caused by Applicant being beaten with a blunt instrument. (RR.43: 4544). According to Dr. DiMaio, the bruising was consistent with injuries having been received at the time of the murders. (RR.43: 4544). Finally, Dr. DiMaio testified that the bruising was inconsistent with self-inflicted injuries. (RR.43: 4545). Applicant’s trial team also presented evidence regarding the bruising from Karen Neal, a registered nurse experienced in post-operative care, intensive care, and cardiology. Neal testified that she noticed bruising on Applicant’s arm during her first day in the hospital. (RR.41: 3983-84; 4001-4003).

327. The Court finds that Applicant has failed to rebut the presumption that her trial team exercised sound strategy in the investigation of the case.

328. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s investigation was unreasonable.

329. The Court concludes that Applicant’s trial team’s investigation was not unreasonable.

330. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s investigation prejudiced her.

331. The Court concludes that Applicant was not prejudiced by her trial team’s investigation of the case.

Character Evidence

332. Applicant claims her trial team was ineffective in that it allowed the State to offer character evidence against her during the guilt phase of the trial, including that she was self-centered, materialistic, had a temper, was the dominant person in her marriage, had breast implants, and placed pocket knives and tarot cards in her sons’ casket. Applicant also challenges her counsels’ handling of evidence regarding the lyrics of a song played at the funeral, trips to a pawn shop to buy jewelry, and “girls night out.” (Application at 56-66).

333. The Court finds that Applicant has offered no evidence in this habeas proceeding regarding her trial team’s defensive strategy, and in particular her trial team’s strategy regarding character evidence.

334. The Court notes that when the record contains no evidence to show the reasons for trial counsel’s allegedly ineffective acts or omissions, the reviewing court cannot conclude that counsel performed deficiently. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Jackson, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A silent record does not require the court to speculate on the reasons behind counsel’s decisions. See Jackson, 877 S.W.2d at 771.

335. The Texas Rules of Evidence provide that a defendant may rely on character evidence as a defense. See Tex. R. Evid. 404(a)(1)(A).

336. The Court notes that the State may rebut character evidence offered by a defendant. Tex. R. Evid. 404(a)(1)(A).

337. The Court also notes that, while specific instances of conduct are not admissible as evidence of a person’s character, specific instances of conduct are admissible as proof of such things as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See Tex. R. Evid. 405; 404(b).

338. The Court also notes that a character witness may be cross-examined regarding relevant specific instances of conduct. Tex. R. Evid. 405(a).

339. The Court finds that the decision whether to put a defendant’s character into issue is necessarily one of trial strategy. See Smith v. Moore, 137 F.3d 808, 817 (4th Cir. 1998).

340. The Court finds that Applicant’s trial team put her character at issue in their opening statement in the guilt phase of the trial when they told the jury they would hear about a devoted mother, an “American Mother,” whose life “focused around the children.” (RR.28: 44-45; 52).

341. The Court finds that Applicant’s trial team called multiple character witnesses at trial who provided favorable character evidence, to-wit:

  • Sherry Moses testified that Applicant was “a gentle mother, always very patient with them and just so, soft-spoken with them, even, you know, when they were ornery or something, she would be just so gentle with them . . . [s]he never spanked them, just tell them to behave” and that she was “a wonderful mother” with “incredible” patience. (RR.40: 3801-02).
  • Dana Godfrey testified that Applicant “was good . . .[s]he was a good mother, caring . . . [she] was always there if you ever needed her to talk to. She was just a sweet, good person . . . [a]lways. (RR.40: 3875).
  • Cara Byford described Applicant as: “[k]ind-hearted . . . [o]ne of the nicest people I have met . . . [s]he would do pretty much anything for you . . . generous. (RR.40: 3889-90).
  • Julie Clark testified that Applicant loved animals and had a “Very loving relationship” with the murdered boys. (RR.41: 3928-29). Clark also denied that Applicant was selfish, self-centered, or materialistic. (RR.41: 3930-31).
  • LuAnn Black testified that Applicant was a “sweet person, caring, thoughtful” and generous. (RR.41: 3965-66). According to Black, Applicant “loved her children very, very much” and protected them. (RR.41: 3966). Applicant was not selfish or materialistic. (RR.41: 3967).
  • Karen Neal testified that Applicant was “very compassionate, very outstanding with her children . . . [s]he made sure the children treated everyone equally.” (RR.41: 4005). Applicant taught her children not to discriminate based on race or wealth. (RR.41: 4006). Neal denied that Applicant was selfish or self-centered. (RR.41: 4006). Applicant was generous, and she helped less fortunate families during Christmas. (RR.41: 4006).
  • Sarilda Routier testified that Applicant was “the daughter-in-law that everyone would love to have.” (RR.42: 4225). Sarilda denied that Applicant was selfish or materialistic. (RR.42: 4226).
  • Darin Routier testified that Applicant was: “[t]he most loving, caring woman I have ever seen.” (RR.42: 4265). Applicant loved the murdered boys “with all of her heart.” (RR.42: 4265).

342. The Court finds that Applicant’s trial team emphasized their good character defense in closing arguments: “By all accounts this is an attentive, doting mother whose focus is on her children.” (RR.46: 5260). The trial team reminded the jury that the State’s witnesses also gave character evidence favorable to Applicant. (RR.46: 5260). Applicant’s lead counsel presented a closing argument that tied the character evidence together and highlighted the weakness of the State’s rebuttal character evidence. (RR.46: 5292-93).

343. The Court finds that Applicant’s trial team chose a character defense as one component of their trial strategy.

344. The Court finds that Applicant has adduced no evidence that her trial team’s character defense strategy was unreasonable.

345. The Court notes that “character” is “a generalized personal trait or propensity to behave in a certain way.” Cathy Cochran, Texas Rules of Evidence Handbook at 244-45 (4th Ed. 2001).

346. The Court finds that the prosecutor’s statement in opening–“The evidence will show you that the real [Applicant] is, in fact, a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children”–is not evidence of the Applicant’s character. (Cf. Application at 61). It is well-settled law that opening statements and arguments are not evidence. See Powell v. State, 63 S.W.3d 435, 439, 440 n.1 (Tex. Crim. App. 2001)(majority op. and Johnson, J., concurring); Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996). Moreover, that statement merely summarized what other evidence would show in the case and drew inferences from that evidence.

347. The Court finds that evidence regarding Applicant’s breast implants is not evidence of her character because it is not evidence of “a generalized personal trait or propensity to behave in a certain way.” See Cochran, Texas Rules of Evidence Handbook at 244-45 (Cf. Application at 62). Rather, evidence of breast implants is simply a physical fact like her height, weight, hair color, eye color, or blood type.

348. The Court finds that the State did not adduce evidence of Applicant’s breast implants in order to show her character, but rather to develop Darin Routier’s trial testimony regarding Applicant’s concern about her appearance and despondence over gaining weight after the birth of their third child. (RR.42: 4348-49).

349. The Court finds that testimony regarding the music played at the murdered boys’ funeral and pocketknives placed in their casket was not character evidence because it was not evidence of “a generalized personality trait or propensity to behave in a certain way.” See Cochran, Texas Rules of Evidence Handbook at 244-45 (Cf. Application at 62).

350. The Court notes that the complained of testimony regarding music at the funeral and pocketknives in the caskets was brought out by the State in cross-examination. See Tex. R. Evid. 405(a)(noting that character witnesses may be cross-examine regarding specific instances of conduct).

351. The Court finds that evidence that Applicant and Darin Routier shopped at pawnshops was not character evidence because it was not evidence of “a generalized personality trait or propensity to behave in a certain way,” see Cochran, Texas Rules of Evidence Handbook at 244-45, but that such evidence was relevant to Applicant’s financial motive. (Cf. Application at 63).

352. The Court finds that evidence of the Routiers’ material possessions was not evidence of Applicant’s character of because it did not demonstrate “a generalized personality trait or propensity to behave in a certain way,” see Cochran, Texas Rules of Evidence Handbook at 244-45, but such evidence was relevant in conjunction with other evidence to demonstrate a financial motive for the crime. (Cf. Application at 64).

353. The Court finds that evidence of Applicant’s demeanor after the offenses was not character evidence because it was not evidence of “a generalized personality trait or propensity to behave in a certain way,” See Cochran, Texas Rules of Evidence Handbook at 244-45, but was relevant on the issue of Applicant’s identity as the murderer because it showed she was not acting in a manner consistent with her claim that she was a victim of the offense. (Cf. Application at 64).

354. The Court finds that the prosecutor’s question to Darin Routier, “You got off the track, you got on the material side of life, and you lost sight of your two children for a while, didn’t you?” was not character evidence or evidence at all because it was a question, not testimony from a witness. In fact, Darin Routier denied that he lost track of his children in response to the prosecutor’s question. (RR.42: 4363-64). (Cf. Application at 64-65).

355. The Court finds that the prosecutors’ arguments regarding Applicant’s thoughts, motivations, feelings, and actions are not evidence of her character, but rather permissible arguments summarizing evidence and making reasonable deductions from the evidence. See Smith v. State, 898 S.W.2d 838, 845 (Tex. Crim. App. 1995)(Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing counsel; and 4) pleas for law enforcement). (Cf. Application at 65).

356. The Court finds that Applicant’s trial team ably used the nature of the State’s character evidence against the State during closing arguments. Richard Mosty pointed to the favorable character testimony of a State’s witness. (RR.46: 5260). Mosty also attacked the State’s references to the murdered boys’ favorite song, “Gangsta’s Paradise.” (RR.46: 5273). Finally, Mosty effectively turned the breast implant and lifestyle testimony against the State. (RR.46: 5280-81).

357. The Court finds that Applicant has failed to rebut the presumption that her trial team exercised sound strategy with regard to their character defense of Applicant.

358. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s character defense strategy was unreasonable.

359. The Court concludes that Applicant’s trial team’s character defense strategy was not unreasonable.

360. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s character defense strategy prejudiced her.

361. The Court concludes that Applicant was not prejudiced by her trial team’s character defense strategy.

Hearsay

362. Applicant claims her trial team was ineffective in allowing the State to offer inadmissible hearsay evidence. (Application at 66-70).

363. The Court notes that trial counsel can decide to forego objecting to evidence in the exercise of reasonable trial strategy. See, e.g., Hathorn v. State, 848 S.W.2d 101, 119-20 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 932 (1993).

364. Applicant claims that her trial team was ineffective in allowing Darin Routier to be cross-examined with statements he made to a CPS investigator. (Application at 67-68).

365. The Court notes that prior inconsistent statements of a witness are admissible for the purposes of impeachment. See Tex. R. Evid. 613; see also Cochran, Texas Rules of Evidence Handbook 566, 748.

366. The Court finds that Darin Routier testified on direct examination that Applicant was “[t]he most loving, caring woman I have ever seen” and that she loved the murdered boys “with all of her heart.” (RR.42: 4265).

367. The Court finds that the prosecutor asked Darin Routier whether he remembered telling Jamie Johnson of CPS that Applicant “wanted everything perfect in the house. That she was a cleanaholic, its – ‘It’s kind of an obsession. She will clean and clean, but the kids would be right behind her making bigger messes.” (RR.42: 4343). The Court finds that Darin admitted he may have said something like this. (RR.42: 4343). Darin denied telling Jamie Johnson that there was “no time for [Darin] and [Applicant] to be sexy or run around in the house naked.” (RR.42: 4346-47). Darin denied telling Jamie Johnson that “[a] light went off in [Darin’s] head saying [Applicant] needs help.” (RR.42: 4352).

368. The Court finds that Darin’s statements to the CPS investigator were admissible to impeach his character testimony regarding Applicant and to show his bias in favor of Applicant because his trial testimony in her favor had improved markedly from what he told CPS.

369. The Court finds that Johnson did not testify and that the only evidence regarding the statements were Darin’s admissions or denials.

370. The Court notes that, to the extent Darin denied making the statements, the State could have offered extrinsic proof of the inconsistent statements. Tex. R. Evid. 613(a).

371. The Court finds that Applicant has adduced no affirmative proof, such as an Affidavit from the CPS investigator or documents from her file, showing that Darin did not make the statements in question.

372. Applicant also complains regarding the admission of statements Darin made to the CPS investigator and Corinne Wells describing Applicant’s version of events on the night of the murder. (Application at 68).

373. The Court finds that Darin testified on direct examination that Applicant told him:

Just that she had felt Devon -- Damon waking her up saying, “Mommy, Mommy, Mommy.” And then she looks up over her and she sees a glimpse of this man going towards -- I don’t know how, probably, maybe at the island, I don’t know -- going from the kitchen, probably two to three seconds of a glimpse of this man going into the utility room and then gone.

* * * * *

She said that he had already gone out of the utility room, and then she went around towards him, and Damon was standing right beside her, and she asked him to stay back, and she walked across the room, across the kitchen, and when she looked down, there was a knife in the -- right there in the doorway, and she said that she reached down to pick it up and when she did, her neck just spewed blood all over the floor. That is when she realized that she was cut. (RR.43: 4462-63).

Darin testified that Applicant had never told him a different version of what happened. (RR.43: 4464).

374. The Court finds that Darin admitted on cross-examination that he told the CPS investigator that Application woke up because she felt the weight of an “intruder” on her legs. (RR.43: 4465-66).

375. The Court finds that Darin admitted on cross-examination that he told Corinne Wells, a woman who lived in the Routier’s former home on Bond Street, that the “intruder” intended to rape Applicant. (RR.43: 4468).

376. The Court finds that Darin’s statements to the CPS investigator and Corinne Wells were inconsistent with his earlier testimony regarding what Applicant told him about the offense.

377. The Court finds that the statements were admissible to impeach Darin’s prior testimony. See Tex. R. Evid. 613.

378. Applicant complains that her counsel were ineffective in failing to object to testimony from Karen Neal and William Gorsuch that the police brought Neal into the crime scene to remove Applicant’s Pomeranian dog because he nipped at them. (Application at 68-69).

379. The Court notes that statements are hearsay only if offered for the truth of the matter asserted. See Tex. R. Evid. 801(d).

380. The Court finds that the trial judge could have found that the statements about Applicant’s dog were not offered to show the truth of the matter asserted—that the dog tried to bite the police—but rather to explain why the police brought a civilian into the crime scene during the investigation.

381. The Court finds that Applicant has adduced no evidence that the prosecutors could not have elicited the statements in another admissible form.

382. Applicant also complains about her trial team’s failure to object to testimony adduced through Darin Routier that neighborhood children used the window in the garage to enter the garage and get popsicles. (Application at 69).

383. The Court finds that Applicant has adduced no evidence that the prosecutors could not have elicited the statement in question in another admissible form.

384. The Court finds that Applicant has adduced no evidence of her counsels’ trial strategy regarding the hearsay in question.

385. The Court notes that it can be a reasonable trial strategy to forego objecting to evidence if the objection will ultimately prove to be futile. See Hathorn, 848 S.W.2d at 119.

386. The Court notes that a lawyer is not ineffective for failing to object to evidence that is in fact admissible. See Austin v. State, 934 S.W.2d 672, 675 (Tex. Crim. App. 1996); Kizzee v. State, 788 S.W.2d 413, 415 (Tex. App.–Houston [1st Dist.] 1990, pet. ref’d).

387. The Court finds that Applicant has failed to rebut the presumption that her counsel were acting in accordance with reasonable trial strategy with regard to any hearsay.

388. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s defense strategy was unreasonable.

389. The Court concludes that Applicant’s trial team’s defense strategy was not unreasonable.

390. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective in its handling of the alleged hearsay.

391. The Court concludes that Applicant’s trial team was not ineffective in the way it handled the alleged hearsay testimony.

392. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s handling of the alleged hearsay prejudiced her.

393. The Court concludes that Applicant was not prejudiced by her trial team’s handling of the alleged hearsay.

Daubert Challenges

394. Applicant complains that her trial team was ineffective because it did not raise Daubert challenges to the testimony of doctors, ICU nurses, and James Cron. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Application at 70-78).

395. The Court finds that the defense team challenged the admissibility of portions of Charles Linch’s testimony, Tom Bevel’s testimony, and Alan Brantley’s testimony on Daubert grounds. (RR.37: 3045; RR.38: 3238-45; 3279-83; 3312; RR.39: 3585-88; RR.40 3616-38). The trial team also perfected a bill of exception supporting their challenge to Brantley’s testimony. (RR.40: 3786-92).

396. The Court finds that Applicant has adduced no evidence regarding the strategy of her trial team as regards the testimony of the doctors, nurses, and Cron.

397. When the record contains no evidence to show the reasons for trial counsel’s allegedly ineffective acts or omissions, the reviewing court cannot conclude that counsel performed deficiently. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Jackson, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A silent record does not require the court to speculate on the reasons behind counsel’s decisions. See Jackson, 877 S.W.2d at 771.

398. Trial counsel can decide to forego objecting to evidence in the exercise of reasonable trial strategy. See, e.g., Hathorn, 848 S.W.2d at 119-20.

Nurses and Doctors

399. The Court finds that Applicant has failed to adduce evidence or cite applicable authority that the nurses and doctors who treated Applicant gave “expert” opinion testimony of the kind governed by Daubert and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

400. The Court notes that Texas Rule of Evidence 701 allows the admission of non-expert opinion testimony if it is rationally based upon the perception of the witness and helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Tex. R. Evid. 701; Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).

401. The Court notes that the Court of Criminal Appeals stated in Fairow:

So, while a witness cannot possess personal knowledge of another’s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn. The jury is then free to give as much or as little weight to the opinion as possible. Therefore, we conclude that once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. Fairow, 943 S.W.2d at 899.

402. The Court finds that the nurse’s testimony was admissible under Rule 701 because it was based upon their personal perceptions of Applicant and previous patients who lost loved ones due to trauma.

403. The Court finds that Applicant has failed to adduce evidence or cite applicable authority that the ER and ICU nurses and doctors are not trained to observe and evaluate the objective mental and emotional condition of their patients as well as their physical conditions in order to facilitate any necessary mental health treatment.

404. The Court finds that Chris Wielgosz, an ICU nurse that treated Applicant, testified:

I was concerned that maybe this person would be emotionally distraught or hysterical. Didn’t [sic] really know what to expect, but that was kind of what I thought I might be experiencing and in store for. So, I was thinking that I would need to prepare for a patient that was in that emotional state. (RR.31: 933)(emphasis added)

405. The Court finds that Wielgosz’s testimony demonstrates that the nurses observed Applicant in order to facilitate their treatment of her.

406. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the nurses’ and doctors’ testimony was inadmissible under Rules 701 and 702 of the Texas Rules of Evidence.

James Cron

407. The Court finds that the trial record contains abundant evidence regarding Cron’s experience and training as a crime scene investigator. Cron worked for the Dallas County Sheriff’s Office for 29 years after six years as a civilian employee with the Dallas Police Department. (RR.34: 2142). Cron founded the Physical Evidence Section of the Sheriff’s Office. (RR.34: 2144). Cron was a member of the International Association for Identification, the International Association of Bloodstain Analysts, and the Association of Homicide Investigators of Texas. (RR.34: 2144-45). Cron received training at the FBI Academy and various police departments and academies, and he had taught at universities and police departments. (RR.34: 2146-47). Cron authored papers published in Fingerprint Identification Magazine and The Journal of Forensic Identification. (RR.34: 2147). Cron was certified as a latent print examiner and as a senior crime scene analyst. (RR.34: 2148). Cron had investigated some 21,000 scenes of criminal and civil cases, including 4,300 cases involving deaths. (RR.34: 2149).

408. The Court finds that Applicant has adduced no evidence regarding her trial team’s strategy regarding Cron’s testimony.

409. Trial counsel can decide to forego objecting to evidence in the exercise of reasonable trial strategy. See, e.g., Hathorn, 848 S.W.2d at 119-20.

410. Applicant claims that Cron’s testimony was inadmissible under Daubert and Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).

411. The Court notes that Rule 702 of the Texas Rules of Evidence allows for a broader ranger of evidence than merely scientific testimony. See Tex. R. Evid. 702; Nenno v. State, 970 S.W.2d 549, 560-61 (Tex. Crim. App. 1998).

412. The Court notes that when the field of expertise under review is one other than “hard science,” the applicable test for admission under rule 702 is whether: (1) the field of expertise is a legitimate one; (2) the subject matter of the expert’s testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. Nenno, 970 S.W.2d at 561.

413. The Court finds that Applicant has adduced no evidence, and the record contains none, demonstrating that crime scene analysis is not a legitimate field, that Cron’s opinion testimony was not within the scope of that field, or that his opinion testimony was not properly founded upon principles in that field.

414. The Court finds that Cron testified that much of the field of crime scene analysis is “common sense” and knowing what to look for. (RR.35: 2395).

415. The Court finds that Applicant’s trial team used Cron’s testimony to their advantage by asserting that the investigation focused on Applicant too soon. Applicant’s counsel repeatedly pointed out that Cron reached his initial conclusion about the crime scene after only 20 minutes of investigation. (RR.46: 5252; 5253; RR.35: 2365-66; 2380-81).

416. The Court finds that Applicant’s trial team adduced testimony that Cron lacked a college degree and that much of his experience dealt with fingerprints. (RR.35: 2316-19).

417. The Court finds that Applicant’s trial team adduced testimony from Cron regarding the presence of unidentified fingerprints at the window Applicant alleges was used by an intruder to enter the house and commit the murders. (RR.35: 2341-42).

418. The Court finds that Applicant’s trial team adduced testimony from Cron that certain pieces of evidence were collected incorrectly. (RR.35: 2385-86).

419. The Court finds that Applicant has failed to rebut the presumption that her counsel were acting in accordance with reasonable trial strategy with regard to Daubert challenges to the testimony of the nurses, doctors, and James Cron.

420. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s defense strategy was unreasonable as regards Daubert challenges to the testimony of the nurses, doctors, and James Cron.

421. The Court concludes that Applicant’s trial team’s defense strategy was not unreasonable as regards Daubert challenges to the testimony of the nurses, doctors, and James Cron.

422. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective in declining to make Daubert challenges to the testimony of the nurses, doctors, and James Cron.

423. The Court concludes that Applicant’s trial team was not ineffective in declining to make Daubert challenges to the testimony of the nurses, doctors, and James Cron.

424. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s declining to make Daubert challenges to the testimony of the nurses, doctors, and James Cron prejudiced her.

425. The Court concludes that Applicant was not prejudiced by her trial team’s decision not to make Daubert challenges to the testimony of the nurses, doctors, and James Cron.

Police Interview of Applicant at Hospital

426. Applicant claims her trial team was ineffective for failing to object to the admission of statements she made to the police while in the hospital because the admissions were involuntary. (Application at 78-81).

427. The Court finds that Applicant has adduced no evidence of her trial team’s strategy as regards the statements she made to the police at the hospital.

428. The Court notes that defense counsel can even offer inculpatory evidence as long as it is pursuant to a reasonable trial strategy. See, e.g., Marlow v. State, 886 S.W.2d 314, 318 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d)(holding that Marlow’s lawyer was not ineffective for offering an inculpatory statement as part of a trial strategy to rebut intent and show self-defense).

429. The Court finds that the trial record reveals the following regarding the interview of Applicant at the hospital by the Rowlett Police Detectives assigned to the case:

After Applicant received exploratory surgery on her neck wound, she was transported to the Intensive Care Unit of Baylor Hospital. (RR.30: 719; 723-26; 737-38; R.31: 854). Applicant was alert, lucid, and answered questions from one of the ICU nurses. (RR.31: 911-12). At that time, Applicant made spontaneous statements to her nurse, Chris Wielgosz. (RR.31: 914-15). Specifically, she stated: “How could anyone do this to my children?” (RR.31: 915-16). Applicant also stated aloud that she had picked up the knife after the attacker dropped it, and she expressed concern that her fingerprints would obscure those of the attacker. (RR.31: 916).

Applicant complained of pain and asked for pain medication. (RR.31: 918-19). Wielgosz did not giver her pain medication because he knew that the police wanted to interview her. (RR.31: 919). When the police arrived, Wielgosz administered small amounts of demerol and phenergan. (RR.31: 919-920). Wielgosz administered only enough medication to take the edge off Applicant’s pain while not making her lethargic or sleepy. (RR.31: 920). At that time, she was interviewed by Detectives Jimmy Patterson and Chris Frosch of the Rowlett Police Department. (RR.31: 921; 924; 925).

Wielgosz was present during the interview by the detectives. (RR.31: 922). The detectives asked Applicant to “start at the beginning.” (RR.31: 922). Wielgosz described the questioning as “very methodical” and “very unobtrusive.” (RR.31: 928). The detectives did not badger Applicant or suggest answers. (RR.31: 928-29). Applicant appeared to understand the questions and was alert. (RR.31: 929). Applicant showed no signs of shock, and did not appear to be suffering the effects of anesthesia from her surgery. (RR.31: 929).

430. The Court finds that none of Wielgosz’s testimony demonstrates that Applicant did not wish to speak to the detectives, or that she ever requested an attorney. (RR.31: 907-971).

431. The Court finds that Dr. Lisa Clayton, one of Applicant’s two expert psychiatrists, testified that demerol and phenergan would disinhibit a person. (RR.43: 4646). Their effect would be like a “truth serum.” (RR.43: 4646). These drugs would decrease a person’s ability to lie and make it more likely that they would tell the truth. (RR.43: 4647). It was Dr. Clayton’s medical opinion that, because Applicant was questioned while under the influence of these drugs, but did not confess, she was telling the truth. (RR.43: 4647).

432. The Court notes that Clayton’s favorable testimony that Applicant “told the truth” is inadmissible in Texas. See Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997).

433. The Court finds that Applicant’s trial team highlighted the “disinhibiting” nature of the drugs used to treat Applicant and Dr. Clayton’s testimony that Applicant “told the truth” during their closing arguments. (RR.46: 5275; 5310). The defense arguments also highlighted the State’s decision not to present testimony rebutting Dr. Clayton. (RR.46: 5310).

434. The Court finds that Applicant’s statements to the detectives were not inculpatory. (RR.31: 922-25; 927-29).

435. The Court finds that Applicant claims that her statement to the police detectives at the hospital was involuntary and inadmissible under Mincey v. Arizona, 437 U.S. 385 (1978).

436. The Court notes that Mincey was shot during a warrantless drug raid at his home that resulted in the death of a police officer. Id. at 389-95. After the shooting, Mincey was transported to a hospital for treatment. At the hospital Mincey, received treatment for a gunshot wound to the hip. A tube was placed in his throat to help him breath, a tube was placed through his nose into his stomach to prevent vomiting, and he was catheterized. He received drugs and was admitted to the intensive care unit. Id. at 396.

At 8 p.m. on the night of the shooting, a homicide detective arrived at the intensive care unit to interrogate Mincey. Mincey was unable to speak, so he responded to questions by writing notes to the detective. The detective told Mincey he was under arrest for murder, and informed Mincey of his rights under Miranda v. Arizona, 384 U.S. 436 (1968). The detective questioned Mincey for almost four hours even though Mincey repeatedly requested that the detective stop questioning him until he could have a lawyer. Mincey, 437 U.S. at 396.

The prosecution in Mincey conceded at trial that the interrogation violated Miranda, rendering Mincey’s statements inadmissible in the prosecution’s case-in-chief. The prosecution used the statements to impeach Mincey’s trial testimony. Mincey, 437 U.S. at 397 n.12. This is permissible under Oregon v. Hass, 420 U.S. 714 (1975).

The Supreme Court’s opinion specifically noted Mincey’s desire not to speak with the detective no less than seven times in its opinion. Id. at 396, 399-401. Mincey lost consciousness at times, stated that he was confused and unable to think, and gave some incoherent answers to the detective’s questions. Mincey, 437 U.S. at 398 & n.15, 399-401.

437. The Court finds that Mincey stands for the proposition that the prosecution cannot use statements obtained from a defendant when police continuously interrogate the arrested defendant, who has invoked his right to counsel and repeatedly asked to be left alone, when that defendant is so weakened from injury, pain, medication, and treatment that his will is overborne by the questioning. Mincey, 437 U.S. at 401-402.

438. The Court finds that the record of the trial demonstrates that Applicant was not in the same helpless position occupied by Mincey. Applicant was alert, lucid, appeared to understand the questions asked by the detectives, and did not appear to be suffering the effects of anesthesia. (RR.31: 911-12; 929).

439. The Court finds that, while Applicant complained of pain near the time of the interview, she only rated it as “3” on a “1 to 5” scale. (RR.31: 919). Mincey, by contrast, complained to the interrogating detective that he was suffering “unbearable” pain. Mincey, 437 U.S. at 398.

440. The Court finds that Applicant had not been told she was under arrest or that she was a suspect, unlike Mincey. Indeed, the record does not even show that Applicant was a suspect at the time of the interview. James Cron did not even enter the crime scene until after 6:00 a.m., almost the exact time that Detectives Patterson and Frosch began to interview Applicant. (RR.34: 2156; RR.31: 921-22; RR.42: 4095). The detectives did not meet with Cron until after 8:00 am. (RR.42: 4119-20). The trial record and Applicant’s habeas evidence do not show that the detectives received any word of the assessment of the crime scene during the course of their interview of Applicant.

441. The Court finds that the facts of this case are distinguishable from those in Mincey v. Arizona.

442. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her statements were involuntary.

443. The Court notes that the improper admission of evidence is generally harmless when the same evidence is otherwise before the jury. See, eg., Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999), cert. denied, 145 L.Ed.2d 678 (2000).

444. The Court notes that Applicant made multiple other statements that were admitted into evidence at her trial. (RR.31: 895-97; 923; 982-83; 1029-30; RR.32: 1206-07; RR.36: 2564-65; 2568; RR.43: 4462-62; 4465-66; 4468; SX.32).

445. The Court notes that Applicant did not admit guilt during her hospital interview, or in any of her other statements admitted at trial. (RR.31: 922-25; 927-29).

446. The Court finds that Applicant has failed to rebut the presumption that her trial team acted in accordance with reasonable trial strategy.

447. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s defense strategy to make affirmative use of her interview at the hospital was unreasonable.

448. The Court concludes that Applicant’s trial team’s defense strategy to make affirmative use of her interview at the hospital was not unreasonable.

449. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective in declining to challenge the admissibility of her hospital interview.

450. The Court concludes that Applicant’s trial team was not ineffective in declining to challenge the admissibility of her hospital interview.

451. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s declining to challenge the admissibility of her hospital interview prejudiced her.

452. The Court concludes that Applicant was not prejudiced by her trial team’s decision not to challenge the admissibility of her hospital interview.

Access to Witnesses

453. Applicant claims that her first defense team was ineffective by failing to object to the State’s interference with access to witnesses prior to trial. (Application at 81-84).

454. The Court finds that Applicant’s appointed lawyers did object on this basis, as is noted in her Application. (Application at 81, citing RR.5: 412-13).

455. The Court finds that the dispute regarding access to witnesses occurred during the proof-evident hearing to hold Applicant without bond prior to trial. (See generally RR.5).

456. The Court finds that, after the State rested, Applicant’s counsel attempted to call James Cron as a witness for the defense. (RR.5: 408). The prosecutor objected, noting that the proof-evident hearing was not a forum for the defense to engage in discovery of the State’s trial evidence. (RR.5: 408).

457. Article 39.14 of the Texas Code of Criminal Procedure, which governs discovery in criminal cases, does not authorize depositions of State witnesses during proof-evident hearings.

458. The Court finds that Applicant has cited no other authority that provides that a criminal defendant may engage in a “fishing expedition” during the course of a proof evident hearing.

459. The Court finds that Applicant’s appointed counsel, Doug Parks, admitted on the record that he did not have a good-faith basis to believe that any of the witnesses he desired to question during the proof-evident hearing might give testimony that would undermine the State’s showing in the hearing. (RR.4: 412). Specifically, Parks admitted that he did not know how Cron’s testimony might be contrary to the other evidence already heard by the trial judge. (RR.5: 412).

460. The Court finds that the State was willing to make witnesses available who otherwise could refuse to cooperate with Applicant’s appointed counsel. (RR.5: 413).

461. The Court finds that Park’s statements on the record regarding interference with witnesses could be a misunderstanding of the State’s offer to make witnesses available. (See RR.5: 414-15).

462. The Court finds that Applicant has failed to prove that she was actually denied access to any of the State’s witnesses.

463. The Court finds that the trial record reflects that Applicant’s trial team had unlimited (and unsupervised) access to Charles Linch, Tom Bevel, and Kathryn Long. (Applicant’s Writ Exhibit 7; RR.36: 2703-2704; 2745-47 RR.37: 2819-23; 2823-25; 2825-26; 2826-27; 2827-28; RR.39: 3370-71).

464. The Court finds that Applicant’s experts were allowed to obtain the first samples removed from her nightshirt. (RR.37: 2821).

465. The Court finds that Applicant’s trial team was allowed to view evidence in the possession of the State prior to trial. (RR.28: 9; 14).

466. The Court finds that Applicant identifies no specific witness that she was not ultimately allowed to interview prior to trial.

467. The Court finds that, although Applicant adduced an Affidavit from Doug Parks in support of her Writ, Parks’ Affidavit does not address this issue. (Applicant’s Writ Exhibit 11).

468. The Court finds that Applicant has failed to rebut the presumption that Parks’ action was dictated by sound trial strategy.

469. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Park’s decision in this regard was unreasonable trial strategy.

470. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Parks was ineffective with regard to his investigation.

471. The Court concludes that Parks was not ineffective with regard to his investigation.

472. The Court finds that Applicant has failed to prove by a preponderance of the evidence that she was prejudiced by Parks’ investigation.

473. The Court concludes that Applicant was not prejudiced by Parks’ investigation.

Surveillance Video

474. Applicant claims her trial team was ineffective because it did not offer the police surveillance video of a prayer service held prior to the “silly string” party at the murdered boys’ grave. (Application at 84-88).

475. The Court finds that Applicant has attached no evidence establishing her trial team’s reasoning for withholding the police surveillance video from the jury.

476. The Court finds that Applicant’s trial team attacked the legality of the police actions surrounding the surveillance video by alleging that the detectives committed a felony by planting a hidden microphone on the dead boys’ grave. (RR.43: 4405-31).

477. The Court finds that Applicant’s trial team called Detective Jimmy Patterson as a witness and accused him of committing a felony by having the microphone placed on the grave. (RR.42: 4161-64).

478. The Court finds that Applicant’s trial team ultimately succeeded in getting Detective Patterson to assert his Fifth Amendment privilege in front of the jury even though they never informed him what law he allegedly violated. (RR.42: 4172-75; RR.46: 5288).

479. The Court finds that a civil lawsuit against Detectives Patterson and Frosch, claiming §1983 civil rights violations based upon the grave surveillance, was ultimately dismissed by a federal district court. See Kee v. City of Rowlett, 247 F.3d 206 (5th Cir.), cert. denied, 534 U.S. 892 (2001).

480. The Court finds that Applicant’s trial team adduced testimony that Applicant mourned “appropriately” during a graveside service earlier in the day of the birthday party at the grave, and therefore the surveillance video was cumulative of other evidence admitted at trial. (See, e.g., RR.40: 3811-12; 3843-45; 3934-35; 3970-71).

481. Applicant has attached to her Application the Affidavit of Charles Samford, a juror from her trial. (Applicant’s Writ Exhibit 15).

482. Samford states in his Affidavit that the jury watched the “silly string” video 8 or 9 times during jury deliberations. Samford states that he had subsequently seen what was represented to be the surveillance video. Samford states that, had he seen the surveillance tape, he would not have voted to convict Applicant. (Applicant’s Writ Exhibit 15).

483. The Court finds that Samford executed his Affidavit on July 10, 2002, over five years after the end of the trial. (Applicant’s Writ Exhibit 15).

484. The Court notes that Rule 606(b) of the Texas Rules of Evidence provides that “a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may any juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted into evidence for any of these purposes.” Tex. R. Evid. 606(b).

485. The Court finds that a juror’s affidavit that the juror would have voted a different way based upon evidence not heard by the jury is necessarily testimony as to the “effect” of that evidence on the juror’s “assent to” the verdict. See Tex. R. Evid. 606(b).

486. The Court notes that the purpose of current Rule 606(b) is to prevent harassment of jurors and to protect the secrecy of jury deliberations. See, e.g, Cochran, Texas Rules of Evidence Handbook 560; see also Tanner v. United States, 483 U.S. 107,118-21 (1987).

487. The Court finds and concludes that Samford’s Affidavit is not admissible, not competent habeas evidence, and cannot be considered by the Court in considering Applicant’s claim.

488. In the alternative, the Court finds that Samford’s Affidavit does not account for the probability that the State would have explained the surveillance video with other testimony or argument.

489. The Court finds that Samford’s Affidavit, executed over five years after the trial, indicates that he considered the surveillance tape alone, and not in conjunction with all the other testimony, photographic evidence, audio tapes, video evidence, and forensic testimony that the jury considered during deliberations.

490. The Court finds that Samford’s Affidavit does not take into account the presence of the eleven other members of the jury during deliberations or the deliberative process.

491. The Court finds that Applicant has failed to rebut the presumption that her trial team acted according to reasonable trial strategy when they decided not to offer the surveillance videotape.

492. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s strategy regarding the surveillance videotape was unreasonable.

493. The Court finds, without considering Samford’s Affidavit, that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective for failing to offer the surveillance videotape as evidence.

494. The Court concludes, without considering Samford’s Affidavit, that Applicant’s trial team was not ineffective for failing to offer the surveillance videotape as evidence.

495. The Court finds, without considering Samford’s Affidavit, that Applicant has failed to prove by a preponderance of the evidence that her trial team’s decision not to offer the surveillance videotape as evidence prejudiced her.

496. The Court concludes, without considering Samford’s Affidavit, that Applicant was not prejudiced by her trial team’s decision not to offer the surveillance videotape as evidence.

497. In the alternative, the Court finds, even considering Samford’s Affidavit, that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective for failing to offer the surveillance videotape as evidence.

498. The Court concludes, even considering Samford’s Affidavit, that Applicant’s trial team was not ineffective for failing to offer the surveillance videotape as evidence.

499. The Court finds, even considering Samford’s Affidavit, that Applicant has failed to prove by a preponderance of the evidence that her trial team’s decision not to offer the surveillance videotape as evidence prejudiced her.

500. The Court concludes, even considering Samford’s Affidavit, that Applicant was not prejudiced by her trial team’s decision not to offer the surveillance videotape as evidence.

No Cumulative Effect

501. Applicant claims in Ground for Relief IV that the cumulative effect of “deficiencies” in her trial team’s representation of her deprived her of effective assistance of counsel. (Application at 88-89).

502. The Court finds that Applicant offers no specific argument or evidence demonstrating that any of the alleged deficiencies in her trial team’s representation had a cumulative effect.

503. The Court finds that Applicant’s ineffective assistance claims attack isolated instances of her trial team’s representation, while the standard of review requires an examination of the totality of her counsels’ representation. See Rodriguez v. State, 899 S.W.2d at 665.

504. The Court finds that Applicant’s five-lawyer team presented a compelling opening statement, thoroughly cross-examined the State’s witnesses, adduced favorable testimony from the State’s witnesses, sought to exclude evidence, and objected to questions and testimony. Applicant’s team sought mistrials at various times, and they preserved many claims for appellate review. They presented favorable character evidence, favorable expert testimony, evidence of the “mysterious black car” in the neighborhood near the time of the murders, and evidence of other suspicious events in Rowlett on the night of the murders. The defense team presented compelling arguments attacking the State’s case and reinforcing the defense case. In the punishment phase, Applicant’s trial team called nine different witnesses to make a case that Applicant did not deserve a death sentence and to rebut the State’s punishment case. They also presented punishment arguments identifying weaknesses in the State’s punishment case, re-urging attacks on the State’s guilt case, and requesting that the jury give Applicant the benefit of any lingering doubt by returning a life sentence.

505. The Court notes that Applicant adduced no evidence of her trial team’s defense strategy.

506. The Court notes that non-errors cannot have a cumulative effect. See, e.g., Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).

507. The Court finds Applicant has failed to prove by a preponderance of the evidence that her trial team was deficient in any respect.

508. The Court finds Applicant has failed to prove by a preponderance of the evidence that any alleged deficiencies in her trial team’s representation are harmful in their cumulative effect.

509. The Court concludes Applicant suffered no cumulative harmful effect of the alleged deficiencies in her trial team’s representation.

510. The Court recommends that relief be denied as to Applicant’s Grounds for Relief III and IV.

FINDINGS AND CONCLUSIONS PERTINENT TO
GROUNDS FOR RELIEF V AND VIII

511. Applicant claims under Ground for Relief V that prosecutorial misconduct deprived her of a fair trial. Applicant claims under Ground for Relief V and VIII that she was harmed by the cumulative effect of prosecutorial misconduct. (Application at 89-100; 116-18).

512. Applicant claims in these Grounds that multiple actions of the prosecutor were misconduct and deprived her of a fair trial. While Applicant at time uses language that implicates her right to effective assistance of counsel, the overall tenor of her claims under Grounds for Relief V and VIII are direct challenges of the prosecutors actions, rather than claims based upon her trial counsels actions and inactions.

513. The Court concludes that the claims in Applicant’s Grounds for Relief V and VIII should be treated as claims of prosecutorial misconduct except as otherwise noted.

Procedural Bar to Review of Prosecutorial Misconduct—
No Objection, No Ruling, or Objection Different Than
Asserted in Habeas Proceeding

514. The Court notes that a claim must have been raised at trial to be considered in a habeas proceeding. See, e.g., Ex parte Dietzman, 851 S.W.2d 304, 305 (Tex. Crim. App. 1993).

515. The Court finds that Applicant claims that the prosecutor’s opening statement was improper, but that Applicant did not object. (Application at 89-90; RR.28: 31-32).

516. The Court finds that Applicant claims the prosecutor violated a motion in limine, but the record shows there was no objection. (Application at 89; RR.43: 4423-24; RR.42: 4348).

517. The Court finds that Applicant complains of the State’s use of character evidence, but Applicant did not object to any of the State’s character evidence, nor does Applicant identify in the record where she objected. (Application at 90-92; see also Application at 60-66 (ineffective assistance allegation regarding failure to object to character evidence).

518. The Court finds that Applicant complains that the prosecutors improperly vouched for the credibility of witnesses in closing arguments, but the record reflects that Applicant did not object to the arguments in question. (Application at 92-94; RR.46: 5216; 5222; 5238; 5244; 5245-46; 5324-25).

519. The Court finds that Applicant complains that the prosecutor injected his own opinion into a cross-examination question, but there is no objection in the record. (Application at 94; RR.42: 4383-84).

520. The Court finds that Applicant complains that that the prosecutor injected new facts in his argument, but her counsel did not obtain a ruling on her objection. (Application at 96-97; RR.46: 5329-30).

521. The Court concludes that review of each of the claims asserted above is barred because Applicant did not object and obtain a ruling. Cf. Ex parte Dietzman, 851 S.W.2d at 305 (considering writ claim where it was the subject of objection and an adverse ruling at trial).

522. The Court finds that Applicant’s claims regarding the improper mention of marijuana and the improper admission of testimony regarding Applicant’s sex toys is likewise barred because Applicant did not object on the grounds of prosecutorial misconduct. (RR.33: 1762-70; RR.36: 2520-22). Cf. Ex parte Dietzman, 851 S.W.2d at 305 (considering writ claim that was the subject a specific objection at trial stating the same grounds later urged in habeas corpus and that was the subject of a ruling).

523. The Court therefore concludes that review of all of Applicant’s prosecutorial misconduct claims is barred.

Procedural Bar – Claim Preserved at Trial but not Raised on Appeal

524. The Court notes that claims which could have been (but were not) raised on direct appeal cannot be litigated in a habeas proceeding. Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).

525. Applicant claims the prosecutor “orchestrated” the introduction of inadmissible testimony that marijuana was found in the Routier home during the investigation. (Application at 97-99).

526. The Court finds that the trial judge sustained an objection to the testimony, instructed the jury to disregard, and denied a defense motion for mistrial. (RR.33: 1762-70). Thus, Applicant’s trial counsel preserved a claim that the marijuana was improperly admitted. See Tex. R. App. P. 33.1.

527. The Court finds that Applicant raised no claim regarding the improper admission of marijuana in her brief on direct appeal. (State’s Writ Exhibit 20, Table of Contents of Applicant’s Brief on Direct Appeal).

528. The Court therefore concludes that review of this claim is barred. See Ex parte Banks, 769 S.W.2d at 540.

529. Applicant also claims that the prosecutor improperly offered irrelevant character evidence regarding Applicant’s sex toys. (Application at 99). The Application and the trial record reflect that Applicant’s objections were overruled by the trial judge. (Application at 99) (RR.36: 2520-22). Thus, Applicant’s trial counsel preserved a claim that the testimony regarding sex toys was irrelevant and was improper evidence of an extraneous offense or bad act. (RR.36: 2520-22). See Tex. R. App. P. 33.1.

530. The Court finds that Applicant raised no claim regarding the evidence of sex toys in her brief on direct appeal. (State’s Writ Exhibit 20, Table of Contents of Applicant’s Brief on Direct Appeal).

531. The Court therefore concludes that review of this claim is barred. See Ex parte Banks, 769 S.W.2d at 540.

Failed to Prove Prosecutorial Misconduct

532. The Court notes that a habeas applicant bears the burden to allege and prove by a preponderance of the evidence facts which, if true, entitle her to relief. See Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998).

533. A habeas applicant can obtain relief for prosecutorial misconduct only if the prosecutor somehow “significantly compromises the fairness of the proceedings.” State v. Terrazas, 962 S.W.2d 38, 45 (Tex. Crim. App. 1998)(Keller, J. dissenting)(citing Greer v. Miller, 483 U.S. 756, 765 (1987). The Court of Criminal Appeals has listed three factors considered in examining claims of prosecutorial misconduct: (1) whether the defendant objected to the conduct of the prosecutor (2) whether the prosecutor deliberately violated a court order, and (3) whether the prosecutorial misconduct was so blatant as to border on being contumacious. Stoker v. State, 788 S.W.2d 1, 14 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 (1990). The offer of admissible evidence, however, is not misconduct. Id. (rejecting misconduct claim regarding evidence that was admissible). Likewise, proper jury arguments are not misconduct. See Brandley v. State, 691 S.W.2d 699, 711 (Tex. Crim. App. 1985)(rejecting misconduct claim where argument was proper summary of and deduction from the evidence).

Character Evidence

534. Applicant claims the prosecutor engaged in misconduct by conducting a “character assassination.” (Application at 90-92).

535. The Court finds that Applicant’s trial team mounted a character-based defense, and therefore the prosecutors could present character evidence in rebuttal. See Tex. R. Evid. 404(a)(1)(A).

536. The Court finds that Applicant’s trial team put her character at issue in their opening statements, describing Applicant as a devoted mother, and “American Mother,” whose life “focused around the children.” (RR.28: 44-45; 52).

537. The Court finds that Applicant’s trial team adduced abundant favorable character testimony from eight different witnesses in the defense case-in-chief. (RR.40: 3801-02; 3875; 3889-90; RR.41: 2928-29; 3930-31; 3965-66; 3966; 3967; 4005; 4006; RR.42: 4225; 4226; 4265).

538. The Court finds that Applicant’s trial team reminded the jury of Applicant’s favorable character testimony during closing argument, and noted that the State’s witnesses also provided favorable character testimony. (RR.46: 5260).

539. The Court finds that Applicant’s trial team noted weaknesses in the State’s character evidence and turned the State’s character arguments to her advantage. (RR.46: 5292-93; 5273; 5280-81).

540. The Court finds that the decision whether to put a defendant’s character into issue is one of trial strategy. See Smith v. Moore, 137 F.3d 808, 817 (4th Cir. 1998).

541. The Court finds that the State could adduce character evidence to rebut the defense character evidence. See Tex. R. Evid. 404(a)(1)(A).

542. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutors committed misconduct by adducing character evidence at trial.

543. The Court concludes that the prosecutors did not commit misconduct by adducing character evidence at trial to rebut Applicant’s character defense.

544. The Court finds that Applicant challenges multiple jury arguments by the prosecutors, claiming that the prosecutors impermissibly injected their own opinion of the credibility of the witnesses. (Application at 92-94).

545. The Court notes that proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing counsel; and (4) a plea for law enforcement. Smith v. State, 898 S.W.2d 838, 845 (Tex. Crim. App. 1995); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973).

546. The Court notes that in Felder v. State, 848 S.W.2d 85, 95 (Tex. Crim. App. 1992), the Court of Criminal Appeals held that prosecutors may argue their opinions concerning issues as long as the opinions are based on evidence in the record and do not constitute unsworn testimony. See also McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985).

547. Applicant first challenges the following argument:

The doctors come in, they take her upstairs to operate. And you heard from those doctors, Dr. Santos and Dr. Dillawn.

Now those guys don’t regularly come down and testify. In fact, I think that is the first time they have testified. And they are not paid for their testimony. They owe no allegiance to the State, they owe no allegiance to the Rowlett Police Department. They are just doctors, surgeons, emergency room surgeons. And they have no reason to lie or be biased in this case. (RR.46: 5216)(emphasis added to indicate the portion of argument attacked by Applicant).

548. The Court finds that, considering the entirety of the prosecutor’s argument, that the prosecutor was noting the absence of evidence demonstrating that the doctors had a financial interest in the case, were biased, or had motive to lie and a reasonable deduction from the evidence. (RR.46: 5216).

549. The Court finds and concludes that the prosecutor’s argument regarding the doctors was proper. See, e.g., Penry v. State, 903 S.W.2d 715, 756-57 (Tex. Crim. App. 1995)(upholding prosecutor’s argument “I don’t believe I have ever seen anybody that I thought was more honest than she is” as a reasonable deduction from the evidence at trial).

550. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the argument regarding the doctors was prosecutorial misconduct.

551. The Court concludes that the argument regarding the doctors was not prosecutorial misconduct.

552. Applicant challenges the prosecutor’s argument: “These nurses have no reason to lie.” (RR.46: 5222) (Application at 93).

553. The Court finds that the prosecutor’s argument merely points out that nothing in the record demonstrates that the nurses had bias or motive against Applicant.

554. The Court finds and concludes that the prosecutor’s argument regarding the nurses was proper. See Penry, 903 S.W.2d at 756-57)(upholding prosecutor’s argument “I don’t believe I have ever seen anybody that I thought was more honest than she is” as a reasonable deduction from the evidence at trial).

555. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the argument regarding the nurses was prosecutorial misconduct.

556. The Court concludes that the argument regarding the nurses was not prosecutorial misconduct.

557. Applicant challenges the prosecutor’s argument that Barbara Jovell “told you the truth.” (RR.46: 5238)(Application at 93).

558. The Court finds that the prosecutor also noted in his argument that Jovell was Applicant’s maid of honor, had known Applicant almost 10 years, and was a close friend of Applicant. (RR.46: 5236). The prosecutor noted the absence of evidence of a motive on the part of Jovell. (RR.46: 5236). The prosecutor also noted that Jovell’s testimony regarding a suicide attempt was corroborated by Applicant’s own diary. (RR.46: 5238).

559. The Court finds and concludes that the prosecutor’s argument regarding Jovell was a proper summary of the evidence, a reasonable deduction from the evidence, and a permissible opinion. See McKay, 708 S.W.2d at 36-37; see also Penry, 903 S.W.2d at 756-57.

560. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument regarding Jovell was prosecutorial misconduct.

561. The Court concludes that the prosecutor’s argument regarding Jovell was not prosecutorial misconduct.

562. Applicant challenges the prosecutor’s argument comparing the nurse’s testimony regarding Applicant’s statements to the testimony of Applicant’s family:

You see, her relatives came in and said, no, [Applicant], at the hospital, just said she woke up, and the man was walking away.

You see, that is inconsistent, because at the same time she is supposedly telling them that, she is telling the nurses, that the man was standing over me. And they have no reason to lie. You see, they might be more believable if they said, “You know, we suggested that some man was standing over her. We told her that. She is just trying to believe that.” (RR.46: 5244)(emphasis added to portion challenged by Applicant).

563. The Court finds that the prosecutor previously pointed out contradictions and weaknesses in Applicant’s amnesia defense. (RR.46: 5244).

564. The Court finds that the prosecutor’s argument pointed out conflicting testimony, the differing motives of the witnesses giving the testimony, and the absence of evidence of motive or bias on the part of the nurses.

565. The Court finds and concludes that the prosecutor’s argument was proper summary of the evidence, a reasonable deduction from the evidence and a proper opinion based upon facts in evidence. See Felder, 848 S.W.2d at 95; McKay, 707 S.W.2d at 36-37.

566. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument contrasting the nurse’s testimony with Applicant’s family’s testimony was prosecutorial misconduct.

567. The Court concludes that the prosecutor’s argument contrasting the nurse’s testimony with Applicant’s family’s testimony was not prosecutorial misconduct.

568. Applicant also challenges the prosecutor’s argument noting the difference in the way Applicant cried on direct examination as opposed to the way that she cried during cross-examination. (Application at 94).

569. The prosecutor made the following argument regarding Applicant’s crying:

She had to have an explanation for everything, and she tried to cry, she tried to cry on direct, and just like she tried to cry at the grave site, but those tears weren’t streaming down her face. Those tears didn’t start up until she got caught in a lie. (RR.46: 5246).

570. The Court notes that a prosecutor can comment on a defendant’s testimonial demeanor at trial, and that testimonial demeanor is considered to be properly in evidence. See Good v. State, 723 S.W.2d 734, 736-37 (Tex. Crim. App. 1986). A prosecutor may argue reasonable deductions from a defendant’s testimonial demeanor. Id.

571. The Court notes that other evidence showed that Applicant did not cry at the murdered boys’ grave during the “silly string” party. (RR.36: 2576; 2654).

572. The Court finds and concludes that the prosecutor’s argument regarding the way Applicant cried while on the witness stand and at the grave was a proper summary of the evidence and a reasonable deduction from the evidence. See Vaughn v. State, 607 S.W.2d 914, 922 (Tex. Crim. App. 1980)(upholding prosecutor’s argument that referenced witness crying on the stand).

573. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument regarding Applicant’s crying was misconduct.

574. The Court concludes that the prosecutor’s argument regarding Applicant’s crying was not misconduct.

575. Applicant challenges the prosecutor’s statements in support of the Rowlett Police Department as improper bolstering. (Application at 93). The prosecutor argued that the Rowlett Police Department had nothing to be ashamed of and that he was proud that they, the Rowlett Police Department, were a part of the case. (RR.46: 5324 – 5326).

576. The Court finds that Applicant’s trial team attacked the integrity of the investigation and the agency conducting it from the outset of their jury arguments. (RR.46: 5252).

577. The Court finds that Applicant’s lawyers Curtis Glover and Richard Mosty both highlighted the notion that Applicant was within the “cross hairs in only 20 minutes.” (RR.46: 5252; 5261-62).

578. The Court finds that Applicant’s counsel Doug Mulder pointed out the State’s failure to call the lead detective, and highlighted the fact that the lead detective invoked the Fifth Amendment when accused of committing a felony. (RR.46: 5288).

579. The Court finds that Mulder argued that the Rowlett Police did not investigate the “mysterious black car.” (RR.46: 5291).

580. The Court finds that Mulder attacked Detective Patterson’s handling of the investigation and the police work of the forensic team. (RR.46: 5297-98; 5300; 5308).

581. The Court finds that the prosecutor’s argument regarding the Rowlett Police does not state that the police officers were truthful or telling the truth.

582. The Court finds and concludes that the prosecutor’s argument regarding the Rowlett Police was proper as a response to the arguments of opposing counsel and a plea for law enforcement.

583. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument regarding the Rowlett Police constituted prosecutorial misconduct.

584. The Court concludes that the prosecutor’s argument regarding the Rowlett Police was not prosecutorial misconduct.

585. Applicant complains that the prosecutor also gave an improper opinion regarding her character during argument. (Application at 94).

586. The Court finds that the prosecutor argued:

It’s been a textbook, almost on what does a guilty woman do when she comes to trial in Kerr County? The first thing she does is, she tries to deceive you. Mr. Mulder used that word, misleading, misleading, misleading. If there is anybody in this courtroom who has tried to mislead you throughout these past four weeks, it’s this woman over here. Just like her husband, trying to materially alter her appearance for you. She doesn’t want you to know who she really is. That is why she sits over there like she is today with this plaintive little look on her face, “Poor me, I am the victim,” kind of look. Hoping that just one of you, because it only takes one of you, one of you will buy into that game. (RR.46: 5325-26).

587. The Court finds that Applicant has offered no evidence and cited no authority that this argument is improper. (Application at 94).

588. The Court notes that a prosecutor can comment on a defendant’s testimonial demeanor at trial, and that testimonial demeanor is considered to be properly in evidence. See Good v. State, 723 S.W.2d 734, 736-37 (Tex. Crim. App. 1986). A prosecutor may argue reasonable deductions from a defendant’s testimonial demeanor. Id.

589. The Court finds that the record reflects that Applicant made multiple, inconsistent statements about the offense to a variety of different persons, including nurses, friends, her husband, and the jury during her testimony. (RR.3: 895-97; 923; 982-83; 1029-30; RR.32: 1206-07; RR.36: 2564-65; 2658; RR.43: 4462-63; 4465-66; 4468; RR.44: 5000-01; RR.44: 5002-14; 5003; 5004; 5005; 5007; 5012; 5013; 5014).

590. The Court finds and concludes that the prosecutor’s argument was a proper summary of the evidence of the many inconsistent versions of events told by Applicant.

591. The Court finds and concludes the prosecutor’s argument was also a proper plea for law enforcement in that it sought to prevent the jury from sympathizing with Applicant.

592. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument regarding Applicant constituted prosecutorial misconduct.

593. The Court concludes that the prosecutor’s argument regarding Applicant was not prosecutorial misconduct.

594. Applicant complains that the prosecutor made an improper inflammatory argument by stating that he was “proud most of all in this case to be the voice of Damon and Devon Routier.” (Application at 95).

595. A prosecutor may not argue to the jury that he represents the victim or the victim’s family. See Rougeau v. State, 738 S.W.2d 651, 656-58 (Tex. Crim. App. 1987).

596. A prosecutor may not ask jurors to “put themselves in the shoes of the victim.” See Brandley v. State, 691 S.W.2d 699, 712-13 (Tex. Crim. App. 1985).

597. The Court finds and concludes that the prosecutor’s argument did not state that he represented the victims or try to place the jurors in the “shoes of the victim,” but was a proper summary of the evidence and plea for law enforcement. See Zinger v. State, 899 S.W.2d 423, 434-35 (Tex. App.–Austin 1995)(upholding prosecutor’s argument that he spoke for the victim), rev’d on other grounds, 932 S.W.2d 11 (Tex. Crim. App. 1996).

598. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s argument regarding Damon and Devon constituted prosecutorial misconduct.

599. The Court concludes that the prosecutor’s argument regarding Damon and Devon was not prosecutorial misconduct.

600. Applicant claims that the prosecutor improperly injected new facts into the case during argument. (Application at 96).

601. Applicant’s counsel Doug Mulder argued that the State had failed to investigate a lead on a person found in Rowlett the afternoon after the murders that matched one of the descriptions given by Applicant. (RR.46: 5289). Mulder argued that the State had not cleared this man’s fingerprints against the unidentified fingerprint on the garage window. (RR.46: 5289).

602. The Court finds that the prosecutor responded to this argument by arguing that Mulder’s argument was not true and that the State did check the fingerprints. (RR. 46: 5328-5330).

603. The Court finds that Applicant’s trial counsel argued outside the record when he stated that the police had not compared prints of the suspect against the prints from the window. (RR.46: 5289).

604. The Court finds and concludes that the prosecutor’s argument was proper under the invited argument rule. See, e.g., Bush v. State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989)(defendant invited argument outside record regarding unavailable witness by arguing that the State could and should have called the witness).

605. The Court finds that the prosecutor’s argument did not pass beyond the scope of the invitation in Applicant’s argument.

606. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor’s invited argument constituted prosecutorial misconduct.

607. The Court concludes that the prosecutor’s invited argument was not prosecutorial misconduct.

Admission of Marijuana Evidence

608. Applicant alleges that the prosecutor “orchestrated” the improper mention of marijuana found during the search of the Routiers’ home. (Application at 97-99).

609. At trial Officer Mayne testified that “some marijuana” was retrieved from the Routier house in response to the prosecutor’s question on what other evidence was retrieved. (RR. 33: 1761).

610. The prosecutor explained at a hearing outside the presence of the jury that he expected the answer to be that the officer did not retrieve anything else. (RR. 33: 1763).

611. The Court finds that the large volume of evidence involved in the trial provided ample opportunity for the prosecutor and Officer Mayne to become confused as to what answer the prosecutor was seeking when he asked the question that led to the disclosure of the marijuana found at the Routier home.

612. The Court finds that Applicant offered no evidence at trial to refute the prosecutor’s explanation that the marijuana evidence was accidentally revealed to the jury.

613. The Court finds that the trial judge rejected the arguments of Applicant’s trial counsel that the marijuana evidence was intentionally revealed to the jury. (RR.33: 1763-70).

614. The Court finds that Applicant has adduced no evidence in addition to the trial record to support her claim that the prosecutor intentionally elicited the marijuana evidence. (Application at 97-99).

615. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor engaged in prosecutorial misconduct with regard to the marijuana evidence.

616. The Court concludes that the prosecutor did not engage in misconduct with regard to the marijuana evidence.

617. The Court finds that the trial judge instructed the jury to disregard the evidence of marijuana. (RR.31: 1770).

618. The Court notes that an instruction to disregard is generally sufficient to cure any harm from an improper question and answer, even if it adduces evidence of an extraneous offense. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

619. The Court finds that Applicant has adduced no evidence that an instruction to disregard would not suffice to cure any harm due to the inadvertent revelation of the marijuana evidence.

620. The Court finds and concludes that any error would be found to be harmless had Applicant raised this claim in her direct appeal. See Ethridge v. State, 903 S.W.2d 1, 11-12 (Tex. Crim. App. 1994).

621. The Court finds that Applicant has failed to prove by a preponderance of the evidence that she is entitled to relief due to the inadvertent revelation of the marijuana evidence.

622. Applicant claims that the prosecutor committed misconduct by introducing inadmissible character evidence when he adduced testimony from Barbara Jovell that Applicant was worried that the police would find her sex toys while searching her home. (Application at 99).

623. Jovell testified that Applicant asked everyone but Jovell to leave her hospital room during the second day after the murders. (RR.36: 2565). After everyone left the room, Applicant looked at Jovell for a long time, then told her that “she had sexual toys in the house and that the police going [sic] to see them.” (RR.36: 2566). Jovell told her not to worry about those things, that the police would worry about the boys, and that “a lot of people have toys.” (RR.36: 2566). Applicant’s counsel earlier objected to the testimony in a hearing outside the presence of the jury, and the trial court overruled the objection. (RR.36: 2520-22).

624. The Court finds and concludes that the mere possession of an undescribed sex toy is not evidence of a “generalized personal trait or propensity to behave in a certain way.” See, Cathy Cochran, Texas Rules of Evidence Handbook 244-45 (4th Ed. 2001).

625. The Court notes Jovell did not testify that Applicant habitually engaged in unnatural or abnormal sex acts.

626. The Court notes that Jovell testified that “a lot of people have toys.” (RR.36: 2566).

627. The Court finds that, even if the sex toy evidence was evidence of Applicant’s character, Applicant opened the door to character evidence by presenting evidence of her good character. Tex. R. Evid. 404(a)(1)(A).

628. The Court finds that the evidence was relevant to show Applicant’s demeanor in the hospital after the offenses.

629. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutor committed misconduct by eliciting testimony regarding Applicant’s concern her sex toys would be discovered by the police.

630. The Court concludes that the prosecutor eliciting testimony regarding Applicant’s concern her sex toys would be discovered by the police was not prosecutorial misconduct.

631. The Court finds that Applicant claims in Grounds for Relief V and VIII that all of her misconduct claims, considered together, entitled her to relief even if the individual claims are insufficient to entitle her to relief. (Application at 99-100; 116-18).

632. Applicant’s “cumulative effect” claim presupposes that the record substantiates her allegations.

633. Non-errors cannot have a cumulatively harmful effect. See, e.g., Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).

634. Applicant’s trial team did not object in almost every instance identified by Applicant as prosecutorial misconduct, demonstrating that the challenged instances were not misconduct. See Stoker, 788 S.W.2d at 14.

635. The offer of admissible evidence and proper jury arguments are not prosecutorial misconduct. See id.; Brandley, 691 S.W.2d at 711.

636. The Court finds Applicant has failed to prove by a preponderance of the evidence that any alleged prosecutorial misconduct was harmful in its cumulative effect.

637. The Court concludes Applicant suffered no cumulative harmful effect of due to alleged misconduct by the prosecutors.

638. Applicant appears to couch one of her prosecutorial misconduct claim as a claim of ineffective assistance of counsel. (Application at 95-96).

639. The Court notes that to prove ineffective assistance, Applicant must: (1) demonstrate that her counsel’s performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) show that this deficient performance prejudiced the defense to such a degree that Applicant was deprived of a fair trial. See Strickland, 466 U.S. at 687. Because counsel’s competence is presumed, Applicant must rebut this presumption by proving that her attorney’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). The record must support an ineffectiveness claim. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record contains no evidence to show the reasons for trial counsel’s allegedly ineffective acts or omissions, the reviewing court cannot conclude that counsel performed deficiently. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Jackson, 877 S.W.2d at 771. A silent record does not require the court to speculate on the reasons behind counsel’s decisions. See Jackson, 877 S.W.2d at 771.

640. A lawyer is not ineffective for failing to object to evidence that is in fact admissible or arguments that are proper. See Austin v. State, 934 S.W.2d 672, 675 (Tex. Crim. App. 1996); Kizzee v. State, 788 S.W.2d 413, 415 (Tex. App.–Houston [1st Dist.] 1990, pet. ref'd).

641. The Court finds that Applicant has adduced no evidence demonstrating that her trial team was not acting in accordance with reasonable trial strategy.

642. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team’s strategy was unreasonable.

643. The Court finds that Applicant has failed to prove by a preponderance of the evidence that her trial team was ineffective in responding to alleged prosecutorial misconduct.

644. The Court concludes that Applicant’s trial team was not ineffective in responding to alleged prosecutorial misconduct.

645. The Court finds that Applicant has failed to prove by a preponderance of the evidence that she was prejudiced by her trial team’s response to alleged prosecutorial misconduct.

646. The Court concludes that Applicant was not prejudiced by her trial team’s response to alleged prosecutorial misconduct.

647. The Court recommends that relief be denied as to Applicant’s Grounds for Relief V and VIII.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF VI

In her sixth ground for relief, Applicant asserts that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose impeachment and exculpatory evidence regarding two of its testifying experts and one of its non-testifying experts.

Standard of Review

648. The Court recognizes that the State has an affirmative duty to disclose all material, exculpatory evidence to the defense under Brady, 373 U.S. at 87, and that this duty extends to evidence that may be used to impeach a witness’s credibility. United States v. Bagley, 473 U.S. 667, 683-84 (1985).

649. The Court further recognizes that, in a writ of habeas corpus, an applicant has the burden of proving the facts which would entitle her to relief. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998); see Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997) (holding that in a writ of habeas corpus, the burden of proof is on the applicant to prove his factual allegations by a preponderance of the evidence).

650. In order for Applicant to successfully show that a Brady violation occurred in this case, she must demonstrate that: 1) the prosecution suppressed evidence; 2) the evidence was favorable to the applicant; and 3) the evidence was material. Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997) (holding that the burden of showing materiality rests on the defendant); see Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996).

Merits
Special Agent Alan Brantley

651. The Court finds that Alan Brantley, a Special Agent and psychologist assigned to the FBI National Center for the Analysis of Violent Crimes, reviewed the investigative reports, crime scene photographs, and witness statements for the State’s case (RR.40: 3655-61); testified to his opinion that the boys were killed by someone they knew well and that the crime scene was staged (RR.40: 3661); and relied on many factors in forming his opinion, including that there were no similar crimes in the area, that this was a low crime area, and that most offenders who enter a residence to commit a homicide take a weapon with them. (RR40:3662, 3779).

Applicant Fails to Allege & Prove Sufficient Facts

Applicant asserts that the State violated Brady and deprived her of her due process rights by failing to disclose evidence of similar crimes that would impeach the testimony of Agent Brantley. (Application at 103, 108).

652. In support of her argument, Applicant tendered five police reports from the Dallas Police Department. (Applicant’s Writ Exhibits A – E). Applicant argues that the police reports constitute favorable impeachment evidence that directly contradicts Agent Brantley’s crime-scene analysis testimony because: 1) these crimes are similar to this offense and occurred in the year immediately preceding it; 2) in one of the offenses, the intruder held a small knife from the victim’s kitchen against the victim’s throat prior to the sexual assault; 3) in another case, the assailant threatened a child with a kitchen fork; and 4) in four of the cases, the assailant “used a single tube sock—similar to the sock found in the alley behind the Routier residence—to gag his victims and to conceal fingerprints.” (Application at 103).

653. The Court finds that each of the five police reports involved: 1) a sexual assault, 2) with no additional serious bodily injury, 3) committed inside an apartment or at an apartment complex, 4) in the city of Dallas, 5) by an African-American male, Sammie Luckas Cook, Jr., who was apprehended through DNA testing, and 6) a demand for credit cards and cash from his victims. In the one offense involving a child witness, Cook did not sexually assault or physically harm the child.

654. The Court finds that the Dallas sexual assaults as set out in the tendered police reports are significantly dissimilar to the instant offense for the following reasons:

a. Unlike the victims detailed in the Dallas Police Department’s reports, Applicant, her husband, and her children lived in a two-story, colonial-style house in an upscale, suburban neighborhood in the city of Rowlett, twelve miles from the closest sexual assault; two of the three children in the house were stabbed to death; none of the victims were sexually assaulted; the intruder did not speak to or threaten Applicant; and he never demanded or took any money or property.

b. Furthermore, although a bloodstained sock was found in the alley three houses down from the Routier crime scene (RR32:1260, 1265, 1271, 1387), Applicant never reported that the intruder gagged any of the victims with a sock (as did the intruder in two of the Dallas sexual assaults). In fact, Applicant specifically testified that she did not find “any tape, or any gauze or anything stuffed in [her] mouth.” (RR44:4934). Applicant also did not ever report that the intruder wore socks on his hands (as did the intruder in one of the Dallas sexual assaults). (RR44:4789-5031; State’s Trial Exhibit 76A).

c. The intruder in the Dallas sexual assaults was African American, and, although Applicant told Officer David Waddell at one point that she did not know if her assailant was black or white (RR29:319), she repeatedly told Lieutenant Matt Walling her assailant was white. (RR29:514-15, 522, 530). Similarly, Applicant told her friend, Barbara Jovell, that the assailant was white. (RR36:2569). Applicant testified at trial that she “wasn’t sure if [the intruder] was white or black because it was dark, but that I assumed that he was white because of his hair.” (RR44:4883).

d. The Dallas sexual assaults occurred at apartment complexes in an urban area along a narrow corridor on the east side of a major highway, Highway 75 – Central Expressway, in an area approximately one mile wide and five miles long. Two of the sexual assaults occurred at the same complex. (State’s Writ Exhibit 10). The proximity of Central Expressway (and Highway 635 in two cases) would have provided easy access to a major highway to lessen the chances of detection. The Rowlett murders occurred approximately fifteen miles from Central Expressway, in a suburban neighborhood cul-de-sac. (RR40:3666, 3705; State’s Writ Exhibit 10). As one of Applicant’s neighbors described Rowlett in relation to Dallas:

Rowlett, Texas, is located to the [north]east of Dallas, on Lake Ray Hubbard, the city reservoir. It’s about approximately 35 miles from downtown Dallas. It’s a suburb of Dallas, just east of Garland.

(RR28:179, 184). Regarding their particular neighborhood, the neighbor explained: “It’s a fairly upscale neighborhood, as it’s been described before. The neighborhood is mostly family oriented, lots of small children, and kind of a bedroom community.” (RR28:186).

e. Furthermore, in each of the Dallas sexual assaults, the assailant demanded and/or took cash, credit cards, or property from his victims. In contrast, Brantley testified regarding the Routier case:

Q. [Prosecutor]: [R]obbery, in this case, were you aware of, well, I guess, it was various items left around in the residence; is that right?

A. [Brantley]: That’s correct.

Q. Okay. Do you remember what types of items we’re talking about?

A. Well, primarily, the jewelry, the large amount of jewelry that was left there in plain view, and certainly, this also seemed to be in this path of entry and escape, and so, I mean, it was right there for the taking, and all someone had to do was just reach over and grab it.

Also, you looked at the purses that were in the area, and whether they were disturbed, or whether anyone was attempting to steal money, cash or credit cards. And there is no indication that anything like that has occurred.

As a matter of fact, nothing was disturbed. Nothing of value in that home seemed to be of interest whatsoever to the offender in this case.

(RR40:3694-95).

655. The Court finds that Applicant fails to prove that the Dallas sexual assaults “resemble” or occurred “in the area” of the instant offense.

656. The Court finds that the Dallas sexual assaults in the police reports are not sufficiently similar to the instant offense to be relevant or material. See Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995) (to impeach a witness, it must be established that the evidence is relevant and material to the case).

657. Thus, the Court finds and concludes that Applicant has failed to prove that the facts she alleges are true, and therefore, the Court finds and concludes that Applicant has failed to produce evidence that entitles her to relief. See Ex parte Chappell, 959 S.W.2d at 628.

Brady v. Maryland Claim

Applicant argues that, had the State provided the defense with copies of the challenged police reports, the defense would have been able to impeach Brantley with evidence that his investigation into similar crimes was inadequate and that his conclusions were based on inaccurate assumptions. (Application at 103).

First Prong of Brady –Knowledge & Disclosure

658. The Court recognizes that a prosecutor has a duty to disclose favorable, material evidence he knowingly possesses. Brady, 373 U.S. at 87. The prosecutor also has an affirmative duty to seek out any favorable, material evidence possessed by others who are “acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).

Knowledge

Applicant argues that “the Dallas Police Department works in conjunction with, and has daily interaction with, the Dallas County Prosecutor’s Office which prosecuted Applicant’s case.” (Reply at 31). Additionally, Applicant argues that “the State is held to a standard of disclosure based on what all State officers knew at the time.” (Application at 101) (emphasis added).

659. The Court finds, the record reveals, and Applicant acknowledges that the instant offense occurred in the city of Rowlett and that, although Rowlett is in Dallas County, the Rowlett Police Department was the primary investigative agency in this case. (Reply at 30).

660. Initially, the Court finds that Applicant fails to assert or prove that the Rowlett Police Department or the Dallas County assistant district attorneys assigned to this case had actual knowledge of the Dallas Police Department offense reports at issue.

661. The Court acknowledges (based on the plain language in Kyles v. Whitley) that the knowledge of all police officers in the State of Texas or even Dallas County should not be imputed to the prosecutors in this case; instead, the only knowledge that is imputed to the prosecutors is that of “others acting on the government’s behalf in the case.” Kyles v. Whitley, 514 U.S at 437 (emphasis added); see United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998) (“[T]he imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor’s office on the case in question would inappropriately require us to adopt a monolithic view of government that would condemn the prosecution of criminal cases to a state of paralysis”).

662. This Court recognizes that “acting on the government’s behalf” has been construed by courts to mean the “prosecution team,” which has been held to include both investigative and prosecutorial personnel working on a particular case. See Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002); Page v. State, 7 S.W.3d 202, 208 (Tex. App.—Fort Worth 1999, pet. ref’d) (citing Ex parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989)).

663. The Court concludes that the concept of “team” does not indicate that all State-wide investigative and prosecutorial personnel are included, rather only those that are investigating the offense. See United States v. Morris, 80 F.3d 1151, 1169 (7th Cir. 1996) (holding that prosecutor’s office does not have to learn of information possessed by other government agencies that have no involvement in the investigation or prosecution at issue).

664. The Court recognizes Fifth Circuit precedent holding that there is no per se rule to determine whether information possessed by one government entity should be imputed to another, but rather, it is “a case-by-case analysis of the extent of interaction and cooperation between the two governments.” United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979); see Moon v. Head, 285 F.3d at 1309 (discussing and relying on Antone).

665. The Court finds that Applicant fails to allege or prove that the Dallas Police Department was “acting on the government’s behalf” or was part of the “prosecution team” in this case.

666. The Court finds that Applicant fails to proffer any evidence that the Dallas Police Department played an active role in this case or that the investigation in this case was a joint effort by the two police departments. Applicant tenders no evidence that any officers from the Dallas Police Department collected any evidence, investigated any leads, generated any reports, made any significant decisions, or testified.

667. This Court finds and concludes that the Dallas Police Department was not “acting on the government’s behalf” or on the “prosecution team” in this case.

668. The Court finds that Applicant fails to prove that any knowledge on the part of the Dallas Police Department about the police reports should be imputed to the Dallas County assistant district attorneys in this case. See, e.g., Moon, 285 F.3d at 1309 (holding that Tennessee investigator who testified on behalf of prosecution in punishment phase of capital murder trial in Georgia did not become part of Georgia prosecutor’s team, such that Brady material in investigator’s hands had to be disclosed to defendant, where there was no evidence that Tennessee law enforcement officers and Georgia prosecutors had engaged in joint investigation of the homicide, and agencies of two states did not share resources or labor).

669. The Court concludes that knowledge by the Dallas Police Department of the sexual assaults in question should not be imputed to the prosecutors in this case. See Hafdahl v. State, 805 S.W.2d 396, 399 n. 3 (Tex. Crim. App. 1990); see also United States v. Locascio, 6 F.3d 924, 949-50 (2d Cir. 1993) (refusing to infer knowledge on the part of prosecutors simply because other government agents not on the prosecution team knew something).

Disclosure

Applicant further asserts that by eliciting Agent Brantley’s opinion testimony, “the State undertook an obligation to search for and disclose evidence that may contradict these assumptions.” (Application at 103-104).

670. Brady does not place any burden on the prosecution to conduct a defendant’s investigation or assist in the presentation of the defendant’s case. East v. Scott, 55 F.3d 996, 1004 (5th Cir. 1995); Palmer v. State, 902 S.W.2d 561, 563 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (“The State has no duty to seek out exculpatory information independently on defendant’s behalf”).

671. The Court finds that Applicant has failed to allege or demonstrate any extraordinary circumstance associated with this case that would mandate that the State was obligated to seek out evidence that might challenge the underlying facts or data supporting Brantley’s expert opinion.

672. The Court concludes that the State was not obligated to seek out evidence that might challenge the underlying facts or data supporting Brantley’s expert opinion.

673. The Court finds that the prosecutors in this case should not have been expected to seek out the information Applicant now tenders as evidence because it is not helpful to Applicant’s case in any meaningful way.

674. A prosecutor is not required to disclose evidence that he is unaware may benefit the defendant’s theory of the case. See generally Ragan v. State, 887 S.W.2d 471, 473 (Tex. App.—San Antonio 1994, pet. ref’d) (issue of whether victim had been sexually assaulted was not contested, so that possible laboratory testing errors did not constitute exculpatory evidence); Brewer v. Marshall, 119 F.3d 993, 1005-06 (1st Cir. 1997) (no Brady violation in failure to disclose identity of rape victim’s boyfriend where “there was no evidence the government knew that the boyfriend’s identity was potentially exculpatory prior to trial”).

675. The Court finds that the tendered police reports do not “contradict Brantley’s assumptions.” (Application at 103-04).

676. The Court finds that, even if the prosecution team in this case had known about these five sexual assaults, they would not have been expected to find them significant enough to disclose them to the defense.

677. Additionally, the Court finds that the State does not have a duty to produce evidence that is in the public domain or otherwise available to the defendant. See United States v. Albanese, 195 F.3d 389, 393 (8th Cir. 1999); Jackson v. State, 552 S.W.2d 798, 803-04 (Tex. Crim. App. 1997) (no duty to disclose where defense counsel had equal access to evidence); United States v. LeRoy, 687 F.2d 610, 619 (2nd Cir. 1982) (emphasis added) (“The rationale underlying Brady is not to supply a defendant with all the evidence in the government’s possession which might conceivably assist in the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the government”).

678. The Court finds that Applicant fails to assert or prove that her trial counsel could not have obtained these reports and used them on cross-examination. The fact that the defense acquired the reports to include in her writ response proves that Applicant had equal access to the information and did not need the State to provide it to them. Applicant’s trial counsel could have obtained the front page of the offense reports under the Texas Public Information Act. See TEX. GOV’T CODE ANN. § 552.108 (Vernon Supp. 2003); Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 186-87 (Tex. Civ. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).

679. For all of the above reasons, the Court finds that Applicant has failed to prove by a preponderance of the evidence that the prosecutors had actual or imputed knowledge about the challenged police reports or that the prosecutors improperly failed to disclose them.

680. Therefore, the Court finds that Applicant has failed to prove that the State violated the first prong of Brady v. Maryland.

681. Likewise, the Court concludes that the State did not violate the first prong of Brady.
Second Prong of Brady–Whether the Evidence is Favorable to Applicant

682. Whether unrevealed evidence would have been “favorable” to the accused must be determined by ascertaining whether the evidence “if disclosed and used effectively . . . may make the difference between conviction and acquittal.” Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex. Crim. App. 1993) (quoting Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)).

683. The Court notes that inadmissible impeachment evidence does not constitute favorable evidence. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993); Callaway v. State, 818 S.W.2d 816, 829-30 (Tex. App.—Amarillo 1991, pet. ref’d); see also Dowthitt v. Johnson, 230 F.3d 733, 755-56 (5th Cir. 2000). To be admissible, impeachment evidence must be relevant and material to the case. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995).

684. The Court finds that, because the locations of the sexual assaults outlined in the police reports are not in close proximity to the Routier home, and they cannot be characterized as similar or related events in the area, Applicant has failed to prove that these reports were relevant or material. See Curtis v. State, 89 S.W.3d 163 (Tex. App.—Fort Worth 2002, no pet.).

685. Therefore, the Court finds that Applicant has failed to prove by a preponderance of the evidence that the police reports are favorable or constitute impeachment evidence.

686. Thus, the Court finds that Applicant has failed to prove that the State violated the second prong of Brady v. Maryland.

687. Likewise, the Court concludes that the State did not violate the second prong of Brady v. Maryland.

Third Prong of Brady – Materiality

Applicant argues that the police reports are material because they prove that Brantley was misinformed that Applicant’s suburban Rowlett neighborhood was a very low crime rate area and an area in which no other homicides like this one had ever occurred.

688. The Court recognizes that evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Bagley, 473 U.S. at 682. A reasonable probability of a different result is shown when the suppression of evidence undermines confidence in the verdict. Id.

689. The Court finds that the police reports at issue serve to bolster and confirm Brantley’s testimony rather than prove that Brantley was misinformed. For instance, Brantley testified to the following:

Q. [Prosecutor]: [W]ill offenders go in, and you have studied, I guess, guys that go in, rapists –

A. [Brantley]: Yes, sir.

Q. – go in to the homes to sexually assault women?

A. Yes.

Q. Do they do that when children are present?

A. Yes, that is a common practice, as a matter of fact. For a rapist to go in, either they are going to primarily select a female alone in the residence, or a female with young children. And the reason they select females with young children, is that they can use the threat of violence directed against these children, as a way to control the female victim.

For instance, “If you just do what I tell you and you give me what I want, I’ll leave your children alone. But if you don’t, I’ll hurt the children.”

So that is a very effective control maneuver that they will implement.

Q. Looking at it from a standpoint of perhaps maybe this was a party coming in to sexually assault Mrs. Routier, the killing of the children, was that a contradiction from what you are used to seeing?

A. It is a major contradiction in that behavior and that belief on their part, because again, they want those children alive. It’s the threat of the harm that they use to control the victim. If they have already stabbed and hurt the children and killed the children, they can forget about any cooperation on the part of the female victim, than – that victim is much more inclined to fight, and to fight for their life.

(RR40:3695-96).

690. The Court finds that the “typical” sexual assault described by Brantley describes the sexual assaults set out in the Dallas police reports tendered by Applicant. (Applicant’s Writ Exhibit A - E). In one of the sexual assault cases, the intruder entered an apartment where the complainant and her six-year-old daughter lived, threatened to kill the child, sexually assaulted the mother, and then fled. In the other four cases, the intruder sexually assaulted a female while she was either alone in her apartment or exiting her car. The Court also finds, however, that this “typical” scenario does not describe the instant offense.

691. Furthermore, the Court finds, and the record demonstrates, that Brantley’s opinion that the instant crime scene was staged and that the boys were killed by someone they knew was based on many factors, including:

  • The absence of similar crimes in the area (RR.40: 3662-63);
  • The area was generally a low-crime area (RR.40: 3663);
  • The crime scene was “high risk” for a criminal because other houses were nearby, lights were on, a car would be visible in front of the house, and the house was on a cul- de-sac (RR.40: 3663-66);
  • The alleged point of entry—the window—was intimidating because of the animal cage immediately inside the garage (RR.40: 3667-70);
  • Window screens are normally removed rather than cut during crimes (RR.40: 3671-72);
  • The route through the garage was risky in the dark (RR.40: 3672);
  • The initial focus on the children was unusual and risky given the presence of an adult (RR.40: 3673);
  • The children’s wounds were dramatically different in type and severity from Applicant’s wounds (RR.40: 3673; 3678);
  • Applicant’s statement that she chased the intruder out was inconsistent with typical violent crimes due to the disparity in her size and the described size of the alleged intruder (RR.40: 3673-74);
  • Dropping a weapon while fleeing is risky and inconsistent with most reported crimes (RR.40: 3674);
  • The location of the sock was inconsistent with a real crime because it was in the opposite direction of the exit from the cul-de-sac (RR.40: 3675);
  • The children were low risk victims due to their ages and place in society, yet appeared to be the object of the attack, thus suggesting a personal motive for the attack (RR.40: 3676-77);
  • The attack appeared to be a personal assault because there were no indications of theft or robbery (RR.40: 3676);
  • The maximum damage to the children but minimum damage to property inside the home suggested a proprietary interest in the contents of the home (RR.40: 3679);
  • The minimal damage in the living room or “Roman Room” was inconsistent with a struggle between two adults (RR.40: 3680-81; 3682-86);
  • The position of the vacuum cleaner on top of blood stains suggested deliberate placement (RR.40: 3681-82; 3688);
  • The absence of blood in the garage escape route (RR.40: 3682; 3690);
  • The presence of window screen debris on a knife from inside the house (RR.40: 3690-91);
  • The use of two knives from the same knife block inside the house in committing the offense was inconsistent because most offenders carry weapons with them to crime scenes (RR.40: 3691-93);
  • The placement of one of the knives back into the knife block suggests a proprietary interest (RR.40: 3691-93);
  • Jewelry was in plain view in the house but left undisturbed (RR.40: 3694-95);
  • The killing of the children was inconsistent with a sexual assault attack because children are usually used as leverage to control the object of the sexual assault (RR.40: 3695-97).

692. The Court finds, and the record reveals, the absence of crime in the area and the area being a low crime area were just two of the twenty-two factors that Brantley considered in concluding that the crime scene was staged.

693. The Court finds that Applicant fails to prove that Brantley would have changed his opinion if he had known about the five sexual assaults in Dallas.

694. Although Applicant asserts that the police reports are material because Brantley’s testimony was “unique and uncorroborated” (Writ Application at 104), the Court notes that this is not the standard of review; and, more importantly, the Court finds that Brantley’s testimony was corroborated by the testimony of James Cron, an expert crime scene investigator, who was also of the opinion that there was no intruder in this case. (RR34:2196-97; RR35:2420-28). Moreover, at trial, defense counsel characterized Brantley’s testimony as “common sense.” (RR40:3737, 3738).

695. Likewise, the Court finds that Applicant has failed to assert or prove that the alleged suppression of the police reports undermines confidence in the verdict. Bagley, 473 U.S. at 682.

696. The Court concludes that non-disclosure of the police reports is not material to this case.

697. Thus, the Court finds that Applicant fails to satisfy the third prong of Brady in that he fails to prove that the tendered police reports were material.

698. Likewise, the Court concludes that the State did not violate the third prong of Brady.

Charles Linch

699. The Court finds, and the record reveals that, trace evidence analyst Charles Linch testified during the State’s case-in-chief that he found several cuts in Applicant’s nightshirt that did not correspond to the wounds she suffered. (RR.37: 2889-90). Linch also analyzed the window screen cut by the intruder to enter the house and testified that the screen was constructed of fiberglass coated with rubber (RR.37: 2896-97). He testified that he recovered debris consistent with the fiberglass and rubber from the screen from one of the knives from the knife block in Applicant’s kitchen. (RR.37: 2905-28; SX. 117).

Applicant Fails to Allege & Prove Sufficient Facts

Applicant asserts that the State violated Brady v. Maryland by failing to disclose impeachment evidence that Linch spent two weeks in a psychiatric unit in 1994 for depression and alcohol dependence and that Linch had a history of chronic depression, alcohol dependence, employment problems, and a pervasive need for recognition in high-profile cases that weighed heavily on his credibility and reliability as an expert witness. (Application at 104, Reply at 31).

Applicant Has Failed to Show Sufficient Facts Proving a History of Depression and Excessive Drinking by Linch

700. In support of her claims that the State knew about but failed to disclose that Linch was hospitalized and had a history of depression and alcohol dependence, Applicant proffers three newspaper articles that appeared in the Dallas Morning News on May 7 and 10, 2000, three years after Applicant’s trial. (Writ Application Exhibits F, K, L).

701. The Court recognizes that, as a general proposition, a newspaper article is inadmissible hearsay when offered to prove the truth of the matters asserted within. Larez v. City of Los Angeles, 946 F.2d 630, 642-43 (9th Cir. 1991); United States v. Pollard, 161 F. Supp. 2d 1 (D.C. 2001); State v. Tempest, Jr., 651 A.2d 1198, 1212 (R.I. 1995). “Indeed, it is difficult to imagine a more dramatic example of hearsay than a newspaper article written by a reporter from accounts given him by other persons and by his own observations when that reporter is not present in the court and therefore not available for cross-examination.” State v. Darniano, 587 A.2d 396, 398 (R.I. 1991).

702. Even assuming arguendo that the contents of the articles are true, the Court finds they fail to establish that Linch had a history of depression or that he drank excessively to the point that it affected his work or his testimony in this or any other case.

703. The Court notes that Applicant provides no corroborating evidence in support of the newspaper articles.

704. This Court finds that the articles are insufficient to prove the facts that Applicant claims would entitle her to relief.

Applicant Has Failed to Prove that Linch Had a Pervasive Need for Recognition in High-Profile Cases or That He Had a Pro-Prosecution Bias

Applicant asserts that the State failed to disclose evidence that Linch allegedly had a desire for recognition, a propensity to testify in high-profile capital murder cases, and a pro-prosecution leaning while at SWIFS which biased his testimony. (Application at 106).

705. The Court notes that, in its writ reply, Applicant states: “Respondent devotes substantial space in its Answer refuting an assertion that Applicant never makes—that Linch has a pro-prosecution bias. . . . Applicant contends rather that Linch has a pervasive need for recognition in high-profile cases, whether retained as an expert for the prosecution or the defense.” (Reply at 31 n. 16).

706. The Court will take this statement as a concession by Applicant that there is no proof that Linch had a pro-prosecution bias.

707. Additionally, the Court will address the pro-prosecution issue due to Applicant’s explicit assertions that the newspaper articles are “directly relevant to Linch’s credibility and potential bias in favor of the prosecution,” “[t]he evidence suppressed by the prosecution . . . is demonstrative of . . . his motivation to offer misleading testimony favorable to the State in high-profile murder cases,” and “Applicant also had a right to be informed of Mr. Linch’s potential bias.” (Reply at 33 n. 19).

708. The Court finds that Applicant’s habeas evidence does not prove that Linch had an improper need for recognition or any pro-prosecution bias in high-profile cases; instead, it simply proves that Linch excelled as a trace evidence analyst and that he wanted to be recognized (both in praise and compensation) for his expertise and efforts. In that regard, because SWIFS is a major crime lab in the region, and therefore involved in the investigation of untold homicides, it is axiomatic that Linch would have been assigned to analyze evidence in many high-profile cases.

709. The Court notes that one of the May 10, 2000 newspaper articles submitted as one of Applicant’s own writ exhibits contradicts Applicant’s assertion that Linch was biased in favor of the prosecution:
Mr. Linch said he has been retained as a defense expert by lawyers in seven states. He also said the work he is most proud of came in an appeal in which he and other forensic experts provided evidence that freed a Sulphur Springs, Texas, couple wrongfully convicted of killing their daughter.

“It sure as hell is better than sending someone to death row off a hair or even a fiber,” Mr. Linch said.

(Applicant’s Writ Exhibit L at 10).

710. Furthermore, the same newspaper article relied upon by Applicant describes a handwritten note by Linch to his supervisor stating, “‘Last time I testified on blood spatter I walked a killer. My track record on being fair speaks for itself.’” (Applicant’s Writ Exhibit K at 6). Likewise, that same newspaper article reports:

Dallas prosecutors and SWIFS officials also insist Mr. Linch never demonstrated a pro-prosecution bias, noting that he sometimes did forensic work for defense attorneys.

“He doesn’t call and say, ‘Who are you trying? OK. I’m going to do the evidence that way,’” Mr. Shook said. “He just calls and says, ‘Our test shows this.’”

(Applicant’s Writ Exhibit L at 11).

711. Further, prosecutor Toby Shook states in an affidavit attached to the State’s writ response that: “I have always found [Linch] to be objective and his opinions scientifically based, and he never seemed motivated by a particular result for one side or the other. As a forensic expert, and a consummate professional, Linch would simply test the evidence and report the results.” (State’s Writ Exhibit 13).

712. The Court finds that, although Applicant tenders two affidavits from Linch with her writ application, nowhere does Linch state that he compromised his testimony for the State. Instead, he validates his work by saying, “Based on my forensic microscopic comparison, [the serration grooves in Knife #4 contained debris consisting of microscopic rubber dust particles and a microscopic fiberglass rod fragment were] microscopically consistent with debris obtained from the garage window screen at 5801 Eagle Drive, Rowlett, Texas.” (Applicant’s Writ Exhibit 9 at 3). In fact, in one of his affidavits, Linch confirms his neutral and unbiased position when he states: “I performed both hair and fiber analysis of the evidence collected from the crime scene. Based on the results of this analysis, I ultimately testified as an expert witness for the State of Texas.” (Applicant’s Writ Exhibit 8 at 2) (emphasis added). Similarly, at trial, Linch testified, “I report a scientific finding and I leave it to the lawyers to do the conclusion.” (RR37:2963).

713. The Court finds that Applicant fails to prove how a need for recognition in high profile cases clouded Linch’s objectivity or cast doubt on the reliability of his testimony, especially in light of Applicant’s concession that Linch did not have a pro-prosecution bias.

714. The Court finds that Applicant has failed to prove that the facts she alleges regarding Linch’s judgment are true.

715. Therefore, the Court finds that Applicant has failed to prove facts entitling her to relief.

Applicant Has Failed to Prove Linch Had Inadequate Skills or Training

Applicant asserts that Linch had a “series of employment problems with his superiors at SWIFS” that “continued throughout the time of [Applicant’s] trial.” (Application at 106). In support of this allegation, Applicant submits two letters in Linch’s personnel file from SWIFS, a resignation letter by Linch in April 1994, and an interoffice memo discussing SWIFS’ decision to rehire Linch in September 1994. (Applicant’s Writ Exhibits G & H). Applicant argues that Linch’s resignation and associated letters demonstrate that Linch “received insufficient training in his field, and that he did not believe the hair and fiber methodology to which he testified to be an accurate science.” (Application at 107, 109).

716. The Court finds that the only statement in either of the two letters that remotely relates to this issue is in the April 1994 letter, in which Linch writes: “There is the understanding that Charles Linch should receive no training. Therefore the incentive for me ‘hanging around’ no longer exists.” (Applicant’s Writ Exhibit G). The Court finds that that statement could indicate a decision by SWIFS that Linch was sufficiently proficient and possessed such expertise that SWIFS did not need to send him to additional training. In fact, in the April 1994 letter, Linch additionally writes, “I also ask [that] the Institute give recommendations to my prospective employers based on my major case performance and credibility.” (Applicant’s Writ Exhibit G).

717. Likewise, the Court finds that the 1994 letters do not demonstrate that Linch did not attend training or lectures at his own expense and did not continue to improve his technical skills and education by extensive reading, researching, and writing articles.

718. To the contrary, Linch’s resume shows a broad background in hair and fiber analysis, including (but not limited to) the fact that: 1) Linch began working as a trace evidence analyst for SWIFS in 1987, nine years before the instant offense; 2) he attended “Hair and Fibers, FBI Academy, 1988,” and “Forensic Serology, FBI Academy, 1988”; 3) he was the Chief Criminalist for the Forensic Center of Harris County in Houston, Texas where he supervised the trace evidence personnel from 1989 to 1990; and 4) he has published two articles, including Charles Linch, et. al., A Review of Major Factors Contributing to Errors in Human Hair Association by Microscopy, 43(2) THE AMERICAN JOURNAL OF FORENSIC MEDICINE AND PATHOLOGY 205-314 (1999). (State’s Writ Exhibit 14).

719. This Court is unpersuaded by Applicant’s reliance on the May 10, 2000 article in the Dallas Morning News and her argument that: “It is also indicative that, following [Applicant’s] trial, Linch cast doubt on his own abilities and inadequate training received at SWIFS.” (Application at 109) (emphasis added). The article provides the following:

[In April 1998] memos show, SWIFS supervisors suspended Mr. Linch from fiber–analysis cases after he refused to take a proficiency test in that area.

Mr. Linch scribbled a response suggesting his suspension also should include hair cases because “it is impossible to work a hair case without also processing the textile fibers.”

He returned to his full-time job as a hair and fiber analyst two weeks later. His supervisors said Mr. Linch passed the tests with no new training, but Mr. Linch said they first sent him to a fiber course that was unrelated to his work in Dallas.

(Applicant’s Writ Exhibit K at 7). The Court finds that this article centers on letters and memos that were written after Applicant’s trial and in no way proves that Linch had inadequate training or skills.

720. The Court finds that, when both of the May 10, 2000 articles are read in their entirety, it is clear that Linch was extremely qualified to conduct hair and fiber analysis:

Additionally, the Court finds that the explanations tendered by SWIFS in the newspaper articles are corroborated by a 1999 interoffice memo in Linch’s personnel file from the chief of the physical evidence section, Robert Poole, to the director of SWIFS, Dr. Barnard, regarding a grievance filed by Linch. (State’s Writ Exhibit 15).

721. Similarly, the Court recognizes prosecutor Shook’s explanation in the May 10, 2000 Dallas Morning News article that:

“I don’t have any personal knowledge of what was going on out there, but from an observer’s standpoint, it sounds like interoffice fighting or bitterness on his part rather than him actually trying to claim, ‘I don’t know what I’m doing.’”

(Applicant’s Writ Exhibit L at 9).

722. Likewise, the Court recognizes the following in the same article:

John Dahill, a civil attorney from the Dallas County prosecutor’s office who advised Dr. Barnard during his interview with The Dallas Morning News, said internal memos written by Mr. Linch and his supervisors could be misinterpreted. The proper context, Mr. Dahill said, is that of an angry employee at war with his boss.

(Applicant’s Writ Exhibit L at 9).

723. The Court finds that neither the newspaper article nor any of Applicant’s other habeas evidence proves that Linch was not qualified to do his job.

The Court notes that the defense tendered two affidavits from Linch, and nowhere does he cast doubt on his own abilities or claim that he received inadequate training at SWIFS. (Applicant’s Writ Exhibits 8 & 9).

724. In part because Linch passed a competency test and was hired as a senior scientist with the Virginia laboratory, the Court finds unpersuasive Applicant’s argument that Linch’s abilities were inadequate.

725. The Court finds and concludes that Applicant has failed to prove that the facts she alleges—that Linch had inadequate skills or training either before, during, or after her trial—are true.

726. Therefore, the Court finds that Applicant has failed to prove facts entitling her to relief.

Brady v. Maryland Claim

Applicant asserts that the State violated its duty under Brady to provide evidence favorable to her by withholding known impeachment evidence regarding “the State’s trace evidence analyst Charles Linch.” (Application at 104) (emphasis added).

First Prong of Brady – Disclosure & Knowledge

727. A prosecutor is not required to disclose impeachment evidence that the State does not have in its possession and that is not known to exist. See Shanks v. State, 13 S.W.3d 83, 86 (Tex. App.—Texarkana 2000, no pet.) (holding that prosecution had no duty to disclose employment records of officer with Department of Criminal Justice, as the records were not in State’s “possession” and contents were unknown to the prosecution).

Actual Knowledge

728. Based on this Court’s previous findings that Applicant failed to prove that Linch had pro-prosecution bias, a need for recognition in high-profile cases, or inadequate skills and training, the Court finds that the State did not have a duty to disclose such information. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (State did not violate duty to disclose where there was no evidence that a plea bargain agreement existed between the State and the witness).

729. Regarding its allegation that the State had actual knowledge of Linch’s alcohol dependence and depression, Applicant relies on the following language from the Dallas Morning News, which provides in part:

Dallas County Assistant District Attorney Toby Shook, Mr. Linch said, had a friend at Doctors Hospital who told him about his hospitalization, and the prosecutor asked Mr. Linch about it one day at the courthouse.

Mr. Shook, the prosecutor who had relied heavily on Mr. Linch’s testimony in the Albright case and would later use him in the Routier trial, said he believed the forensic expert had been treated for alcoholism and only recently learned that he had been hospitalized for depression, too.

(Applicant’s Writ Exhibit F at 3).

730. In response, the State has offered the affidavit of Toby Shook, which provides:

In the early 1990’s, I ran into a friend of mine, who knew I worked at the District Attorney’s office. She told me she had met another friend of mine, Charlie Linch, while they had both been in the hospital together. She explained what a great guy she thought Linch was, and I agreed. I did not know why she or Linch had been in the hospital, and I did not ask.

A few weeks later, I saw Linch at the courthouse. I told him that I had seen a friend of mine who said she had met him in the hospital. Linch looked surprised but did not elaborate. I never asked Linch why he had been in the hospital, and he never volunteered any information.

Sometime after the Routier trial, I learned that my friend who told me about being hospitalized with Linch was being treated for a drinking problem. It was then that I speculated that she and Linch must have been hospitalized for the same reason.

I had heard from time to time that Linch sometimes drank a lot outside of work, but I never had personal knowledge of this. I have never heard or seen any evidence that his drinking interfered with or affected his work in any way, and no one has ever told me that Linch had a drinking problem that interfered with his work. To my knowledge, Linch has always performed exemplary work as a forensic scientist, and he has been and continues to be well-respected in the community as well as both inside and outside the State for his technical skills and expertise. In fact, throughout the years that I’ve known Linch, I’ve never observed him under the influence of alcohol at the courthouse or while working.

I was not aware of any allegations that Linch suffered from depression or that he had been admitted to the psychiatric unit of a hospital until newspaper reporters began investigating Linch’s background for the newspaper articles. I have never heard about or seen evidence that depression interfered with Linch’s work in any way while he was at SWIFS.

(State’s Writ Exhibit 13).

731. The Court finds that Shook’s affidavit thoroughly details what he knew about Linch and when he knew it and that Shook’s affidavit fills in many of the gaps left unanswered by the articles in the Dallas Morning News.

732. The Court is familiar with Shook, finds that Shook is a credible witness, finds the statements in the affidavit to be worthy of belief, and accepts the statements contained in the affidavit as true and correct.

733. The Court finds that Shook’s affidavit demonstrates that the State did not have actual knowledge prior to trial of any alcohol dependence by Linch that interfered with or affected his work.

734. To the extent it could be argued that Shook at some point in time may have speculated that Linch might have issues with alcohol, the Court recognizes that the government has no Brady obligation to communicate speculative information to the defense. United State v. Diaz, 922 F.2d 998, 1006 (2nd Cir. 1990) (quoting Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring)).

735. The Court also finds that Applicant has failed to tender evidence that the prosecution knew anything about Linch being hospitalized for depression or that he was depressed; and, in fact, Applicant’s own evidence demonstrates that the State did not know. (Applicant’s Writ Exhibit F at 3, explaining that Toby Shook “only recently learned that he had been hospitalized for depression, too.”)

736. Likewise, the Court finds that Shook explicitly states in his affidavit that he was not aware of any allegation that Linch suffered from depression or that he had been admitted to the psychiatric unit of a hospital until three years after the trial when newspaper reporters began investigating Linch’s background.

737. The Court further notes that, while the government is obligated to tender to the defense all exculpatory records in its possession, it is not obligated to seek out confidential information in the possession of third parties. See United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998) (no obligation to obtain witness’s medical records not already in the government’s possession); United States v. Skorniak, 59 F.3d 750, 755 (8th Cir. 1995) (no obligation to obtain psychological records).

738. The Court recognizes that a prosecutor has no duty under Brady to investigate the mental state of its witnesses in order to uncover impeachment evidence for the defense. United States v. Wilson, 116 F.3d 1066, 1082 (5th Cir.), vacated in part sub. nom, United States v. Brown, 123 F.3d 213 (5th Cir. 1997) (en banc); East v. Scott, 55 F.3d 996, 1003 (5th Cir. 1995).

739. Thus, the Court concludes that the prosecution had no duty under Brady to uncover for the defense the fact that Linch had been hospitalized for depression in 1994 for two weeks.

Imputed Knowledge

740. The Court finds that Applicant fails to offer any evidence that SWIFS was acting on the government’s behalf in this case.

741. Instead, the Court finds, and the record evidence reveals, that the State interacted with SWIFS differently than with the law enforcement personnel and other State’s witnesses:

a. In a December 17, 1996 letter to Applicant’s retained counsel, prosecutor Greg Davis writes: “As always, SWIFS personnel remain ready to talk with you about this case . . . ” (State’s Writ Exhibit 17).

b. Without the State being present, every member of Applicant’s defense team each met at least once with Linch to discuss the testing he performed and review his findings. (RR37:2818-2826; Applicant’s Writ Exhibit 8 at 2-3).

c. The above-two situations differ from the position the State took with regard to what it considered to be the State’s witnesses. Specifically, at one of Applicant’s bond hearings, the prosecutor stated:

The State has made an offer to the defense, on more than one occasion, to make paramedics, police officers and the like available to the defense for interviews, with a stipulation that some employee of the district attorney’s office be present. On each occasion where we have made that offer, that has been refused, and turned down by the defense.

(RR5:413).

742. The Court also finds that Applicant’s own writ exhibit, an article in the Dallas Morning News, quotes Dallas prosecutor Shook as explaining that Linch “doesn’t call and say, ‘Who are you trying? OK. I’m going to do the evidence that way.’ . . . He just calls and says, ‘Our test shows this.’” (Applicant’s Writ Exhibit L at 11).

743. The Court further finds that Applicant fails to prove that, due to the nature of its business, SWIFS should be considered to be a law enforcement agency;” instead, Applicant merely asserts that “[e]ighty to eighty-five percent of the lab’s work is for law enforcement agencies.” (Reply at 32 n. 18, citing Caw v. State, 851 S.W.2d at 322, 324 (Tex. App.—El Paso 1993, pet. ref’d)).

744. The Court finds that the physical evidence section of SWIFS functions independently from any law enforcement agencies. See Caw v. State, 851 S.W.2d 322 (Tex. App.—El Paso), pet. ref’d, 864 S.W.2d 546 (Tex. Crim. App. 1993). In Caw, the El Paso Court of Appeals held:

We hold that the chemists employed by the Dallas County Forensic Laboratory [a division of the Southwestern Institute of Forensic Science] are not “law enforcement personnel” . . . . The lab functions independently from any law enforcement body, and its services are available to any person, public or private, corporate or individual, who wishes to pay the lab fees. The chemical analyses are routine procedures, done for whomever requests them. . . . The Dallas County lab is not the inherently adversarial, litigious and prosecution-oriented environment characterized in Cole. It is an autonomous agency, and we hold that the results of its testing need not be viewed with the same caution reserved for law enforcement agencies.

Caw, 851 S.W.2d at 324; see Durham v. State, 956 S.W.2d 62, 63-65 (Tex. App.—Tyler 1997, pet. ref’d) (holding that chemists and toxicologists of county forensic science center were not “law enforcement” for purposes of Texas Rules of Evidence 803(6) or 803(8)); see also New York v. Washington, 654 N.E.2d 967, 969 (N.Y. 1995) (holding that the medical examiner’s office is not a law enforcement agency and that the prosecutor’s office did not have “possession or control” over documents maintained by that office).

745. The Court finds that Applicant’s own writ exhibit describes SWIFS as a crime lab with experts who are “charged with providing independent, unbiased scientific services and expert testimony.” (Applicant’s Writ Exhibit K at 6) (emphasis added).

746. Similarly, the Court finds that Charlie Linch states in an affidavit submitted by Applicant: “I performed both hair and fiber analysis of the evidence collected from the crime scene. Based on the results of this analysis, I ultimately testified as an expert witness for the State of Texas.” (Applicant’s Writ Exhibit 8 at 2) (emphasis added).

747. The Court finds that Robert Poole, chief of the physical evidence section of SWIFS, explains in an affidavit submitted by the State that:

SWIFS and its constituent parts described above are independent entities from the Dallas County District Attorney’s Office and the Rowlett Police Department. Our function is to provide independent, unbiased scientific services and testimony. . . . The Dallas County District Attorney and Rowlett Police Department (and anyone else) can only request that we perform services. They cannot dictate methods used, nor do they control the outcome of the analysis. They do not have hiring or firing authority over SWIFS employees, or even input into those decisions. This was true in 1996, and it is true today.

(State’s Writ Exhibit 16).

748. Thus, the Court finds that Applicant has failed to prove that SWIFS should be considered a part of law enforcement or that SWIFS was part of the prosecution team in this case.

749. Therefore, the Court finds that Applicant has failed to prove that information possessed by SWIFS regarding Linch should be imputed to the State.

750. Likewise, the Court concludes that SWIFS’ knowledge should not be imputed to the State.

No Duty to Disclose Inadmissible Impeachment Evidence

751. The Court notes that to impeach a witness, it must be established that the evidence is relevant and material to the case. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995).

752. Case law dictates that a State’s attorney is under no duty to turn over evidence that would be inadmissible at trial. Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1993).

753. The Court finds that Applicant has failed to prove that the challenged evidence is admissible.

A. Employment Issues

754. The Court adopts its previous findings that Applicant has failed to present evidence that Linch lacked adequate skills or training, and the Court finds that the only remaining issue that could have been used for cross-examination of Linch would have been his alleged “tenuous employment relationship” with SWIFS.

755. The Court finds and concludes, however, that evidence of Linch’s “tenuous employment relationship” with SWIFS would not have been admissible at trial because any probative value would have been substantially outweighed by the possibility of sidetracking the jury and misusing time by opening the door to a detailed examination of Linch’s employment with SWIFS over a ten-year period. See TEX. R. EVID. 403; United States v. Willis, 43 F. Supp. 2d 873, 879 (N.D. Ill. 1999).

756. The Court finds that, because the information would have been inadmissible, the State had no duty to disclose it. Lagrone, 942 S.W.2d at 615; Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).

B. Excessive Drinking

Applicant argues that the State failed to disclose Linch’s alleged history of alcoholism. (Application at 111). Applicant fails to explain, however, how a general allegation that Linch had a “history of alcoholism” would have constituted admissible impeachment evidence, except to say that it “weighed heavily on his credibility and reliability as an expert witness.” (Application at 104).

757. The Court recognizes that Rule of Evidence 608(b) expressly prohibits the use of specific instances of conduct of a witness – such as drinking excessively – for impeachment. TEX. EVID. R. 608(b); see Lagrone, 942 S.W.2d at 613 (“Although long term alcohol or drug use may produce some minimal effects on witness’ perceptual capacity, this Court has consistently classified inchoate alcohol and drug usage as specific instances of conduct which are immune from impeachment”).

758. The Court further notes that prior specific conduct would be admissible to demonstrate a resulting lack of capacity. Lagrone, 942 S.W.2d at 612-13 (witness is subject to on cross-examination only when his perceptual capacity is physically impaired by the alcohol or drugs at time of event).

759. A witness’ credibility is subject to attack on cross-examination only when his perceptual capacity is physically impaired by the intoxicating effects of alcohol during his observation of pertinent events. Lagrone, 942 S.W.2d at 613 (citing TEX. PRACTICE § 607.4, p. 563-64 (Goode, Wellborn, & Sharlot 1993)).

760. Thus, the Court finds that, in order for the evidence to be admissible, Applicant must prove that Linch’s alleged alcohol abuse was contemporaneous with and affected his work in this case. See United States v. DiPaolo, 804 F.2d 225, 229 (2nd Cir. 1969) (affirming exclusion of cross-examination of government witness about drinking problem in the absence of evidence that witness was under influence of alcohol at time of episode in suit or during her testimony, and drinking problem in and of itself held irrelevant to credibility).

761. The Court finds that Applicant fails to allege or prove that Linch’s alleged excess drinking (which Applicant’s evidence only alleges occurred two years before this trial) affected his work or his testimony in this case.

762. The Court finds that Applicant’s own writ exhibit, the May 10, 2000 Dallas Morning News article, provides that “Mr. Linch said that he stopped drinking after his hospitalization in February 1994 ‘until after the Routier trial’ . . . .” (Applicant’s Writ Exhibit L at 9-10) (emphasis added).

763. Thus, the Court finds that Applicant’s own evidence demonstrates that, not only was Linch not drinking at the time of the instant offense or during his testing of the evidence, he had not been drinking for two years.

764. Furthermore, the record reveals that, between the time of the offense and the beginning of trial, Applicant’s two appointed attorneys, their investigator, and two of their forensic experts, as well as three of her retained attorneys and their investigator, each met at least once with Linch for at least two hours to discuss the testing he performed and review his findings. (RR37:2818-2826; Applicant’s Writ Exhibit 8 at 2-3).

765. The Court finds that Applicant fails to present any evidence that, during these interactions between nine of Applicant’s representatives and Linch for significant amounts of time, Linch ever appeared to have been drinking or was in any way impaired by alcohol.

766. Additionally, the Court finds that Applicant has tendered the seven-page affidavit of Terry Laber, one of the forensic experts hired by her appointed counsel, regarding his meetings with Linch and his review of the evidence, and nowhere does Laber question Linch’s mental capacity, his capability, intelligence, or integrity. (Applicant’s Writ Exhibit 7).

767. Applicant also fails to present any evidence that calls into question Linch’s mental capacity or his working ability at any time pertinent to this trial.

768. Because Rule 608 prohibits evidence of prior specific conduct when offered to attack the general credibility of the witness, and because Applicant offers no evidence that Linch’s perceptual capacity pertinent to his work in this case was “impaired by the intoxicating effects of alcohol,” the Court finds that Applicant has failed to prove that this evidence would have been admissible at trial.

769. Likewise, the Court concludes that evidence of any alleged excessive drinking by Linch would not have been admissible at trial.

C. Mental State and Hospitalization

770. The Court recognizes that, although mental records can be material as impeachment evidence because they can cast doubt on the accuracy of a witness’ testimony, a history of mental illness is not necessarily admissible as impeachment evidence. See United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996). The Court of Criminal Appeals has addressed the issue of when a witness’ defect of capacity would be admissible:

Cross-examination of a testifying State’s witness to show that the witness has suffered a recent mental illness or disturbance is proper provided that such mental illness or disturbance is such that it might tend to reflect upon the witness’ credibility. [citation omitted.] However, . . . the mere fact that the State’s testifying witness in the recent past suffered or received treatment for a mental illness or disturbance does not, for this reason alone, cause this kind of evidence to become admissible impeachment evidence.

Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987); See also, United States v. Jimenez, 256 F.3d 330, 343-44 (5th Cir. 2001); United States v. Smith, 77 F.3d at 516; see also Arizona v. Dumaine, 783 P.2d 1184, 1198 (Ariz. 1989) (“The use of a witness’s mental condition for impeachment purposes is proper if there is an indication that the mental condition affected the truth of his testimony”).

771. The Court finds that Applicant fails to assert or prove that Linch’s depression adversely affected his ability to perceive, recall, or accurately relate the events related to his forensic analysis or his testimony. Instead, Applicant merely asserts generally that it “weighed heavily on his credibility and reliability as an expert witness,” with no further argument or analysis. (Writ Application at 104, 110). The Court finds that the newspaper articles submitted by Applicant state that Linch was admitted to the psychiatric unit for depression in 1994, two years before Applicant’s offense and three years before her trial. Applicant offers no specific details about the depression outside of the newspaper article, and the article merely provides inadmissible statements.

772. The Court finds that Applicant fails to provide any evidence as to whether Linch continued taking depression medication after he left the hospital (or at the time of the investigation or trial of this case) and, if so, what he was taking, in what dosage, for how long, and whether any such medication would affect his capacity as an expert witness.

773. Even assuming arguendo that Linch was taking anti-depressant medication at the time of the investigation and trial, the Court finds that Applicant has tendered absolutely no evidence that it affected his work in any way. See Amos v. State, 819 S.W.2d 156, 159 (Tex. Crim. App. 1991) (holding that evidence that a State’s witness who consulted a psychiatrist three or four times for depression one week after the victim’s murder and was taking an antidepressant at the time of trial was not Brady evidence that the State was required to disclose where Amos failed to show that the antidepressant affected the witness’ testimony).

774. Furthermore, the Court finds that, between the time of the offense and the beginning of trial, nine members of Applicant’s defense team each met at least once with Linch for at least two hours at a time to discuss the testing he performed and review his findings. (RR37:2818-2826; Applicant’s Writ Exhibit 8 at 2-3).

775. The Court finds, however, that Applicant does not assert or prove that any of those nine members of the defense team saw or heard about Linch exhibiting any signs of depression that affected his work, much less that Linch exhibited signs of depression that reached the level of psychosis or a “persistent disabling disturbance of his mental and/or emotional equilibrium, manifested through persistent maladjustment and more or less irrational, even bizarre behavior or speech.” See Virts, 739 S.W.2d at 30.

776. The Court finds that the fact that Linch’s stay at the psychiatric unit was limited to two weeks (with no evidence that he ever went back) demonstrates that his depression was mild. Applicant proffers no evidence to dispute such a conclusion. Cf. United States v. Smith, 77 F.3d at 516 (holding that witness’ records should have been disclosed to the defense where witness was hospitalized for chronic depression for approximately eighteen months and he attended a mental health clinic for an additional four months thereafter).

777. The Court notes that Linch states in one newspaper article, “In retrospect . . . . it could have been a well-meaning overreaction. I wanted to do something else, another job.” (Applicant’s Writ Exhibit F at 4).

778. Thus, the Court finds that Applicant has failed to prove that Linch’s testimony or investigation was affected by any type of mental condition.

779. The Court finds, therefore, that Applicant has failed to prove that evidence of Linch’s alleged mental condition would have been admissible.

780. The Court notes that during Applicant’s trial, defense counsel tried to introduce evidence of the psychiatric history of Barbara Jovell, a friend of Applicant, including hospitalizations for depression. (RR36:2656-58). After a lengthy hearing on the admissibility of this impeachment evidence, this Court held that the evidence was not “relevant to the witness’s character for truthfulness or untruthfulness, regarding her testimony in this case, and will not be permitted before the jury.” (RR36:2696)).

781. Based on the ruling on the issue of Jovell’s hospitalization, this Court finds that the trial judge in this case would have likewise not allowed the defense to introduce evidence of Linch’s hospitalization and depression.

782. Thus, the Court finds that Applicant has failed to prove that the State violated the first prong of Brady.

783. Similarly, the Court concludes that the State did not violate the first prong of Brady.

Second Prong of Brady–Favorable Evidence

784. The Court recognizes that evidence that is not admissible for impeachment purposes does not constitute favorable impeachment evidence. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993); Callaway v. State, 818 S.W.2d 816, 829-30 (Tex. App.—Amarillo 1991, pet. ref’d); see also Dowthitt v. Johnson, 230 F.3d 733, 755-56 (5th Cir. 2000).

785. The Court adopts its previous findings and conclusions that evidence of Linch’s hospitalization, alcohol dependence, depression, and tenuous work relationship with SWIFS would have been inadmissible.

786. Moreover, the Court finds that Amos v. State dictates that evidence of the hospitalization, depression, or alcohol dependence by Linch does not constitute favorable evidence that must have been disclosed. 819 S.W.2d at 159.

787. Thus, the Court finds that Applicant fails to satisfy the second prong of Brady.

788. Similarly, the Court concludes that the State did not violate the second prong of Brady.

Third Prong of Brady–Material Evidence

Applicant asserts that, had Linch been discredited as an unreliable witness, “the prosecution would have been hard-pressed to rely on the invaluable inference suggested by Linch that a member of the Routier household had cut the garage window screen, thereby contradicting [Applicant’s] testimony that an intruder had broken into her house.” Applicant then concludes that “[w]ithout the State’s critical evidence of a ‘staged’ crime scene,” the case would have been placed in such a different light as to undermine confidence in the verdict. (Application at 111).

789. The Court acknowledges that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. New evidence that is merely impeaching, however, will not ordinarily justify a new trial. United States v. Reyes, 49 F.3d 63, 68 (2nd Cir. 1995) (citing Mesarosh v. United States, 352 U.S. 1, 9 (1956)); see United States v. Aguillar, 387 F.2d 625, 626 (2nd Cir. 1967) (“The discovery of new evidence which merely discredits a government witness and does not directly contradict the government’s case ordinarily does not justify the grant of a new trial”).

790. In this case, Applicant does not assert or prove that Linch’s testing results were inaccurate due to the effects of the impeaching evidence; instead, he merely asserts that the challenged information would have discredited Linch as an unreliable witness.

791. The Court finds that, because Applicant fails to prove that the challenged information would have directly contradicted the government’s case, Applicant has failed to prove that the State violated the third prong of Brady.

792. Furthermore, the Court finds that Applicant fails to offer any evidence that the impeachment evidence is admissible or that, had defense counsel been able to cross-examine Linch with the challenged information, it would have undermined confidence in the verdict. In fact, the record demonstrates otherwise.

793. The Court finds that, even disregarding Linch’s testimony, there is an abundance of compelling evidence in this case that would have convinced the jury that Applicant committed these heinous crimes. Specifically, (but not limited to): 1) the extreme difference in the nature and extent of Applicant’s superficial wounds and the boys’ penetrating fatal stab wounds; 2) the 911 tape in which Applicant told the operator that her babies had been stabbed and then paused to say: “I picked up the knife. Maybe we could have gotten some fingerprints;” 3) Applicant’s flat affect at the hospital; 4) Applicant’s multitude of inconsistent stories; 5) the fact the crime scene did not match her stories; 6) the existence of blood stains in the kitchen sink that someone had tried to wipe clean; and 7) the fact that this was not a sex crime or a robbery but was a very personal attack.

794. The Court finds that Linch’s testimony—that screen fragments were found on one of the knives in the Routier’s butcher block—was one small part of huge jigsaw puzzle that the State took over three weeks to put together for the jury. Linch testified one time, one day. (RR37).

795. The record reveals that defense counsel advanced its own theory by effectively cross-examining Linch for 113 pages of the record. Defense counsel elicited from Linch that he could not say the knife was “absolutely clean” when he made his test cuts to collect comparison fibers (RR37:3024-26) and that Linch did not check his hands for contamination prior to examining the knife under the microscope. (RR37:3028-29). Defense counsel also elicited from Linch that more discriminating testing was possible, but that it was not done because he could not remove the recovered particles from his slide. Significantly, defense counsel asked Linch: “So if a person puts too much stock in what is microscopically similar, they might draw the wrong conclusion?” Linch replied: “Oh, yeah.” (RR37:2966). And, in fact, in closing argument, the prosecutor, possibly in reaction to the defense cross-examination of Linch, argued:

And what else? . . . You have got the bread knife, with the glass rods that tells you, well, that just doesn’t happen. Someone doesn’t just go in the house and cut the screen and come back out. But if you take that out of this scenario, it’s still inconsistent, because if somebody is going to cut that screen, then doesn’t bring – gets the knife from the home itself. You bring your own weapon when you are intent on homicide.

(RR46:5235).

796. The Court finds that Linch’s testimony was merely one piece of an abundant supply of evidence that the crime scene was staged.

797. The record reveals that James Cron, an expert crime scene investigator, walked through the crime scene with Rowlett officers later on the morning of the offense. (RR34:2143-49, 2156-83; RR33:1603; RR32:1391). Cron testified:

My opinion that an intruder did not commit these offenses was based on the entire scene. Not one object, or item. It was based upon the point of entry, starting there.

There were no signs of entry or exit from somebody coming in at night from the outside, the type of cutting on the screen is inconsistent with the average or the known ways to enter, cutting screens.

This is all common sense, the screen will pull out very easily. The cuts were not by the two latches at the bottom where the cuts normally are when the screen is removed.

(RR35:2420-21).

798. The Court finds that the screen being slashed in the middle was in and of itself evidence that the crime scene was staged.

799. The record reveals Cron’s additional testimony that blood found in the utility room—one of the locations where Applicant claimed she found the knife—was inconsistent with blood deposited from a dropped knife or by a running person. (RR35:2279-82).

800. Likewise, the record reveals that Tom Bevel, an expert in crime scene and blood splatter analysis with 25 years’ experience, examined the bloodstains in the locations where Applicant claimed she picked up the knife—the utility room and living room—and determined that none of the bloodstains found in either location was consistent with the stains generated by his tests. (RR38:3223, 3285-3301).

801. Additionally, Special Agent Alan Brantley testified that, in his opinion, the boys were killed by someone they knew well, and the crime scene was staged. (RR40:3661). He based his opinion on twenty-two factors, only one of which included Linch’s finding that fibers from the screen were found on a knife in the butcher block. (RR40:3663-3697).

802. The Court acknowledges that “‘[t]he materiality of Brady evidence depends almost entirely on the value of the evidence relative to the other evidence mustered by the State.’” Spence, 80 F.3d at 995 (quoting Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990)); Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994) (citing Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993)). More specifically, the Fifth Circuit has held, “[W]hen the testimony of a witness who might have been impeached by undisclosed evidence is strongly corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence generally is not found to be material.” Wilson, 28 F.3d at 439 (emphasis added); see East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997).

803. Thus, the Court finds that the crux of Linch’s testimony—that someone in the house cut the screen, and therefore there was no intruder—was cumulative of the testimony of three crime scene experts and many other pieces of evidence.

804. The Court finds that, because the crux of Linch’s testimony was strongly corroborated by additional evidence, the alleged undisclosed evidence regarding Linch is not material.

805. The Court finds that Applicant has failed to prove that the non-disclosure of Linch’s 1994 hospital stay and his alleged history of depression, alcohol dependence, employment problems, and need for recognition could reasonably be taken to put the whole case in such a different light as to undermine confidence in the jury verdict.

806. The Court concludes that the alleged non-disclosed evidence regarding Linch is not material.

807. Thus, the Court finds that Applicant fails to prove that the State violated the third prong of Brady.

808. Likewise, the Court concludes that the State did not violate the third prong of Brady.

Dr. Kenneth Dekleva

In this portion of his sixth ground for relief, Applicant asserts that “the State consulted a forensic psychiatrist, Dr. Kenneth Dekleva, to evaluate Petitioner’s future dangerous[ness]” and that “[a]lthough Dr. Dekleva concluded that Petitioner would not pose a future danger to society, the prosecution did not provide the results of Dr. Dekleva’s evaluation to Petitioner’s defense counsel in clear violation of Brady v. Maryland.” (Application at 112).

Applicant Fails to Allege & Prove Sufficient Fact

809. According to Applicant, the State hired Dr. Dekleva specifically to evaluate Applicant’s future dangerousness, Dr. Dekleva concluded she would not pose a future danger to society, and the prosecution did not provide her defense team the results of Dr. Dekleva’s evaluation. (Writ Application at 118).

810. In support of these factual claims, Applicant tendered the affidavit of Dr. J. Douglas Crowder, which provides in pertinent part:

Over a period of years, I have met with a colleague of mine, Dr. Kenneth Dekleva, to discuss a number of issues of interest in the field of forensic psychiatry.

During a lunchtime conversation that took place, to my best recollection, in the Summer of 2000, Dr. Dekleva told me that he served as a psychiatric consultant for the State of Texas in the capital case of Texas v. Routier. I understood that Dr. Dekleva’s duties as a consultant were to advise the Prosecution on any psychiatric issues presented by the case, and possibly to serve as an expert witness. Dr. Dekleva informed me that he opined to the Prosecutors in that case that, in his professional opinion, Darlie Lynn Routier is not likely to constitute a future danger in prison.

Dr. Dekleva acknowledged that Prosecutors had not asked him to testify about this opinion at any point during the trial of Ms. Routier.

(Applicant’s Writ Exhibit 3).

811. In its habeas, the State tendered an affidavit from prosecutor Toby Shook. (State’s Writ Exhibit 13).

812. The Court is familiar with Shook, finds that Shook is a credible witness, finds the statements in the affidavit to be worthy of belief, and accepts the statements contained in the affidavit as true and correct.

813. The Court finds that Dr. Dekleva was hired by the State as a consultant in anticipation of the defense raising traumatic amnesia.

814. The Court finds that the State discussed risk factors concerning future dangerousness with Dr. Dekleva.

815. The Court finds Dr. Dekleva never expressed an opinion on the ultimate issue of Darlie Routier’s future dangerousness.

816. The Court finds there were numerous reasons why Dr. Dekleva was not called as a witness at punishment, including the fact that the defense did not call a psychiatrist at punishment.

817. The State also tendered an affidavit from Dr. Dekleva, in which he
explains:

[M]y role in the Routier case was primarily that of a psychiatric consultant, in which I assisted the prosecution in understanding the complex mental health issues expected to arise in the guilt-innocence and punishment portions of the trial. . . . Regarding punishment issues, I was asked to review and assess [potential] aggravating factors and mitigating factors in the Routier case . . . . In terms of my specific findings, I informed the prosecution that I could expect vigorous cross-examination in [potential] punishment-phase testimony, due to the presence of numerous potential mitigating factors in her history, including Ms. Routier’s lack of a prior criminal history, lack of a history of prior violence, and lack of violent behavior/jail disciplinaries while incarcerated in the Dallas County jail (while awaiting trial). . . . I did not render an opinion to any member of the prosecution team regarding the ‘ultimate issue’ in the Routier case, because I believed that my [potential] testimony would be more effective if couched in the language of risk assessment, e.g. an examination of the balance between aggravating factors and mitigating factors.

* * *

. . . I do not recall specifically discussing ‘ultimate issue’ [future dangerousness] questions with Dr. Crowder, because . . . I had not framed or articulated my consultations with the Dallas County District Attorney’s office in such a manner. I do recall discussing potential mitigating issues (in Ms. Routier’s defense) with Dr. Crowder . . . .

(State’s Writ Exhibit 18) (brackets and emphasis in the original).

818. The Court finds that Dr. Delkeva’s affidavit is corroborated by an article written by him in “The Journal of the American Academy of Psychiatry and the Law” discussing “the prediction of future dangerousness and assessment of aggravating and mitigating circumstances in capital sentencing proceedings.” See Kenneth B. Dekleva, MD, Psychiatric Expertise in the Sentencing Phase of Capital Murder Cases, 29 J. AM. ACAD. PSYCHIATRY LAW 58-67 (2001)

(State’s Writ Exhibit 19).

819. The Court finds that this article, written one year before Dr. Crowder tendered his affidavit, outlines Dr. Dekleva’s methodology and approach to relevant psychiatric issues in capital cases and lends credence to his version of his conversation with Dr. Crowder.

The Court finds that in his article Dr. Dekleva does not advocate predicting future dangerousness in terms of an ultimate issue. (State’s Writ Exhibit 19 at 60).

820. The Court finds that Dr. Dekleva’s article substantiates both Dr. Dekleva’s and Toby Shook’s assertions that Dr. Dekleva never offered an ultimate opinion on Applicant’s potential for future dangerousness.

821. The Court finds that Dr. Dekleva never had access to Applicant and never personally “evaluated” her, and therefore the State did not possess any “results.”

822. The Court finds that Dr. Dekleva’s article, written one year before Dr. Crowder provided the defense with an affidavit, demonstrates his mindset regarding the role of forensic experts in the prediction of future dangerousness, and it corresponds to Dr. Dekleva’s recollection of his conversation with Dr. Crowder as set out in Dr. Dekleva’s affidavit.

823. Dr. Crowder’s affidavit, on the other hand, is less persuasive. Applicant tenders no corroborating evidence that would tend to support his version of his conversation with Dr. Dekleva.

824. The Court finds that Dr. Dekleva’s specific recall—that he discussed potential mitigating issues with Dr. Crowder and that he speculated to Dr. Crowder that the presence of potential mitigating factors in Applicant’s case may have played a role in the State’s decision not to call him as a punishment-phase witness—provides a plausible, credible explanation for the differences in the two doctor’s affidavits regarding the content of their conversation i.e. that Dr. Crowder misconstrued, summarized and/or over-simplified his conversation with Dr. Dekleva to the extent of inadvertently mischaracterizing the substance of the conversation.

825. The Court finds that the statements in Dr. Crowder’s affidavit are unpersuasive in light of Dr. Dekleva’s explanation of the content of the conversation and the substantial corroborating evidence demonstrating that Dr. Dekleva would not have expressed an opinion as to the ultimate issue on future dangerousness to prosecutor Shook.

826. The Court finds that Applicant has failed to prove that Dr. Dekleva ever expressed an opinion to the Dallas County District Attorney’s Office regarding the ultimate issue on future dangerousness, i.e., that Applicant was not likely to constitute a future danger.

827. Thus, the Court finds and concludes that Applicant fails to prove that the facts she alleges are true, and therefore, Applicant fails to produce evidence that entitles her to relief. See Ex parte Chappell, 959 S.W.2d at 628.

Brady v. Maryland Claim

Applicant asserts that Dr. Devkleva’s alleged opinion on the ultimate issue of Applicant’s future dangerousness should have been disclosed under Brady because it was favorable to Applicant on the question of punishment, it was directly available to prosecutors, and it was clearly material because no psychiatric evidence on this question was offered either by the State or by Defense Counsel. (Application at 112).

First Prong of Brady – Knowledge, Possession & Disclosure

828. The Court adopts its previous findings and finds that Applicant has failed to prove that Dr. Dekleva ever “evaluated” Applicant or stated a conclusion as to her future dangerousness. Because the State never possessed any “results,” there was nothing for the State to disclose.

829. Furthermore, Dr. Dekleva explains in his affidavit that any potential testimony regarding Applicant’s future dangerousness would have been “neutral” and “ineffective” because he was unable to personally evaluate and assess Applicant and her mental state. (State’s Writ Exhibit 18). Neutral evidence does not fall within the dictates of Brady. See Andrews v. Collins, 21 F.3d 612, 626 (5th Cir. 1994) (“although exculpatory and impeachment evidence falls within the purview of Brady, neutral evidence does not”); Dalbosco v. State, 960 S.W.2d 901, 903 (Tex. App.—Texarkana 1997, order), disp. on merits, 978 S.W.2d 236 (Tex. App.—Texarkana 1998, pet. ref’d).

830. The Court finds that Dr. Dekleva never met with Applicant; and therefore, he had no personal knowledge of her mental status (which Dr. Dekleva felt was an indispensable part of a future dangerousness determination). In helping the State prepare for punishment, Dr. Dekleva merely confirmed for the prosecution that they could expect vigorous cross-examination on Applicant’s lack of a prior criminal history, lack of history of prior violence, and lack of violent behavior in jail. (State’s Writ Exhibit 18). These are basic profile characteristics that any psychiatric expert would have recognized as well as commonly-known factors that are discussed frequently in case law and in newspaper articles. (State’s Writ Exhibit 13). See, e.g., Jasper v. State, 61 S.W.3d 413, 418 (Tex. Crim. App. 2001).

831. The Court finds that Applicant had two forensic experts at her disposal, Dr. Lisa Clayton and Dr. Richard Coons (both of whom testified in the guilt phase).

832. The Court finds that defense counsel hired Dr. Clayton to conduct “a psychiatric evaluation” of Applicant but that counsel gave no specific instructions or parameters on the interview (RR43:4666); she spent twelve hours interviewing Applicant (RR43:4633-34, 4645); she had already met with Applicant eighteen times as part of her regular duties at the Dallas County jail as a jail psychiatrist a few months earlier; and that she relied on her first impressions of Applicant in later assessing her for this case. (RR43:4656, 4662, 4665). Moreover, Dr. Clayton testified that her opinions regarding Applicant were based on textbooks, articles, the 911 tape, Applicant’s journal and written statement, and interviews of Applicant and many of her family members. (RR43:4606-07, 4634, 4667-69).

833. The Court finds that the defense was privy to extensive amounts of evidence to which Dr. Dekleva did not have access.

834. The Court finds that Dr. Clayton was clearly qualified to testify as to the future dangerousness special issue. (RR43:4619—testifying that she “evaluate[s] people for competency, sanity, dangerousness, that sort of thing”). Because Dr. Clayton testified that she believed Applicant was telling the truth and suffered from “traumatic amnesia,” and thereby implied that Applicant was not guilty (RR43:4650-51, 4670, 4672; 46:5310), it is reasonable to assume that Dr. Clayton would have been comfortable testifying that Applicant would not be a future danger. Thus, Applicant could have easily obtained an opinion from an expert predicting that she would not be a future danger.

835. Thus, the Court finds that the underlying facts and data to which Dr. Dekleva had access and upon which he could have based an opinion regarding the ultimate issue of Applicant’s future dangerousness were as equally well known and available to the defense, and therefore, the Court concludes that any opinion Dr. Dekleva may have had would not constitute Brady material. See Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (holding that, if evidence is in the possession of the defendant or can be easily obtained by the defense, it will not be considered Brady material).

836. Additionally, the Court recognizes that, even without punishment-phase expert testimony, defense counsel vehemently argued in punishment-phase closing arguments that Applicant would not be a future danger. (RR49: 5681, 5682, 5705). Defense counsel’s argument demonstrates that they were well aware of all the same potential mitigating factors that Dr. Dekleva states he considered in his risk assessment, including Applicant’s “lack of prior criminal history, lack of a history of prior violence, and lack of violent behavior/jail disciplinaries while incarcerated in the Dallas County jail (while awaiting trial).” (State’s Writ Exhibit 18 at 2).

837. Because Dr. Dekleva could not provide any fact or expert evidence to which the defense did not already have access to, the Court concludes that Dr. Dekleva’s alleged opinion does not constitute Brady material that should have been disclosed. See Hogue v. Scott, 874 F. Supp. 1486, 1527 (N. D. Tex. 1994) (prosecutor’s failure to disclose evidence of defendant’s good prison behavior was not a Brady violation absent a showing that the prosecutor knew more about the defendant’s prison behavior than the defendant and his attorney did); United States v. LeRoy, 687 F.2d 610, 619 (2nd Cir. 1982) (“The rationale underlying Brady is not to supply a defendant with all the evidence in the government’s possession which might conceivably assist in the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the government”).

838. The Court finds that because Applicant has failed to prove that Dekleva rendered an opinion that the State should have disclosed, Applicant fails to prove that the State violated the first prong of Brady.
Second Prong of Brady – Favorable

839. The Court recognizes that the prosecution violates due process when it suppresses evidence in its possession favorable to an accused “‘where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (citing Brady, 373 U.S. at 87). “Impeachment evidence, as well as exculpatory evidence, is included within the scope of the Brady rule.” Wyatt, 23 S.W.3d at 27.

840. The Court finds that any opinion Dr. Dekleva may have had about Applicant’s future dangerousness would not constitute favorable evidence under Brady.

841. Dr. Dekleva states in his affidavit that his testimony regarding Applicant’s future dangerousness would have been “neutral” and “ineffective” because he was unable to personally evaluate and assess Applicant and her mental state. (State’s Writ Exhibit 18). Neutral or “no opinion” evidence on the ultimate issue of Applicant’s future dangerousness does not constitute favorable evidence within the meaning of the Brady due process guarantees. See Bergenthal v. Cady, 466 F.2d 635, 637 (7th Cir. 1972).

842. The Court finds and concludes that Dr. Dekleva’s alleged opinion about the ultimate issue of Applicant’s future dangerousness cannot be classified as either exculpatory evidence (as Applicant claims) nor impeachment evidence and, therefore, it is not subject to disclosure under Brady. (Writ Application at 117).

843. Exculpatory evidence is testimony or evidence that tends to “justify, excuse, or clear the defendant from alleged fault or guilt.” Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). The Court finds and concludes that Dr. Dekleva’s alleged opinion is not exculpatory.

844. Impeachment evidence is that which is offered “to dispute, disparage, deny, or contradict.” Thomas, 841 S.W.2d at 404. In order to be impeached, however, a witness must testify. See McDuffie v. State, 854 S.W.2d 195, 220-21 (Tex. App.—Beaumont 1993, pet. ref’d). Because Dr. Dekleva did not testify, his testimony cannot be impeached.

845. The Court finds that, if the challenged evidence constitutes anything at all, it would be mitigating evidence. The Court recognizes, however, that the United States Supreme Court has never held that the State must disclose mitigating evidence relevant to the punishment phase under Brady v. Maryland. See Brown v. Chaney, 469 U.S. 1090, 1096 (1984) (“Brady and Agurs in terms do not deal with evidence on mitigating circumstances”) (Burger, J., dissenting to the denial of certiorari). In fact, in Kyles v. Whitley, the Supreme Court opined that “the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.” Kyles, 514 U.S. at 438 (emphasis added).

846. The Court recognizes that mitigating evidence is different in character from exculpatory evidence. Mitigating evidence is almost always known to the defendant, which is the situation in Applicant’s case, as demonstrated above.

847. Because the challenged information is neither exculpatory or impeachment evidence, the Court concludes that it is not favorable under the dictates of Brady.

848. Thus, the Court finds that Applicant has failed to prove that the State violated the second prong of Brady, and the Court concludes that the State did not violate the second prong of Brady.

Third Prong of Brady - Materiality

Applicant asserts that the State’s failure to disclose Dekleva’s alleged opinion on Applicant’s propensity for future dangerousness was material because “no psychiatric evidence on this question was offered either by the State or by Defense Counsel.” (Application at 112).

849. The Court recognizes that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. A “reasonable probability” of a different result is shown when the non-disclosure “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the jury verdict.” Kyles v. Whitley, 514 U.S. at 437.

850. The Court adopts its previous findings and finds that Dr. Dekleva never offered the prosecution an opinion on the ultimate issue of Applicant’s future dangerousness; and therefore, nothing was suppressed that would have put the whole case in such a different light as to undermine confidence in the verdict.

851. Additionally, as Dr. Dekleva states in his affidavit, any testimony by him regarding Applicant’s future dangerousness would have been “neutral” and “ineffective” because he was unable to personally evaluate and assess Applicant and her mental state. (State’s Writ Exhibit at 18). Neutral or no-opinion evidence on the ultimate issue of Applicant’s future dangerousness does not constitute favorable evidence within the meaning of the Brady due process guarantees, Bergenthal, 466 F.2d at 637, and therefore it does not constitute material evidence. See Andrews v. Collins, 21 F.3d at 626; Dalbosco v. State, 960 S.W.2d at 903.

852. The Court finds that, to the extent Applicant argues that the State should have revealed Dr. Dekleva’s potentially mitigating opinion, Applicant has failed to prove that this information would have been material. Specifically, Applicant fails to assert, offer evidence, or prove that, if defense counsel had known the challenged information, they would have conducted the punishment phase any differently, or that, Dr. Dekleva’s potentially mitigating opinion undermines confidence in the jury’s verdict. Instead, Applicant merely argues that the challenged information was “clearly material as no psychiatric evidence on this question was offered either by the State or by Defense Counsel.” (Application at 118).

853. The Court finds that if the State had told the defense about Dekleva’s allegedly potentially mitigating opinion, the only way the defense could have gotten that information in front of the jury would have been to call Dr. Dekleva as a witness.

854. Applicant fails to assert or prove that Dr. Dekleva’s testimony would have been beneficial to her overall on the issue of future dangerousness.

855. The Court finds that, not only does the challenged information not undermine confidence in the jury’s verdict, but it would have been potentially detrimental to Applicant’s case for the defense to have called Dr. Dekleva to testify on future dangerousness.

856. Furthermore, the Court finds that Applicant has failed to prove that any risk by the defense of calling Dr. Dekleva would have been outweighed by any benefit. The defense called two psychiatrists on Applicant’s behalf in the guilt phase, who proved to be unpersuasive. Obviously, the jury did not give weight to their expert opinions regarding Applicant’s innocence of these crimes, and therefore, it is questionable whether the jury would have been influenced by any additional psychiatric testimony.

857. The Court recognizes that punishment issues in capital cases “are often subjective and call for prediction of future events rather than an assessment of events that have already occurred, e.g., future dangerousness.” State v. Dudley, 992 S.W.2d 565, 567 (Tex. App.—Texarkana 1999, no pet.); see Wardrip v. State, 56 S.W.3d 588, 590 (Tex. Crim. App. 2001) (“‘[F]uture dangerousness is, in essence, an issue of prediction,’ as opposed to ‘an issue of historical fact.’”).

858. Moreover, the Court acknowledges that, because Dr. Dekleva did not meet with Applicant, and because the jury sat through an entire trial in which they heard exhaustive testimony about Applicant, the jury actually had more background information on Applicant than Dr. Dekleva with which to make a future dangerousness prediction.

859. The Court finds that Applicant has failed to prove that the jurors would have been swayed in their decision if Dr. Dekleva had testified.

860. The Court finds, and the record reveals, that the defense specifically set out for the jury all the arguments for finding that Applicant would not be a future danger. (RR49:5703-04).

861. Thus, the Court finds that the jury was well aware of both the aggravating and mitigating factors in this case, even without any psychiatric testimony on future dangerousness. The Court further finds that Applicant fails to prove that any testimony by Dr. Dekleva regarding Applicant’s lack of prior violence would have overcome the gruesome nature of this crime.

862. The Court recognizes that, although a jury is permitted to consider a variety of factors when determining whether a defendant will pose a continuing threat to society, “the circumstances of the offense ‘can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.’” Wardrip, 56 S.W.3d at 594 (citing Wilson v. State, 7 S.W.3d 136, 142 (Tex. Crim. App. 1999)); see Jasper v. State, 61 S.W.3d 413, 418 (Tex. Crim. App. 2001) (“A jury may infer future dangerousness from the brutality and depravity of the crime committed by a criminal defendant”).

863. The Court finds that Applicant has failed to prove that the non-disclosure of Dekleva’s alleged ultimate opinion on Applicant’s propensity for future dangerousness could reasonably be taken to put the whole case in such a different light as to undermine confidence in the jury verdict.

864. Similarly, the Court concludes that the non-disclosure of Dekleva’s alleged ultimate opinion on Applicant’s propensity for future dangerousness did not constitute material evidence for the purposes of Brady v. Maryland.

865. The Court finds that Applicant has failed to prove that the State violated the third prong of Brady v. Maryland by failing to disclose to the defense Dekleva’s alleged ultimate opinion on Applicant’s propensity for future dangerousness. The Court adopts its previous findings and finds that Dr. Dekleva never offered the prosecution an opinion on the ultimate issue of Applicant’s future dangerousness.

866. Similarly, the Court concludes that the State did not violate the third prong of Brady v. Maryland.

Conclusion

867. The Court has previously concluded that the State did not knowingly suppress any evidence favorable to Applicant in connection with the testimony of Brantley or Linch or the opinion of Dr. Dekleva, and therefore, the Court finds that there is no suppressed evidence to consider collectively for purposes of materiality under Brady v. Maryland.

868. In the interests of justice, however, the Court has considered all the evidence Applicant claims the State failed to disclose, and the Court finds that Applicant has failed to prove by a preponderance of the evidence that the net effect of the challenged evidence would have put the whole case in such a different light as to undermine confidence in the verdict. See Kyles v. Whitley, 514 U.S. 436 & n.10 (“We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion”).

869. The Court concludes that the State did not violate the dictates of Brady v. Maryland.

870. This Court recommends the denial of relief in this sixth ground for review.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF VII

871. Applicant claims in Ground for Relief VII that the State violated her Due Process rights because it failed to correct “false testimony” by Charles Linch. (Application at 113-16).

872. The Court finds that Linch testified that, when he examined the knives recovered from the Routiers’ kitchen, some of the knives had already been fingerprinted. (RR.37: 3309). Linch also testified that the knife from which he recovered particles consistent with debris from the window screen had not been fingerprinted. (RR.37: 3039-40).

873. Applicant has attached an Affidavit of Charles Linch in which Linch states that all of the knives in the knife block and the knife block had been fingerprinted prior to his testing of them. (Applicant’s Writ Exhibit 9 7).

874. The Court notes that a habeas applicant bears the burden to allege and prove by a preponderance of the evidence facts which, if true, entitle her to relief. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998).

875. Linch’s Affidavit states in pertinent part:

At the time I received the butcher block and knives at the SWIFS Laboratory, both the butcher block itself and all of the knives in it had been dusted for fingerprints. This includes a serrated bread knife which I later designated as “Knife #4.” This knife was located on the left end of the bottom row of knives in the butcher block. (Applicant’s Writ Exhibit 9 at 7).

876. The Court finds that Linch’s Affidavit does not set out whether Linch reviewed his trial testimony or notes prior to making the affidavit. (Applicant’s Writ Exhibit 9).

877. The Court finds that Linch’s Affidavit does not set out whether and/or with whom he spoke about his testing, the trial, or the post-trial litigation prior to making the affidavit. (Applicant’s Writ Exhibit 9).

878. The Court finds that Linch’s Affidavit was executed on July 11, 2002, over five years after he actually conducted the tests in question. (Applicant’s Writ Exhibit 9).

879. The Court finds that Linch does not state in his Affidavit that his trial testimony was false. (Applicant’s Writ Exhibit 9).

880. The Court finds that the trial record does not demonstrate Charles Hamilton, the Rowlett Police Officer that processed the crime scene for fingerprints, attempted to process the knives or the knife block for fingerprints. (RR.34: 1979-2096; 2016-17; 2078-79).

881. The Court finds that the State attached an evidence receipt to its Response demonstrating that the knife block and 8 knives were collected by Officer Mayne on June 6, 1996 and stored in the Rowlett Police Department property room. (State’s Writ Exhibit 21).

882. The Court finds that the State attached an Affidavit from Lt. David Nabors, a certified Senior Crime Scene Analyst who participated in the investigation. Nabors states in his affidavit that the knife block and knives had not been processed for fingerprints when Officer Mayne collected them. (State’s Writ Exhibit 3).

883. The Court finds that the State attached an evidence receipt to its Response showing that the knife block and knives were released to Detective Jimmy Patterson on June 8, 1996, and that he delivered it to Chalres Linch the same day at 2:35 p.m. (State’s Writ Exhibit 21).

884. The Court finds that the State attached records of SWIFS showing that Linch received the knife block and knives from Detective Patterson on June 8, 1996, at 2:31 p.m. (State’s Writ Exhibit 22).

885. The Court finds that the State attached the report of Roger Smith, a forensic document examiner and latent print examiner at SWIFS, demonstrating that he fingerprinted the bread knife—the knife #4 Linch from which Linch recovered the window screen fragments—from the knife block and developed no comparable latent prints on June 11, 1996. (State’s Writ Exhibit 23).

886. The Court finds that Smith’s report does not reflect that he processed the knife block itself, only six of the knives. (State’s Writ Exhibit 23).

887. The Court finds that the State attached a Dallas Sheriff’s Office evidence form showing that Katherine Long delivered the knife block and knives to the Physical Evidence Section, on June 12, 1996, for fingerprint testing with an argon laser. (State’s Writ Exhibit 24).

888. The Court finds that the Sheriff’s records contain a notation by Charles Linch regarding the presence of screen residue on knife #4. (State’s Writ Exhibit 24).

889. The Court finds that Linch’s Affidavit does not state the date and time he processed the knives and discovered the screen fragments on knife #4, the bread knife. (Applicant’s Writ Exhibit 9).

890. The Court finds that the records made at the time of the investigation are more likely to be correct than Linch’s conclusory recollections recorded five years after the fact.

891. The Court finds that the narrow window of time between the receipt of the knives and SWIFS and the documentation of Linch’s finding, the evidence that the Rowlett Police Department did not print the knives or knife block, and the inconsistency between Linch’s Affidavit and the report of the fingerprint examiner cast doubt on Linch’s Affidavit. (State’s Writ Exhibit 21; State’s Writ Exhibit 22; State’s Writ Exhibit 23; State’s Writ Exhibit 24).

892. The Court finds that Linch tested the knives prior to Smith printing knife #4.

893. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Linch’s trial testimony regarding his testing of the knives was false.

894. The Court finds that Applicant relies solely upon Linch’s Affidavit to support her claim that the prosecution knew Linch gave false testimony. (Application at 113-16).

895. The Court finds that Linch’s Affidavit does not state that he gave false testimony or that he informed the prosecutors at any time that he gave false testimony. (Applicant’s Writ Exhibit 9).

896. The Court finds that Applicant relies on Linch’s employment at SWIFS to argue that the prosecutor had imputed knowledge of his alleged false testimony. (Application at 114).

897. The Court finds that SWIFS is not a law enforcement agency, but rather an independent entity that provides services to any person who pays for the service. See Caw v. State, 851 S.W.2d 322, 324 (Tex. App.–El Paso), pet. ref’d, 864 S.W.2d 546 (Tex. Crim. App. 1993)(holding that SWIFS is not a law enforcement agency); see also Durham v. State, 956 S.W.2d 62, 63-65 (Tex. App.–Tyler 1997, pet. ref’d)(noting that county crime lab personnel were not law enforcement personnel); see generally New York v. Washington, 654 N.E.2d 967, 969 (N.Y. 1995)(holding that medical examiner’s office was not a law enforcement agency and that the prosecutor’s office did not have “possession or control” over documents maintained by the medical examiner).

898. The Court notes that Applicant relies upon Martinez v. Wainwright, 621 F.2d 184, 188 (5th Cir. 1989) to support her argument that Linch’s knowledge would be imputed to the prosecutors.

899. The Court finds and concludes that Martinez is distinguishable from the instant case because the defense in that case requested discovery of a murder victim’s rap sheet, the prosecutor emphatically and consistently denied any knowledge of the rap sheet, and the prosecutor assured the trial court that the medical examiner did not possess, even though it was “standard practice” for medical examiner to possess that type of information. Id. at 185-87.

900. The Court finds that case law and the State’s Writ evidence demonstrate that SWIFS is independent of the Rowlett Police Department and the Dallas County District Attorney’s Office, and that the personal knowledge of a SWIFS analyst is not imputable to the prosecutor.

901. The Court finds that Applicant’s habeas evidence does not demonstrate Linch’s testimony was false, or, in the alternative, that he knew his testimony was false (if it was false) at the time he testified. (Applicant’s Writ Exhibit 9).

902. The Court finds that Applicant’s writ evidence does not exclude the possibility that, if Linch’s testimony was incorrect, he merely misspoke or made a mistake.

903. The Court finds that Applicant has failed to prove by a preponderance of the evidence that Linch gave false testimony, or that, if it was false, that he or the prosecutors knew it.

904. The Court notes that, in order to obtain relief for this claim, Applicant must prove that the prosecutor knowingly used perjured testimony, and that the testimony was material. Ex parte Castellano, 863 S.W.2d 476, 479-80, 485 (Tex. Crim. App. 1993).

905. The Court finds that the change between Linch’s trial testimony and his Affidavit is only relevant to Applicant’s claim at trial (and in this proceeding) that the fibers Linch recovered from the knife were from Charles Hamilton’s fingerprint brush rather than from the window screen in the Routier’s garage. (See Applicant’s Writ Exhibit 10 10; Application at 21).

906. The Court finds that Linch testified at trial that the fibers from Hamilton’s fingerprint brush were not consistent with the fibers found on the knife, because they were of 25% greater diameter. (RR.37: 3038-39; 3045-56).

907. The Court finds that the trial record and the State’s habeas evidence demonstrate that the fingerprint brush in question never touched the knife block or knives. (State’s Writ Exhibit 3; RR.34: 1979-2096; 2016-17; 2078-79).

908. The Court finds that Linch’s testimony regarding the window screen fragments was mentioned on only two pages of the prosecutors’ seventy-four -page closing arguments. (RR.46: 5207-49; 5321-53; 5229; 5335).

909. The Court finds that Linch’s testimony regarding the window screen was only one of many pieces of testimony and evidence demonstrating that the crime scene was staged.

910. The Court adopts is previous findings regarding the materiality of Linch’s testimony.

911. The Court finds that Applicant has failed to prove by a preponderance of the evidence that, if Linch’s testimony was false in this one regard, that it was material to the case.

912. The Court concludes that if Linch’s testimony was false in this one regard, it was not material.

913. The Court recommends that relief be denied as to Applicant’s Ground for relief VII.

FINDINGS AND CONCLUSIONS PERTINENT TO GROUND FOR RELIEF IX

914. In Ground for Relief IX, Applicant claims that the Texas death penalty statute violates the Fifth Amendment of the United States Constitution and Article I, §19 of the Texas Constitution because of an undue risk that innocent people might be sentenced to death or executed. (Application at 118-22).

915. The Court is aware that a writ of habeas corpus cannot be invoked for error that is predicated solely on a violation of the Texas Constitution. Ex parte Dutchover, 779 S.W.2d 76, 77 (Tex. Crim. App. 1989).

916. Thus, the Court concludes that, to the extent this claim is grounded on state law, it is not cognizable on habeas review and will not be addressed.

917. Alternatively, Applicant does not provide any separate argument or authority of how the protections offered by the Texas Constitution differ from the protections guaranteed by the United States Constitution.

918. The Court finds that Applicant does no more than cite the Texas Constitution in support of any state law claim. (Application at 118).

919. The Court of Criminal Appeals has repeatedly held that to preserve an argument that the Texas Constitution sets a different/higher standard than the United States Constitution, the proponent must present the state constitutional point as a separate issue from the federal constitutional point and must argue the state constitutional issue separately, presenting separate argument and authority. Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993) (“We will not make appellant’s state constitutional claim for him”); Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex. Crim. App. 1991).

920. Accordingly, the Court finds that Applicant has failed to properly present any claim under the Texas Constitution and concludes that any state claim is procedurally defaulted.

921. The Court finds that Applicant’s federal constitutional claim is predicated on the opinion in United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002).

922. The Court finds that the judgment and opinion of the federal district court Applicant relies upon was reversed on appeal, and that the Supreme Court denied review of that decision. United States v. Quinones, 313 F.3d 49 (2d Cir. 2002), cert. denied, 157 L.Ed.2d 702 (2003).

923. The Court notes that, in reversing the district court in Quinones, the Second Circuit stated that the possibility innocent persons might be executed “has been central to the centuries-old debate over both the wisdom and constitutionality of capital punishment, and binding precedents of the Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent.” Quinones, 313 F.3d at 63.

924. The Court finds that Applicant has produced no evidence in support of her claim that the Texas death penalty system creates an undue risk that innocent people will be sentenced to death or executed. (Application at 118-22).

925. The Court finds that Applicant has failed to prove by a preponderance of the evidence that the Texas death penalty system creates an undue risk that innocent persons will be sentenced to death or executed.

926. The Court concludes that Applicant has failed to demonstrate that the Texas death penalty system violates her Fifth Amendment rights.

927. The Court recommends that Applicant’s Ground for Relief IX be denied.

ORDER

The Court hereby makes the above findings of fact and conclusions of law in Ex parte Darlie Lynn Routier.

THE CLERK IS HEREBY ORDERED to prepare a transcript of all papers in cause number W96-39973-J(A) and transmit same to the Court of Criminal Appeals as provided by Article 11.071 of the Texas Code of Criminal Procedure. The transcript shall include certified copies of the following documents:

  1. Applicant’s “First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071” filed in cause number W96-39973-J(A), including any exhibits, “Reply to Respondent’s Original Answer to Applicant’s Article 11.071 Application for Writ of Habeas Corpus,” “Second Renewed Request for Access to State’s Evidence,” “Renewed Motion for Hearing,” “Motion for Reconsideration,” and “Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing,”
  2. The “Respondent’s Original Answer to Applicant’s Article 11.071 Application for Writ of Habeas Corpus” filed in cause number W96-39973-J(A), including any exhibits;
  3. Both parties’ proposed findings of fact and conclusions of law;
  4. This Court’s findings of fact and conclusions of law, and order;
  5. This Court’s “Order Setting Deadlines For Filing Proposed Findings and Conclusions” dated February 2, 2004
  6. The indictment, judgment, sentence, docket sheet, and appellate record in cause number W96-39973-J(A) unless they have been previously forwarded to the Court of Criminal Appeals.

THE CLERK IS FURTHER ORDERED to send a copy of this Court's findings of fact and conclusions of law, including its order, to Applicant’s counsel, Richard Smith, 750 N. St. Paul St., Ste. 1400, Dallas, Texas 75201, Richard Burr, 906 E. Jackson, Hugo, OK 70743, and to counsel for the State.

SIGNED this ___ day of August, 2004.

____________________________________________
Robert Francis, Judge Presiding


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