                                          '.···
       RODNEY REED                          )

                                   vs.      j

       STATE OF TEXAS                      )      2151 JUDICIAL DISTRICT

                                           )      OF BASTROP COUNTY, TEXAS


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                                 NOTICE OF APPEAL
                                                                  at the time of imaging.


                                                                              FILED IN
                                                                    COURT OF CRIMINALAPPEALS
To The Honorable District Judge:
                                                                             JAN 16 2015:
       On January 6, 2015 and under Rule 25.2 of the Texas Rules of Appellate
                                             .                    AbelAcosta             \.i1~r1<
Procedure, Rodney Reed, Defendant and Movant m the above styled case, hks thts'

written notice with the clerk of this court that defendant intends to appeal to the Texas

Court of Criminal Appeals as provided under Article 64.05 of the Code of Criminal

Procedure. This appeal is from the written order denying Reed's Motion for DNA

Testing signed on December 12, 2014. A copy of this Order is attached as Exhibit 1.


                                                  Respectfully submitted,



                                                  Bryce Benjet
                                                  State Bar No. 24006829
                                                  THE INNOCENCE PROJECT
                                                       l                 .

                                                  40 Worth St.·
                                                  New York, NY 10013
                                                  (212) 364-5340
                                                  (212) 364-5341 fax




                                                                               JAN 1 2 ZG~S
                                        AITORNEYS FOR RODNEY REED



                           CERTIFICATE OF SERVICE

       On the 6th day of January 2015, a copy of the foregoing motion was served upon
the Bastrop County District Attorney by U.S. Mail or hand delivery.


                                                   ~-=
Exhibit 1
STATE OF TEXAS                             §
                                           §
v.                                         §                                       OF
                                           §
RODNEY REED                                §             BASTROP COUNTY, TEXAS


              FINDINGS OF FACT AND CONCLUSIONS OF LAW
      After considering the record in this case, and after making credibility

determinations following a live hearing in this Chapte1· 64 proceeding, the Court

enters the following findings of fact and conclusions of law:

Relevant Procedural History

1.    The State, on Apt·il8, 2014, filed a motion to set an execution date for Movant,
      Rodney Reed. The State requested a date of November 19, 2014.

2.    Movant, on AprilS, 2014, filed a motion :to recuse the ele<--ted judge overseeing
      his case, Judge Towslee-Corbett.

3.    Movant, on April 14, 2014, opposed setting of an execution date. Movant
      requested indefinite delay of his execution to conduct DNA t.esting, to file a
      subsequent state habeas application, and to file a scientific-evidence
      application.                            ·

4.    On May 23, 2014, Judge Towslee-Corbett issued an order of voluntary recusal.

5.    On May 28, 2014, Judge Underwood, the presiding judge of the Second
      Administrative Judicial Region, assigned the undersigned judge to preside
      over the case.

6.    On June 18, 2014, the Court set a hearing on the State's motion to set an
      execution date.

7.    On June 17, 2014, the Court re-set the hea1·ing on the State's motion to set an
      execution date at the request of the parties.

8.
9.




10.   At the July 14, 2014, hearing, the Court signed an order permitting agreed-to
      DNA testing. The items to be tested included four specified hairs and various
      swabs taken from the victim's body.

11.   At July 14, 2014, hearing, Movant requested indefinite delay of his execution
      to conduct DNA teRting.

12.   The State timely responded on September 12, 2014. The State attached several
      exhibits regarding the existence, custody, and present condition of evidence
      collected in connection with the investigation of Movant's offense.

13.   Movant filed a letter requesting a hearing on the Chapter 64 motion on October
      14, 2014.

14.   The State filed a letter opposing a hea1·ing on the Chapter 64 motion on October
      22, 2014. The State attached an exhibit reflecting an amended inventory
      regarding fingerprint evidence.

15.   Movant filed a letter again requesting a hearing on the Chapter 64 motion on
      October 23, 2014. Movant attached, for the first time ever, an affidavit from a
      DNA expert.

16.   On October 27, 2014, the Court set a hearing on Movant's Chapter 64 motion.

17.   On November 18, 2014, the State moved to modify Movant's execution date.
      The State requested an amended date of March 5, 2015.

18.   Movant filed a reply to the State's Chapter 64 response on November 24, 2014.
                                               a
      Movant attached, for the first time ever, personal affidavit.

19.   Movant filed a motion to withdraw his execution date on Novembe1· 25, 2014,
      immediately before the hearing on his Chapter 64 motion. Movant requested
      indefinite delay of his execution to conduct DNA testing or to appeal the denial
      of DNA testing.

20.   The Court held a live hearing on the Chapter 64 motion on November 25, 2014.
      Movant called crime-scene and forensics expert, John Paolucci, and DNA
      expert, Deanna Lankfo1·d. The State called Gerald Clough, an investigator
      with the Office of the Attorney General of Texas, Lisa Tanner, the special
      prosecutor on Movant's case, and Etta Wiley, a deputy district clerk for Ba$trop

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      Countv. M ovant and t h e State ·also mtro      .      duce d various
                                                                         .     ex h'~·&:t~._~"\
                                                                                   ·l!ut~W' ~J..ter :
                                                                                                     \
                . t h e record.m t h.1s case, an d a ft er rna k'mg ere d'b'li
      cons1.d·enng                                                                 ·~I
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      from the hearing, the Court denied Movant's Chapter 64 motion. \~,h:                       (}~/
                                                                                       ··:::-·a co~~.·
21.   At the November 25, 2014, hearing, the Court granted the State's ~;;ti~~ to
      modify Movant's execution date. The Court entered an amended execution
      order setting Movant's execution for March 5, 2015.

22.   On December 2, 2014, Movant requested a subpoena to obtain a personal
      reference sample for purposes of the agreed-to DNA testing ordered on July 14,
      2014. A subpoena issued on December 3, 2014.

Findings of Fact and Conclusions of Law

23.   Reed has failed to prove by a preponderance of the evidence that his Chapter
      64 motion is not made to unreasonably delay the execution of sentence of
      administration of justice. This is explained below:

      23a.   Movant, to date, has not provided the Court with any information
             regarding time estimates for the extensive DNA testing he seeks. This
             alone, the Court believes, is sufficient to show that Movant has failed in
             his burden to show that his request is not made to unreasonably delay
             his execution.

      23b.   Movant filed his Chapter 64 motion on the day this Court initially set
             Movant's execution date. This timing, the Court believes, was not
             coincidental, but a designed tactic to delay the setting of Movant's
             execution date. Movant's repeated desire to indefinitely delay his
             execution, instead ofproposing concrete time lines, furthe1· supports the
             Court's belief that his Chapter 64 motion was filed for purposes of
             unreasonable delay.

      23c.   The Court notes that Movant's Chapter 64 motion was filed thirteen
             years after Chapter 64's enactment and approximately three years after
             Chapter 64's most recent amendment. The Court finds that the1·e was
             no legal impediment to filing a Chapter 64 motion during this entire
             period. The Court also notes that Movant has been continuously
             represented by counsel during his postconviction proceedings, as
             indicated by the multiple state and federal opinions generated during
             these proceedings. The lack of filing during this period, which was
             without factual or legal impediment, leads the Court to believe that the
             present Chapte1· 64 motion is. filed for purposeg of delay.

      23d.   As pled in Movant's Chapter 64 motion, Movant's first informal request
             for DNA testing occurred three days after the United States Court of
             Appeals affirmed the denial of his federal petition for writ of habeas

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       corpus. This timing is important because, as demonstra:t~              t,hEf J
       State's r.esponse, there is little chan~~ for relief following affi·~~ JJ!~~:
       the derual of a federal habeas pet1tlon. Thus, the Court fina'B1drf.itft.··
       Movant only sought DNA testing after his other efforts at relief p"rov~d
       unsuccessful. This diminishes Movant's case that his present Chapter
       64 motion was not filed for purposes.of unreasonable delay.

23e.   As demonstrated by the State's exhibits, Movant's att.ot·ney-Bryce
       Benjet-is counsel of record for Larry Swearingen, another Texas death
       row inmate. Mr. Renjet filed a Chapter 64 motion for Swearingen
       approximately a year and a halfhefm·e Movant's Chapter 64 motion. Mr.
       Benjet filed another Chapter 64 motion for Swearingen approximately
       two months before Movant's Chapter 64 motion. Movant's motion is
       substantially similar to Swearingen's initial Chapter 64 motion and
       attached to Swearingen's initial Chapter 64 motion is a personal
       affidavit from Swearingen and an affidavit from a DNA expert.
       Swearingen's second Chapter 64 motion has attached to it another
       affidavit from a DNA expert. Thus, the Court concludes that Movant,
       through his counsel, Mr. Benjet, had the legal and factual knowledge to
       file Movant's present Chapter 64 motion more than a year before it was
       filed. Movant's delayed presentation of a personal affidavit and an
       expert affidavit, the Court finds, is a purposeful attempt at delay.

23f.   Movant has been cited for abuse of the writ on five separate occasions
       by the Court of Criminal Appeals. As demonstrated by the State':;
       evidence, the United States District Court fm· the Western District of
       Texas ruled that Movant had untimely sought forensic testing and was
       dilatory in submitting an affidavit. The United States Court of Appeals
       for the Fifth Circuit also found that Movant submitted evidence in an
       untimely fashion. Acc01·dingly, the Court finds that Movant has
       engaged in a dilatory and piecemeal litigation strategy th1·oughout his
       postconviction proceedings and the Court believes this Chapter 64
       motion is a continuation of such behavior.

23g.   Movant has thrice asked the Court to indefinitely postpone his execution
       date--once in opposing the State's motion to set an execution date, once
       at the hearing to set an execution date, and once at the heat·ing on this
       Chapte1· 64 motion via a motion to withdraw the date. The Court finds
       that Movant's request for, essentially, indefinite stays works against
       him in proving that he i~ not attempting to unreasonably delay his
       execution.

23h.   Movant, at the live evidentiary hearing on the Chapte1· 64 motion, asked
       for DNA testing on a substantial amount of eviden<.."e that he had not
       mentioned in his Chaptet· 64 motion. Consequently, Movant. has not

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       individually briefed or explained the type of testing that he ii'~.
       performed on these items. The Court finds this dilatory reqti-~S;        ./
                                                                                            'J/
       another example of Movant's last-minute amendments to his Cnllpllt'f.~··
       64 pleadings, which this Court considers to be an at-tempt to
       unreasonably delay his execution.

23i.   The Court rejects Movant's rationale for failing to request and brief
       those items of evidence raised for the first time at the hearing on the
       Chapter 64 motion; specifically, that Movant did not know of the
       evidence's existence until the State attached inventories to its Chapter
       64 response. Movant has failed to demonstrate that he requested such
       inventories from the State prior to the State'8 Chapter 64 1·esponse or
       that the State refused him such inventories upon request. Further, one
       of the items of evidence that Movant requested to be tested fo1· the first
       time at the Chapter 64 hearing-beer cans-.has been heavily litigated
       during the course of Movant's postconviction proceedings.           It is
       inconceivable to the Court that Movant did not know that such item
       existed. Moreover, Movant requested DNA testing of items of evidence
       in his Chapter 64 motion-a condom, a knife, and a shirt piece-that
       were not introduced at trial and were, therefore, "unknown" to Movant
       until the State attached an inventory to its response. Stated another
       way, Movant requested testing of some items he did not "know" were in
       the possession of the St.ate o1· District Clerk. The Court finds Movant's
       unsupported excuse to be further evidence of his attempts to
       unreasonably delay his execution.

23j.   As demonstrated by the State's evidence, Movant is in possession of
       extracts from multiple pieces of evidence he seeks testing on and which
       he could test independently of a Chapter 64 motion. This includes the
       beer cans, various swabs from the victim's body, stains from the victim's
       pants and back brace, and a condom. Movant's request to test these
       items via Chapter 64 when he could conduct the tesiing himself.
       especially given his offer to pay for DNA testing, leads the Court to
       believe that his request for DNA testing is for the purpose of
       unreasonable delay.

23k.   The Court finds that Movant has requested DNA testing of items of
       evidence that the State has already agreed to test. This includes various
       hai1·s and swabs from the victim's body. The Court finds that this
       request for redundant testing is, again, an attempt to unreasonably
       delay the execution of sentence.

231.   Movant has repeatedly stated, in pleadings and in court, that he plans
       to soon file postconviction motions for relief pursuant to Articles 11.071
       and 11.073 of the Texas Code of Criminal Procedure. To date, despite

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             Movant's promise of diligence, he has not fLied either ple~~- ·           · fie~/
             Court views this procrastination as another example of an ··ti-t.,.. rn,n
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             unreasonably delay his execution.                             •• ••~.~~~····

      23m. Movant waited more than four months to obtain a subpoena for a
           reference sample from himself for purposes of the agreed-to DNA testing
           that this Court ordered in July. This delay in requesting a reference
           sample demonstrates, the Court believes, unreasonable delay and
           Movant's tardy actions in his agreed-to DNA testing makes this Court
           believe he could not complete his requested DNA testing before the
           present execution date.

24.   The Court finds that Movant has failed to prove by a preponderance of the
      evidence that he would not have been convicted but for exculpatory results
      from DNA testing. This is explained below:

      24a. The State's case on guilt-innocence was strong-Movant's DNA was
           found both on and inside the victim, which demonstrated presence; the
           intactness ofMovant's sperm inside the victim's vaginal cavity, the peri-
           mortem injuries to the victim's anus, Movant's saliva on the victim's
           breasts after she took a shower the evening before her murder, and the
           small amount of semen in the victim's panties demonstrated sexual
           assault contemporaneous with murder; the peri-mortem injury to the
           victim's anus and the obvious signs of sexual assault-the victim's
           bunched up panties, a broken pants zipper, partially unclothed, bruises
           to the arms, torso, and head of the victim-demonstrated lack of
           consent; and additional . evidence indicated that Movant frequented the
           area of the victim's disappearance at the time the victim disappeared
           and the Movant matched the height of someone who would have fit the
           adjusted seat in the victim's truck.

      24b.   Many of the items of evidence Movant seeks to test were already before
             the jury and the jury knew they did not match Movant-their
             exculpatory nature was already before the jury. For example, Movant's
             DNA and forensics expet·t testified that one ofthe hairs Movant seeks to
             test did not match Movant's genetic profile. As another example, a DPS
             forensic scientist testified that none of the hairs collected from the
             victim's body microscopically matched Movant's hair. And, as another
             example, Movant did not match any of the fingerprints collected during
             the course of the investigation. Thus, the jury knew that many of the
             items Movant seeks to test were not from him.

      24c.   Further, the Court finds that none of the evidence Movant seeks to te~t
             was so integral to the State's case that the jut·y would have acquitted
             despite knowing that Movant's DNA was not on the item. Many ofitems

                                                   6
     were in a truck shared with the victim's fiance and
     demonstrated that other people had ridden in the truck.
     would not be surprised to know that foreign DNA was
     originating from the truck. Further. manyofthe items of
     been handled by ungloved individuals, which further undermines the
     value of such "exculpatory'' results before a jury. Ultimately, at best,
     exculpatory results from the items Movant seeks to test would muddy
     the waters, not prove by a preponderance that he would have been
     acquitted.

Accordingly, Movant's Chapter 64 motion is DENIED.

It is so ORDERED.

DONE AND ENTERED this         /   & · day of   ]¥,_,~.,.           '2014.




                              Presiding Judge
                              21st District Court
                              Bastrop County, Texas

                               Sitting by Assignment




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1
        NO.   <{,70}


        THE STATE OF TEXAS VS. RODNEY REED

        21ST DISTRICT COURT

        CHARGE: CAPITAL MURDER

        WITNESS:

        IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

                THE GRAND JURY, for the County of Bastrop, State ofTexas, duly selected, empaneled,
        sworn, charged, and organized as such at the JANUARY Tenn A.D. 1997 ofthe 2ht Judicial
        District Court for the said County, upon their oaths present in and to said court at said term that
        RODNEY REED hereinafter styled Defendant, and before the presentment of this indictment, in
        the County and State aforesaid, on or about the 23rd day of April, A.D. 1996, did then and there
        intentionally cause the death of an individual, namely Stacey Stites, by strangulation, and the
        defendant was then and there in the course of committing and attempting to commit the offense of
        aggravated sexual assault of Stacey Stites;

               Count Two

        And the grand jurors aforesaid, upon their oaths aforesaid, do funher present in and to said coun
        that RODNEY REED on or about the 23rd day of April, A.D. 1996, did then and there
        intentionally cause the death of an individual, namely Stacey Stites, by strangulation, and the
        defendant was then and there in the course of committing and attempting to commit the offense of
        kidnapping of Stacey Stites~




        AGAINST THE PEACE AND DIGNITY OF THE STATE.



                                                            ~2~
                                                            Foreman Grand Jury




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