                           WRIT NO. W91-22107-Q(A)

EX PARTE                                  §             IN THE 204th JUDICIAL
                                                                      RECEIVED
                                                              COURT OF CRIMINAL APPEALS
                                                                     1/14/2015
                                          §                     ABEL ACOSTA,
                                                            DISTRICT   COURT   CLERK


JAMES BERKELEY HARBIN II                  §         DALLAS COUNTY, TEXAS

                STATE’S OBJECTIONS TO TRIAL COURT’S
             FINDINGS OF FACT, CONCLUSIONS OF LAW AND
                RECOMMENDATION OF TRIAL COURT ON
              APPLICATION FOR WRIT OF HABEAS CORPUS

        Comes now the State of Texas and makes the following objections to the

Court‘s findings of fact and conclusions of law, which were signed by the Court on

December 16, 2014:

                                         I.

                                    SUMMARY

        Applicant filed the instant habeas application raising the following grounds

for relief: (1) ineffective assistance of counsel at trial; and (2) Brady violation.

Over the course of nearly a year, multiple hearings were conducted regarding

Applicant‘s claims. On October 31, 2014, Applicant filed proposed findings of

fact and conclusions of law. The State filed proposed findings on December 10,

2014.     (See Exhibit A). On December 16, 2014, the Court entered findings




                                          1
rejecting the State‘s laches argument and recommending that relief be granted on

all of Applicant‘s claims.1

       The State objects to the Court‘s findings of fact and conclusions of law. The

Court‘s findings are not supported by the record. Indeed, many of the findings are

based on pure speculation and are not supported by any evidence.

                                             II.

                              HISTORY OF THE CASE

       Applicant pleaded not guilty to the murder of his father, James Harbin, Sr.

The jury found Applicant guilty and, on April 29, 1991, sentenced him to

confinement for life in the Institutional Division of the Texas Department of

Criminal Justice. Applicant‘s conviction was affirmed by the Fifth District Court

of Appeals on August 6, 1992. See Harbin v. State, No. 05-91-00621-CR (Tex.

App.—Dallas August 6, 1992) (not designated for publication).

       On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus.

Applicant subsequently filed four amended responses.                The Court conducted

evidentiary hearings on February 21, 2014, May 9, 2014, May 29-30, 2014, August

22, 2014, and August 28, 2014. Applicant presented testimony from the following

witnesses: Dr. Randy Price, Matt Fry, Gary Smart, David Dunlevy, Paula Collins,

1
 The State will refer to the Court‘s December 16, 2014 Findings of Fact and Conclusions of Law
as ―FOFCOL.‖

                                              2
Candace Harbin, George Cole, Ginger Cole, and Julie Badii. The State presented

the testimony of Teresa Harry.          The Court issued its ruling on December 16,

2014.2

                                             III.

                   THE STATE’S 12/10/14 PROPOSED
             FINDINGS OF FACT AND CONCLUSIONS OF LAW

       On December 10, 2014, the State filed Proposed Findings of Fact and

Conclusions of Law. In this pleading, the State set forth the facts and argument

supporting its position that Applicant‘s claims are barred by the equitable doctrine

of laches and that, in any event, Applicant failed to prove that trial counsel

rendered ineffective assistance and he failed to prove that the State suppressed

evidence at trial. Those findings and conclusions, including any and all exhibits,

are hereby incorporated in their entirety by reference and are attached as Exhibit

A).

                                             IV.

                                         LACHES

       The State objects to the Court‘s findings that laches should not apply in this

case. (See FOFCOL pp. 20-22).            In fact, this is a classic laches case: there are

dead witnesses, lost or destroyed records, and degraded memories.

2
 The State was not served with a copy of the Court‘s findings. The State learned of the Court‘s
decision on December 29, 2014 when the undersigned searched the Dallas County District
Clerk‘s online records database to see whether any findings had been issued.

                                              3
                                  Pertinent Facts

      On April 29, 1991 Applicant was sentenced to life in prison for the murder

of his father. His conviction was affirmed by the court of appeals on August 6,

1992. His petition for discretionary review was refused by the Court of Criminal

Appeals. Mandate issued on March 8, 1993.

      On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus.

Applicant alleged that he was unable to file his application before 2010 for the

following reasons:

      [A] substantial part of the evidence presented in this writ application
      was not available to Applicant prior to the Fall of 2008. At that time,
      the Dallas County District Attorney‘s Office adopted a policy that
      allowed attorneys representing persons on Applications for Writ of
      Habeas Corpus to review the District Attorney‘s trial files. Much of
      the evidence submitted in support of this writ application only became
      available to Applicant after this policy went into effect. Under Perez,
      this constitutes a justifiable reason for Applicant not filing this
      Application sooner.

(See Applicant‘s Response to State‘s Laches Argument, p. 2).

                                     Argument

      The State objects to the Court‘s findings that laches should not apply in this

case. (See FOFCOL pp. 20-22). In Ex parte Perez, the Court of Criminal Appeals

stated that a court may reject a State‘s laches argument in the following situations:

(1) when the applicant‘s delay is not unreasonable because it was due to a



                                         4
justifiable excuse or excusable neglect; (2) when the State would not be materially

prejudiced as a result of the delay; or (3) when there are compelling reasons for

granting relief, including evidence showing actual innocence or that the applicant

is reasonably likely to prevail on the merits of his claims. See Ex parte Perez, 398

S.W.3d 206, 218 (Tex. Crim. App. 2013).

                     The delay in the filing of Applicant’s writ
                         is unreasonable and unjustified

      The State objects to the Court‘s implicit finding that Applicant‘s delay in

filing his writ (the District Attorney‘s 2008 open file policy) is justified.   (See

FOFCOL pp. 20-22). Applicant has raised two grounds for relief on habeas:

ineffective assistance and Brady violation. Applicant‘s contention that he received

ineffective assistance from trial counsel, Matt Fry, is not based on information

discovered pursuant to the open file policy. Applicant‘s claims regarding Fry

revolve around his argument ―that defense counsel failed to investigate mitigating

evidence and failed to properly and adequately present mitigating evidence to the

jury at the sentencing hearing.‖     (FOFCOL p. 4).       In support of his claim,

Applicant presented testimony and/or affidavits from Dr. Randy Price, his mother

(Ginger Cole), two of his sisters (Julie Badii and Candace Harbin), his aunt (Paula

Collins), and several friends (Daniel Dunlevy, Kyle Pendleton, Sam Pendleton).

He presented a re-print of a 1988 letter from the complainant‘s psychiatrist, Dr.

Daniel Pearson, to the Texas Rehabilitation Commission. (See Memorandum in

                                         5
Support of Application for a Writ of Habeas Corpus, Exhibit 2).                      None of this

evidence came from the District Attorney‘s file.3 Applicant failed to articulate a

legitimate reason for waiting nearly twenty years to complain that Fry was

ineffective.

       Next, Applicant‘s claim regarding the open file policy as it pertains to his

Brady argument is disingenuous. As such, the Court‘s finding that ―Laches does

not apply to this case based on the fact that the evidence discovered in the District

Attorney‘s files was not available to Applicant prior to late 2008,‖ is not supported

by the record. While it may be true that in 2008 the State began opening its files

in post-conviction proceedings, the record does not show that Applicant ever made

any attempt to gain access to the State‘s files prior to the filing of the instant writ in

2010. Indeed, the record does not show that after his conviction became final in

1993 Applicant ever made any attempt to challenge his conviction on any basis

until 2010. The fact that Applicant did not make any attempt to challenge his

conviction for seventeen years demonstrates a clear lack of diligence in asserting

his rights.




3
 The State recognizes that a variation of this letter was found in the State‘s trial file. The State‘s
argument as it relates to this letter is addressed in connection with its arguments regarding
Applicant‘s Brady claims.

                                                  6
       Applicant failed to show that the delay in the filing of his writ was in any

way reasonable. The State objects to any findings to the contrary as they are not

supported by the record.

                         The State is materially prejudiced
                        by Applicant’s delay in filing his writ

       The State objects to the Court‘s finding that it ―rejects any claim that the

state has been prejudiced as required for an application of laches.‖ (FOFCOL p.

21).   During the habeas proceedings, the State urged two distinct reasons for the

application of laches in this case: (1) the delay has prejudiced the State‘s ability to

respond to the allegations contained in the writ and (2) the delay will prejudice the

State in its ability to re-try Applicant should relief be granted.    Importantly, the

Court‘s findings fail to address the State‘s first argument. The Court does address

the State‘s second argument, but those findings are not supported by the record.

       First, the State is materially prejudiced in its ability to respond to and defend

against the allegations contained in Applicant‘s writ. Applicant contends that trial

counsel Matt Fry was ineffective because he failed to investigate and present

evidence at punishment regarding the complainant‘s mental illness. As a threshold

matter, because of Applicant‘s delay, the State is now in the position that it is

unable to admit or deny the extent of the complainant‘s mental illness and whether

his mental illness caused him to become violent. None of the complainant‘s mental

health records were admitted at trial. By the time of the evidentiary hearings in

                                           7
2014, his mental health records had been destroyed and were no longer available.

(WR5:57, 67-68). His psychiatrist, Dr. Pearson, had passed away. And a doctor

who treated him at Willowbrook Hospital, Dr. Ricardo Shack, has no recollection

of treating him. (WRR5:67-68).

       It is undisputed that the complainant suffered from some form of mental

illness.   The dispute regarding the complainant‘s illness concerns the nature and

extent of that mental illness. The only available mental health record is a 1991 re-

print of a 1988 report written to the Texas Rehabilitation Commission,

summarizing the complainant‘s mental health. (DX#11). This letter does not

identify the complainant‘s specific diagnosis.     It merely identifies a series of

symptoms exhibited by the complainant. Given the lack of medical records or

medical testimony, any finding by the Court regarding the complainant‘s diagnoses

or that the complainant‘s mental illness rendered him violent is without basis in the

record and is purely speculative.

       Had Applicant challenged his conviction closer in time to his conviction, the

State may have been able to challenge his allegations with the complainant‘s

medical records and/or testimony from the complainant‘s treating physicians. Had

Applicant challenged his conviction closer in time to his conviction, the State may

have had at least the opportunity to present additional family members‘ testimony




                                         8
regarding the complainant‘s behavior/temperament in the year and a half preceding

his death.

      As to Fry‘s investigation of the complainant‘s mental illness, the State is

again unable to refute Applicant‘s allegations. At the evidentiary hearing, Fry

could not even identify Applicant as his former client, much less describe the

minutiae of his representation. (WRR2:12). To make matters worse, Fry testified

that he was unable to locate his complete file. (WRR2:13). He was only able to

locate a few documents. (WRR2:13-14; DX#2). He had little to no recall of the

necessary details regarding Applicant‘s case. (WRR2:16-17, 19, 20, 21, 22, 23,

27, 28, 29, 33, 34, 36-37, 41). He did not recall every witness contact. (WRR2:19,

28). He did not recall who testified at trial. (WRR2:19-20).     This is no small

wonder as Applicant had been convicted over 20 years before.       Had Applicant

challenged his conviction closer in time to his conviction, Fry may have had a

better recollection of his representation or he may have been able to locate his

complete file.

      The State is also hamstrung in its ability to respond to Applicant‘s Brady

claim. As stated, Fry‘s memory had degraded. He did not recall the nature of any

pre-trial disclosures made by the prosecution. (WRR5:33). Former prosecutor,

Gary Smart, testified at the evidentiary hearing that he recalled some details of

Applicant‘s case, but he did not have a complete recollection of trial or his



                                        9
investigation and preparation of Applicant‘s case.      (WRR3:54-72). He did not

recall where he obtained certain documents that were located within his file.

(WRR3:62-63). He did not recall what he disclosed to the defense prior to trial.

(WRR3:55-56, 62-63). Given Smart‘s degraded memory and the lack of Fry‘s

complete file – which, might have contained notes regarding the State‘s disclosures

or, at the very least, would have shown what Fry had in his possession – the State

is unable to admit or deny Applicant‘s claim that evidence was suppressed.

      Second, the State will suffer material prejudice in the event that Applicant

must be retried.   The Court‘s findings recite that ―The Court is recommending a

new sentencing hearing and the Court finds that the state is fully able to present

their evidence and arguments at a new sentencing hearing.‖ (FOFCOL p.21). The

Court‘s finding is not supported by the record. As argued above, the State is

unable to prove or disprove the extent of the complainant‘s mental illness (and

whether that illness caused him to be violent) on habeas. It stands to reason that if

the State is unable to make this showing on habeas, it is unlikely that it will be able

to do so in the event of a new punishment hearing.        The extraordinary delay in

filing of the instant writ has compromised the reliability of any future trial

proceedings.

      The State has proven material prejudice. The State objects to any findings to

the contrary as they are not supported by the record.



                                          10
                          Applicant is not reasonably likely
                        to prevail on the merits of his claims

       The State objects to the Court‘s finding that Applicant ―is reasonably likely

to prevail on the merits [of his claims].‖ (FOFCOL p. 21).        This is not a case

involving a claim of actual innocence.     It is undisputed that Applicant murdered

his father.   Applicant is merely seeking a new trial on punishment. The basis for

both of his claims for relief revolves around his argument ―that the jury had

inadequate information at the punishment hearing to understand the reason why he

killed his father.‖ (FOFCOL p. 3). A review of the transcript of Applicant‘s trial,

however, shows that the complainant‘s mental illness was before the jury. The

State hereby incorporates the facts and argument set out in the State‘s Proposed

Findings of Fact and Conclusions of Law. (See Exhibit A, pp. 10-11, 13-34, 36-

44).

       Applicant is not reasonably likely to prevail on the merits of his claims. The

State objects to any findings to the contrary as they are not supported by the

record.

                                         V.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

       The State objects to the Court‘s finding that Fry rendered ineffective

assistance.    (FOFCOL pp. 12-20). The State hereby incorporates the facts and




                                         11
argument set out in the State‘s Proposed Findings of Fact and Conclusions of Law.

(See Exhibit A p. 13-34).

                                        VI.

                              BRADY VIOLATION

      The State objects to the Court‘s finding that prosecutor Smart withheld

exculpatory or mitigating evidence.      (FOFCOL pp. 6-12). The State hereby

incorporates the facts and argument set out in the State‘s Proposed Findings of Fact

and Conclusions of Law. (See Exhibit A p. 36-44).

                                        VII.

                                 CONCLUSION

      The State objects to the Court‘s findings and conclusions and

recommendations in this case. In effect, this Court‘s ruling allows an applicant to

sleep on his rights, thereby allowing the passage of time, the destruction of

evidence and the fading of memories. This Court‘s ruling allows the applicant to

then use to his own advantage that lack of evidence to challenge a conviction that

has stood firm for more than two decades.      This Court‘s ruling wholly fails to

consider ―how [Applicant‘s delay in filing his writ] has affected the State, and

whether, in light of the delay, it is fair and just to grant him relief.‖ Perez, 398

S.W.3d at 218-19.




                                        12
      The State respectfully requests that this Court review the State‘s Proposed

Findings of Fact and Conclusions of Law as well as the State‘s objections,

reconsider the Court‘s previous findings, and issue new findings of fact and

conclusions of law recommending that relief be denied on the basis of the equitable

doctrine of laches or, in the alternative, that relief be denied because Applicant

failed to prove trial counsel rendered ineffective assistance and he failed to prove

that the State violated Brady.

                                                   Respectfully submitted,



                                                   _________________________
Susan Hawk                                         Christine Womble
Criminal District Attorney                         Assistant District Attorney
Dallas County, Texas                               State Bar No. 24035991
                                                   Frank Crowley Courts Building
                                                   133 N. Riverfront Blvd., LB-19
                                                   Dallas, Texas 75207-4399
                                                   (214) 653-3625
                                                   (214) 653-3643 (fax)
                                                   CWomble@dallascounty.org

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing document contains 2,803 words, inclusive

of all content.


                                                   __________________________
                                                   Christine Womble



                                        13
                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing document was served on

Applicant‘s counsel, Gary Udashen, via email on January 14, 2015.



                                                 _________________________
                                                 Christine Womble




                                       14
EXHIBIT A
EXHIBIT A
EXHIBIT A




   15
                          WRIT NO. W91-22107-Q(A)

EX PARTE                                 §              IN THE 204th JUDICIAL

                                         §                   DISTRICT COURT

JAMES BERKELEY HARBIN II                 §          DALLAS COUNTY, TEXAS

              STATE’S PROPOSED FINDINGS OF FACT AND
                 CONCLUSIONS OF LAW AND ORDER

      On this, the _____ day of ____________, 2014, came on to be considered

Applicant‘s Application for Writ of Habeas Corpus, the State‘s Responses, and

both parties‘ amended and supplemental responses.         Having considered these

pleadings and the official court records, all exhibits and affidavits offered by both

parties, as well as testimony and evidence offered at the evidentiary hearings

conducted on February 21, 2014, May 9, 2014, May 29-30, 2014, August 22, 2014,

and August 28, 2014, the Court enters the following findings of fact and

conclusions of law.

                                        VIII.

                           HISTORY OF THE CASE

      Applicant pleaded not guilty to murder.      The jury found Applicant guilty

and, on April 29, 1991, sentenced him to confinement for life in the Institutional

Division of the Texas Department of Criminal Justice. Applicant‘s conviction was

affirmed by the Fifth District Court of Appeals on August 6, 1992. See Harbin v.

State, No. 05-91-00621-CR (Tex. App.—Dallas August 6, 1992) (not designated

                                         16
for publication). His petition for discretionary review was refused by the Court of

Criminal Appeals. Mandate issued on March 8, 1993.

       On June 24, 2010, more than nineteen years since the date of Applicant‘s

conviction, Applicant filed his initial application for writ of habeas corpus. The

State timely filed its response. On September 28, 2010, the parties entered into an

agreed discovery order and habeas counsel was permitted to review the district

attorney‘s trial file in the instant cause.

       Applicant subsequently filed four amended responses. The State filed a

supplemental response on May 28, 2014.

       In his Fourth Amended Application for Writ of Habeas Corpus, Applicant

raises the following grounds for relief:

       1. Ineffective assistance of counsel at trial, and
       2. Brady violation.

       This Court conducted multiple evidentiary hearings in connection with the

instant writ. Over the course of these hearings, Applicant presented testimony

from the following witnesses: Dr. Randy Price, Matt Fry, Gary Smart, David

Dunlevy, Paula Collins, Candace Harbin, George Cole, Ginger Cole, and Julie

Badii. The State presented the testimony of Teresa Harry.

                                              IX.

                                GENERAL FINDINGS

   1. The Court takes judicial notice of the entire contents of the Court‘s file in

                                              17
       Cause No. F91-22107.

    2. The Court takes judicial notice of all three volumes of the reporter‘s record
       of the trial, which was conducted in April 1991 in the aforementioned cause
                4
       number. Citations to this record will be ―RR-.‖

    3. The Court takes judicial notice of the entire contents of the Court‘s writ file
       in Cause No. W91-22107-Q(A).

    4. This Court takes judicial notice of all eight volumes of the reporter‘s record
       of the evidentiary hearings conducted on the instant writ. Citations to this
       record will be ―WRR-.‖


                                               X.

                                          LACHES

       Applicant‘s claims are barred by the doctrine of laches. Applicant waited

more than nineteen years since his conviction to file the instant Application for

Writ of Habeas Corpus. This nearly twenty-year delay has prejudiced the State‘s

ability to respond to and refute the allegations raised in the writ. Should this Court

grant relief on Applicant‘s claims, the State would be additionally prejudiced in its

ability to retry Applicant.

Applicable Law

       In Ex parte Carrio, the Court of Criminal Appeals described the equitable

doctrine of laches as follows:


4
  The reporter‘s record of the trial is not dated except for a notation on the cover that the case
came to be heard on April 22, 1991. Page 724 of Volume 3, the date of the jury‘s verdict on
punishment, however, is dated April 29, 1991. (RR3:724).

                                               18
      The doctrine of laches is based upon the maxim that equity aides the
      vigilant and not those who slumber on their rights. It is defined as
      neglect to assert right or claim which, taken together with lapse of
      time and other circumstances causing prejudice to an adverse party
      operates as a bar in a court of equity. Also, it is the neglect for an
      unreasonable and unexplained length of time under circumstances
      permitting diligence, to do what in law, should have been done.

992 S.W.2d 486, 487 n.2 (Tex. Crim. App. 1999) (internal quotations omitted).

Laches should be considered in determining whether to grant relief in a case on

habeas. Id. at 488; see also Ex parte Perez, No. AP-76,800, 2014 Tex. Crim. App.

LEXIS 1509, at *7-8 (Tex. Crim. App. Oct. 8, 2014) [hereinafter Perez II].

Indeed, the Court has recently stated ―that laches should apply as a bar to relief

‗when an applicant‘s unreasonable delay has prejudiced the State, thereby

rendering consideration of his claims inequitable.‘‖ Ex parte Perez, 398 S.W.3d

206, 219 (Tex. Crim. App. 2013) [hereinafter Perez I].

      In deciding whether laches applies as a bar to relief in a particular case, a

reviewing court should consider the totality of the circumstances. Perez I, 398

S.W.3d at 215. Relevant considerations may include: the length of the delay; the

reasons for the delay; and the degree and type of prejudice resulting from the

delay. Perez I, 398 S.W.3d at 217. Significantly, the State is no longer required to

make a ―particularized showing of prejudice.‖ Perez II, 2014 Tex. Crim. App.

LEXIS at *7 (citing Perez I, 398 S.W.3d at 208, 211–212). The determination of

prejudice ―permit[s] consideration of anything that places the State in a less



                                        19
favorable position[.]‖ Id. This may include the State‘s ability to respond to the

allegations in an application or the State‘s ability to retry a defendant. See id. at

215–16. The State may suffer prejudice ―as a result in [a] delay in light of the

faded memories of witnesses and the lack of available evidence, both of which

[will] compromise[] the reliability of any future trial proceedings. Perez II, 2014

Tex. Crim. App. LEXIS at *21-22 (citing Perez I.398 S.W.3d at 219).

      Importantly, ―the extent of the prejudice the State must show bears an

inverse relationship to the length of the applicant‘s delay . . . the longer an

applicant delays filing his application, and particularly when an applicant delays

filing for much more than five years after conclusion of direct appeals, the less

evidence the State must put forth in order to demonstrate prejudice.‖ Perez I, 398

S.W.3d at 217–18 (emphasis added).

      An applicant facing the possibility of dismissal on the theory of laches must

provide a reasonable or justifiable excuse as to the reason for his delay. Ex parte

Smith, 444 S.W.3d 661, at 14 (Tex. Crim. App. 2014). He is expected ―to, at the

very least, make diligent inquiries and take steps to educate himself about the

proper procedures for seeking additional review.‖ Perez II, 2014 Tex. Crim. App.

LEXIS at *20-21.

      The Court of Criminal Appeals has cautioned that laches should be used

sparingly, but that it should be used specifically in ―applications demonstrating an



                                         20
excessive delay that undermine[] or obstruct[] the principles and virtues the

criminal-justice system promotes.‖ Smith, 2014 Tex. Crim. App. LEXIS at*14.

The Court stated:

        Protracted habeas corpus litigation defers convictions‘ finality,
        ―undermines confidence in the integrity of our procedures and
        inevitably delays and impairs the orderly administration of justice.‖
        This in turn weakens the criminal law‘s deterrent and rehabilitative
        functions. ―There must come a time when a criminal conviction is
        final, when the deterrent effects of certainty and immediacy of
        punishment outweigh an inmate‘s right to endlessly litigate an appeal
        of his conviction.

Smith, 2014 Tex. Crim. App. LEXIS at 11-12 (quoting Ex Parte Steptoe, 132

S.W.3d 434, 437–38 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).

Findings of Fact

   1.    Applicant murdered his father, James Berkeley Harbin (hereinafter ―the
         complainant‖), on January 8, 1991. Following a trial by jury, he was
         convicted and sentenced to life in prison on April 29, 1991. His conviction
         was affirmed by the Fifth District Court of Appeals on August 6, 1992.
         Mandate issued on March 8, 1993.

   2. Applicant filed the instant Application for Writ of Habeas Corpus on June
      24, 2010. He filed multiple amended applications. The first evidentiary
      hearing took place on February 21, 2014. The final hearing took place on
      August 28, 2014.

   3. Approximately nineteen years passed between Applicant‘s conviction and
      the filing of his application.

   4. Applicant‘s defense at trial was that he murdered the complainant in self-
      defense. He alleged that prior to his death, the complainant was mentally
      ill and violent.

   5. None of the complainant‘s medical or mental health records were

                                         21
     introduced into evidence at Applicant‘s trial.

6. Prior to his death, the complainant was treated by psychiatrist Dr. Daniel B.
   Pearson, Jr.. There is no evidence showing the date that Dr. Pearson last
   treated the complainant.

7. Dr. Pearson did not testify at Applicant‘s trial.

8.   Dr. Pearson‘s records regarding the complainant have been destroyed. The
     specific date of destruction is unknown. The only available medical record
     is a 1991 re-print of a 1988 report written to the Texas Rehabilitation
     Commission, summarizing the complainant‘s mental health. (DX#11).

9.   Dr. Pearson‘s 1991 reprint of his 1988 letter does not identify the
     complainant‘s specific diagnosis. It merely identifies a series of symptoms
     exhibited by the complainant.

10. Dr. Pearson died on January 23, 2013. (SX#4).

11. The complainant was treated by Dr. Ricardo Shack in 1989 at Willowbrook
    Hospital. (WRR5:57). Willowbrook Hospital no longer in exists.
    (WRR5:67). Willowbrook Hospital has since destroyed it‘s records.
    (WRR5:67). Dr. Shack has since destroyed his own records regarding the
    complainant. (WRR5:67-68). Dr. Shack has no recollection of treating the
    complainant. (WRR5:67-68).

12. It is undisputed that the complainant suffered from some form of mental
    illness. Given the lack of medical records or medical testimony, however,
    it is impossible to make any specific finding regarding the complainant‘s
    diagnoses and the nature or extent of any treatment he may have received.
    It is also impossible to make any finding that the complainant‘s mental
    illness caused the complainant to be violent.

13. Given the lack of medical records and the lack of medical or psychiatric
    testimony, the State is unable to refute Applicant‘s claim that the
    complainant was mentally ill and that the complainant‘s mental illness
    rendered him violent.

14. Had Applicant challenged his conviction closer in time to his conviction,
    the State may have been able to refute his allegations with the

                                      22
    complainant‘s medical records and/or testimony from the complainant‘s
    treating physicians. At this late date, the records are unavailable, and the
    complainant‘s physicians are either dead or have no memory of the
    complainant.

15. Because of Applicant‘s delay in filing his writ, the State is also unable to
    call witness Hanna Fuller in an effort to refute his claims. The complainant
    lived with Applicant and his sister, Hanna Fuller, in the year and a half
    preceding his death. Given the fact that they shared a home, Fuller may
    have been able to provide testimony as to the complainant‘s behavior or
    any interactions she observed between Applicant and the complainant.
    Hanna Fuller died in 2004. (SX#5).

16. Had Applicant challenged his conviction closer in time to his conviction,
    the State may have had at least the opportunity to present Fuller‘s
    testimony regarding the complainant‘s behavior/temperament in the year
    and a half preceding his death.

17. Applicant‘s delay in challenging his conviction has prejudiced the State‘s
    ability to respond to his allegations with relevant and competent evidence.

18. The memories of Applicant‘s own witnesses have degraded over the past
    two decades. These witnesses include: Ginger Cole (WRR5:44, 61, 76–
    77, 89); George Cole (WRR4:45, 60, 64); and, Julie Badii (WRR5:8, 32–
    34).

19. Applicant was represented at trial by Matt Fry. Fry testified at the
    February 21, 2014 evidentiary hearing that he was unable to locate his
    complete file in this case. (WRR2:13). He was, however, able to locate a
    few documents. (WRR2:13-14; DX#2). Fry has little to no recall of the
    necessary details regarding Applicant‘s case. (WRR5:16-17, 19, 20, 21, 22,
    23, 27, 28, 29, 33, 34, 36-37, 41). He does not recall the name of every
    witness he interviewed. (WRR5:19, 28). He does not recall the nature of
    any pre-trial disclosures made by the prosecution. (WRR5:33).

20. Due to the fact that more than nineteen years has passed since Fry
    represented Applicant, the fact that Fry no longer has his file, and the fact
    that Fry‘s memory has faded, it is impossible to determine what
    information Fry had in his possession at the time he represented Applicant
    regarding the instant offense. Without Fry‘s complete file, it cannot be

                                     23
    determined whether Fry had any notes detailing his efforts to investigate
    this case. Without Fry‘s complete file, it cannot be determined whether
    Fry had any notes concerning the nature of the information that the State
    disclosed during discovery or the date that it was disclosed.

21. Given the state of Fry‘s file and his lack of recollection of critical details,
    the State is prejudiced in its ability to refute many of Applicant‘s
    allegations regarding Fry‘s representation and the State‘s disclosures. Had
    Applicant filed his writ in a timely fashion, Fry may have been able to
    locate his file. Fry may have had a better recollection as to his
    investigation and preparation of Applicant‘s case. Fry may have had a
    better recollection of the State‘s pre-trial disclosures.

22. Applicant‘s case was prosecuted by former Assistant District Attorney
    Gary Smart. Smart recalls some details of Applicant‘s case, but does not
    have a complete recollection of trial or his investigation and preparation of
    Applicant‘s case. He does not recall where he obtained certain documents
    that were located within his file. He does not recall what he disclosed to
    the defense prior to trial.

23. Given Smart‘s lack of recollection of critical details, the State is prejudiced
    in its ability to refute many of Applicant‘s allegations regarding Smart‘s
    prosecution of Applicant‘s case. Had Applicant filed his writ in a timely
    fashion, Smart may have had a better recollection as to the origin of
    evidence in his file. Smart may have had a better recollection of his pre-
    trial disclosures to the defense.

24. The lack of critical records, the death of critical witnesses, and the faded
    memories of existing witnesses has prejudiced the State‘s ability to respond
    to the allegations in Applicant‘s writ.

25. The lack of critical records, the death of critical witnesses, and the faded
    memories of existing witnesses would prejudice the State in its ability to
    re-try Applicant, should he be granted relief on the instant writ. Indeed, the
    delay has compromised the reliability of any future trial proceedings.

26. Applicant waited an extraordinary length of time to file his initial
    application for writ of habeas corpus.




                                      24
  27. Applicant has failed to present any evidence justifying the nineteen-year
      delay in the filing of his writ.

  28. Any prejudice suffered by Applicant due to the passage of time (absence of
      records, faded witness memories, etc) is due solely to his own delay in
      waiting to file his initial application for writ of habeas corpus. As such,
      Applicant is not entitled to claim that he has been prejudiced by the
      passage of time since it was entirely his choice to delay the filing of the
      instant writ.

  29. The State has proven that laches should apply in this case.

  30. Applicant‘s claims are barred by the equitable doctrine of laches.

Conclusions of Law

  31. This Court must consider the equitable doctrine of laches. Indeed, the
      Court of Criminal Appeals has recently decided several cases
      demonstrating a trend toward greater application of this doctrine.

  32. Applicant has been dilatory in filing his Application for Writ of Habeas
      Corpus.

  33. Given the passage of so many years since the date of the offense and
      Applicant‘s trial, there is difficulty in ascertaining the facts pertinent to
      Applicant‘s grounds for relief. See Carrio, 992 S.W.2d at 488.

  34. The passage of so much time has prejudiced the State‘s ability to refute
      Applicant‘s allegations.

  35. The passage of so much time will prejudice the State in its ability to re-try
      Applicant should he be granted relief on this writ.

  36. Both the State and society have a strong interest in the finality of this
      conviction, which was affirmed 22 years ago.

  37. Consideration of Applicant‘s claims is barred by the equitable doctrine of
      laches.

  38. The Court recommends that Applicant‘s writ be DENIED on the basis of

                                       25
       the equitable doctrine of laches.



      In the alternative, the Court makes the following findings and comes to the

following conclusions as to Applicant‘s specific grounds for relief:



                                           XI.

                              SPECIFIC FINDINGS


         GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

      In his first ground for relief, Applicant contends that Matt Fry rendered

ineffective assistance at trial. Specifically, he contends that Fry: (1) failed to

present evidence of the complainant‘s mental state; (2) failed to present evidence

of Applicant‘s mental state; (3) failed to present evidence from a mental health

professional regarding the complainant‘s mental illness; (4) failed to interview or

call to testify six young men whom the complainant allegedly threatened or

abused; (5) failed to call the complainant‘s child from a prior marriage to testify

regarding the complainant‘s abuse of his ex-wife; and (5) he failed to present

evidence concerning police reports the complainant‘s ex-wife filed regarding the

complainant.




                                           26
Applicable Law

                                  Burden of Proof

      In a post-conviction collateral attack, the burden is on the applicant to allege

and prove facts which, if true, entitle him to relief. Ex parte Maldonado, 688

S.W.2d 114, 116 (Tex. Crim. App. 1985).           The standard of proof is by a

preponderance of the evidence. See Ex parte Adams, 768 S.W.2d 281, 287-88

(Tex. Crim. App. 1989).

                          Effective Assistance of Counsel

      The right to effective assistance of counsel is guaranteed under both the

federal and state Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, §

10. To succeed on a claim of ineffective assistance of counsel, an applicant must

show that: (1) counsel‘s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel‘s

unprofessional errors, the result of the proceeding would have been different. See

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); see also Hernandez v.

State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (applying Strickland to cases

arising under article I, section 10 of the Texas Constitution).        A reasonable

probability is defined as a probability sufficient to undermine confidence in the

outcome. Id. at 694; see also Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim.

App. 1992).



                                         27
        Counsel‘s competence is presumed, and an applicant must rebut this

presumption by proving by a preponderance of the evidence that his attorney‘s

representation fell below the standard of prevailing professional norms and that the

challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S.

365, 384 (1986); see also McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.

App. 1996). He must rebut the presumption with evidence, not allegations. See

Roberson v. State, 852 S.W.2d 508, 510 (Tex. Crim. App. 1993). It is not enough

for him to show that the errors had some conceivable effect on the outcome of the

proceedings. Strickland, 466 U.S. at 693.     He must overcome the presumption

that, under the circumstances at trial, the challenged action could be considered

sound trial strategy. Strickland, 466 U.S. at 689. Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.   Strickland, 466 U.S. at 700; McFarland, 928 S.W.2d at

500.

Findings of Fact

                          The Complainant’s Mental State

   1.    The jury was well aware that the complainant suffered from mental illness
         and that, at times, he exhibited threatening and violent behavior.

   2.    During the guilt/innocence phase of trial, Fry cross-examined State‘s
         witness Sam Gish regarding the complainant‘s mental illness. Fry asked
         Sam Gish if he was aware that the complainant had ―mental problems[.]‖
         (RR1:29). Gish testified that he ―[had] heard that.‖ (RR1:29).



                                        28
3.   In his opening statement during the guilt/innocence phase of trial, Fry
     informed the jury that the complainant had mental illness:

         I want to tell you that the picture that will be drawn is a very tragic
         one, a very sad one, is a picture of a family made up of good people
         who were completely undone and destroyed as a family due to the
         mental illness of the father of the family. We will show you a picture
         of a man who was a good man and who developed paranoid
         schizophrenia, a psychotic disease of the mind, a mental illness,
         which resulted in him being hospitalized, resulted in him
         undergoing electroshock therapy, it resulted in him being medicated
         with drugs and costed [sic] him his self-control, costed [sic] him his
         self-respect, costed [sic] him his job, costed [sic] him his wife, costed
         [sic] him his family, and in general, destroyed all of the highest
         hopes and aspirations of the Harbin family.

         We intend to show you that his mental illness resulted in him having a
         very paranoid and suspicious mind at times, having very little lack of
         control about what he would say to others, resulted in him at times
         being in a rage, resulted at times in him making threats to people‘s
         face or behind their back that he would take care of them or kill them,
         resulted at times in him being physically assaultive to various people,
         reduced him to the point where he could not work, was discharged
         from his employment of many years, and in fact, at one point at low
         ebb, was parking on a parking lot and staying in his car.

          (RR1:302–303) (emphasis added).

4.   Fry presented the following witnesses during the guilt/innocence phase of
     trial: Applicant, Ginger Cole, Gary Bronson, Candace Conrad, Teresa
     Swanner, Candace Harbin, and Karen Neal. Each of Applicant‘s witnesses
     testified regarding the complainant‘s mental illness and/or the
     complainant‘s propensity for threatening or violent behavior.

5.   Ginger Cole, Applicant‘s mother, testified at length regarding the
     complainant‘s mental health treatment:

         [Ginger Cole]: . . . He developed—at that time, he sought professional
         counseling. He became real depressed and had some emotional
         problems and he started seeing a psychiatrist and ended up having

                                     29
          electroshock therapy in about 1975. . . .

          (RR2:309)

          [Ginger Cole]: (In response to a question about how long complainant
          held a position with the Postal Service) Until he got medical disability
          from the post office. I believe that was in 1985 or ‘86.
          [Fry]: Now, why did he get a medical disability?
          [Ginger Cole]: He had been diagnosed—he had been undergoing
          psychiatric treatment from a Dr. Daniel B. Pearson in Dallas for
          several years and apparently the medication didn‘t help and he
          became dysfunctional. He got his medical retirement and he hadn‘t
          worked for about two or three years before the divorce.
          [Fry]: Do I understand then that Dr. Daniel Pearson is a psychiatrist?
          [Ginger Cole]: Yes, sir.
          [Fry]: And his mental problems continued to worsen, I take it?
          [Ginger Cole]: Yes
          [Fry]: And he became where he was unable to go to work at all; is that
          correct?
          [Ginger Cole]: That is correct. He got a medical disability or
          retirement or however you want to categorize it. But it was from the
          post office and it was due to his mental condition.

          (RR2:310).

6.   Ginger Cole testified regarding the complainant‘s attitude and behavior:

          [Fry]: How did this mental illness make him act?
          [Ginger Cole]: Mostly he was depressed. He laid on the couch or laid
          in the bed. It got to the point where I would have to make him get off
          of the bed so I could change the sheets. He was pretty well
          dysfunctional . . . .

          (RR2:312)

          [Fry]: Okay. Did he have occasions where he had very little self-
          control when something stressful would come up?
          [Ginger Cole]: He was very hot tempered and most of the time I
          deferred to him and only one time did he get physical with me.
          [Fry]: What was that over?

                                      30
[Ginger Cole]: I don‘t even remember what it was over. It was
probably over something stupid. I had determined that I was going to
stand my ground one time and get my way and he threw me up against
the wall and I can remember the fear. I mean I have never been treated
like that and I just deferred to him ever since. And that feeling is the
feeling that I remembered thinking if there had been a gun lying on
the table, I would have picked it up and shot him. It scared me to think
...
[Fry]: Had you ever felt like that before?
[Ginger Cole]: Never since—never before and never since. I have
never had that same fear that same—I mean it was a shock. . . .
[Fry]: How did his relationship with the children go during this
period?
[Ginger Cole]: He could be the best father that anybody could ever
wish for. He could be very gentle. He would help the children with
their lessons and he could explain things to the children in a way that I
could not. He could be perfect teacher, and when he wanted to be, he
could be a model father as far as, you know, explaining what is right
and what is not right. . . .
....
....
....
[Fry]: Was there any open conflicts between he and the children
during this period?
[Ginger Cole]: No, not—there was not a specific instance because he
was not a very strict disciplinarian. He would pretty much let the kids
have their way. . . .

(RR2:313–14)

[Fry]: Why did you make the children aware of those threats?
[Ginger Cole]: Because I wanted them to understand that even though
their daddy was their daddy and they loved their daddy, that he had a
violent nature and that they needed to be careful not to aggravate
him.

(RR2:323-24)

[Ginger Cole]: . . . I think that [Applicant] had a fear of developing a
mental illness and he didn‘t want to acknowledge it.

                            31
          [Fry]: Now, his father was a paranoid schizophrenic, true?
          [Ginger Cole]: That is true.

          (RR2:328).

7.   Ginger Cole testified that the complainant‘s family had a family history of
     depression. (RR2:328-29).

8.   Ginger Cole never engaged in conversations with the complainant‘s
     physicians. (WRR5:76–80; RR2:341).

9.   On cross-examination, Ginger Cole admitted that the complainant ―never
     physically beat the children.‖ (RR2:341-42).

10. Ginger Cole testified that the complainant threatened her life on several
    occasions. (RR2:319–23).

11. Applicant testified that the complainant was ―like really depressed from
    being mentally ill.‖ (RR2:355). He testified that the complainant took
    medication prescribed by his psychiatrist. (RR2:355). He testified that the
    complainant had electroshock therapy and had been hospitalized at
    Willowbrook. (RR2:355-56).

12. Applicant testified that the complainant was irritable and volatile.
    (RR2:356-57).

13. Applicant testified that the complainant would get upset and threaten to
    harm Applicant‘s step-father, George Cole. (RR2:359). ―He said he would
    kill him, and other times he said he would castrate him.‖ (RR2:359).

14. Candace Harbin, Applicant‘s sister and the complainant‘s daughter,
    testified to the complainant‘s mental state and ongoing depression.
    (RR2:481).

15. Candace Harbin testified to the complainant‘s propensity for violence.
    (RR2:481). The complainant threatened her. (RR2:481). The complainant
    was known to threaten others. (RR2:481, 483).

16. George Bronson testified to the complainant‘s making threats and to his
    propensity for aggression. (RR2:457–60). Bronson also testified that he

                                     32
    saw the complainant once or twice a week for three years and had only
    seen the complainant in ―a complete rage‖ on three occasions. (RR2:461-
    62).

17. Bronson testified that the complainant had severe mental problems.
    (RR2:457).

18. Candace Conrad testified that the complainant told her to tell Ginger Cole
    ―that he was going to kill her husband [George Cole].‖ (RR2:470).
    Conrad never saw the complainant physically abuse anyone. (RR2:473).

19. Teresa Swanner testified about the complainant‘s outburst at the church,
    when he threatened to kill George Cole.        (RR2:478). Swanner also
    testified that when the complainant threatened to kill George Cole, he said
    that ―George had put a bruise on Candace [Harbin].‖ (RR2:478).

20. During his closing, Fry argued that the complainant was mentally ill and
    that he was violent and abusive. (RR3:619–21, 624-25). Fry argued that
    Applicant ―killed a man who at that time had not a wit in his head and no
    self-control and was a danger.‖ (RR3:625).

21. During the punishment phase of trial, Fry called the following witnesses:
    Ginger Cole, Candace Harbin, Ray Anderson, and Linda Strackbein.

22. Ginger Cole testified that Applicant had never before been to prison or on
    felony probation. (RR3:654). She testified in support of Applicant being
    placed on probation. (RR3:655-63).

23. Candace Harbin testified in support of Applicant being placed on
    probation. (RR3:679).

24. At the evidentiary hearing on the instant writ, Fry described his perspective
    regarding the issue of the complainant‘s mental illness:

         [Fry]: Looking back on it, I think that - - I just don‘t remember there
         ever being any controversy whatsoever about the fact that the father
         had had a mental illness, that he had been under psychiatric care, that
         he had lost his career and was unable to work, and had had substantial
         difficulties in family life and so on because of his mental illness. I
         think that was - - my memory of it, that was abundantly clear from the

                                     33
         people that knew best and had been present with him, living with him,
         and knew the facts about how his mental illness impacted his life and
         his behavior and so forth.
         [Defense Counsel]: And so are you saying that you didn‘t feel like it
         was necessary to give psychiatric testimony about that?
         [Fry]: Well, I think that‘s probably a fair - - a fair summary. I just
         don‘t believe that - - or I don‘t remember any controversy at all about
         - - about him being mentally ill - - having a mental illness and being
         treated for mental illness and all these other kinds of things we talked
         about. In fact, I think the State could not dispute that.
         [Defense Counsel]: And - -
         [Fry]: It was a fact.

         (WRR2:25).

25. At the evidentiary hearing on the instant writ, Ginger Cole conceded that
    she never knew or received a definitive diagnosis regarding the
    complainant‘s mental illness. (WRR5:79–80). She testified that she was
    ―just going by what the doctor said. I‘m not a doctor. The doctor‘s report
    says that he‘s - - was severely depressed, which I observed. I observed
    these manic highs and lows[.]‖ (WRR5:43). The trial court asked how the
    complainant would behave when he was manic. (WRR5:43). Ginger Cole
    testified that ―He would be up, doing things or - - well, like, it‘s hard to
    remember 30 years ago.‖ (WRR5:43). She observed that the complainant
    ―was very capable of turning on Mr. Nice Guy when he wanted to and
    being totally out of control when he didn‘t want to be[.]‖ (WRR5:43).

26. Ginger Cole conceded that she never informed the family court judge about
    the complainant‘s abusive behavior during child custody hearings.
    (WRR5:48).

27. Ginger Cole is not a credible witness.

28. According to Smart‘s notes, Ginger Cole informed Teresa Harry that she
    feared the Applicant more than she feared the complainant. (DX#6 p.1
    (Gary Smart‘s handwritten notes).

29. At the writ hearing, George Cole testified that he is Applicant‘s step-father.
    George Cole‘s testimony regarding the complainant‘s threatening behavior
    is largely hearsay from Ginger Cole. (WRR4:44–48, 60).

                                      34
30. At the writ hearing, Paula Collins, Applicant‘s maternal aunt, testified that
    on one occasion, she woke up in the middle of the night and saw the
    complainant sitting on her bed. (WRR3:110). She felt scared because she
    ―didn‘t know what he was doing in my bedroom in the dark.‖
    (WRR3:110). He got up to leave and jerked her head to kiss her.
    (WRR3:113-14). When he jerked her head he caused her neck problems
    that she then suffered for years. (WRR3:114, 125, 126). Collins never
    informed anyone about the incidents. (WRR3:126–27). Collins testified to
    complainant‘s stalking behavior of Ginger Cole. (WRR3:117).

31. Contrary to Applicant‘s contentions, Fry cross-examined witnesses and
    presented evidence showing that that the complainant suffered from mental
    illness and exhibited threatening behavior.

32. Applicant has failed to prove the complainant‘s mental illness to any
    degree of specificity greater than that already presented at Applicant‘s trial.

33. Applicant has failed to prove that the complainant‘s mental illness caused
    him to be violent. As such, he has failed to prove that Fry was ineffective
    in failing to prove that the complainant‘s mental illness caused him to be
    violent.

                           Applicant’s Mental State

34. The jury was aware that the complainant and Applicant had a volatile
    relationship. The jury was aware of Applicant‘s claims that the
    complainant abused him and that he was scared of the complainant.

35. During the guilt/innocence phase of trial, Sam Gish testified that Applicant
    never told him that the complainant abused him. (RR1:45). Gish never
    saw bruises on Applicant. (RR1:45-46).

36. Gish testified that two days before the instant murder, Applicant ―told me
    he wanted to kill his dad and asked me if I would help.‖ (RR1: 24).
    Applicant told Gish that he hated the complainant. (RR1: 27). He planned
    to hide the complainant‘s body ―in a well-hidden spot.‖ (RR1: 27). ―He
    said he was going to park [the complainant‘s car] somewhere where it
    would look like his dad had abandoned it.‖ (RR1: 28).



                                      35
37. Gish testified that Applicant had a gun. (RR1: 24, 27). It was a .380.
    (RR1: 24).

38. During guilt/innocence, Clayt Spitzer testified that he thought that
    Applicant ―might have said something about [the complainant abusing
    him] once, but it wasn‘t a big thing. He just kind of said something about it
    and then we talked about something else.‖ (RR1: 57). In late December
    1990, Applicant called Spitzer while Spitzer was at his girlfriend Kellye
    Morris‘s house and asked him if he wanted to help him kill someone.
    (RR1: 58-59).

39. During guilt/innocence, Matt Tobin testified that he never saw any
    confrontations between the complainant and Applicant. (RR1:68).

40. During guilt/innocence, Jason Gish testified that he was not aware of the
    complainant abusing Applicant. (RR1:165).

41. In his opening statement during the guilt/innocence, Fry addressed issues
    of abuse and physical intimidation. He stated:

         We will show you a picture of his son who although he desperately
         wanted the love and acceptance and approval of his father, found that
         unattainable, felt branded as a failure in his father‘s eyes, was
         ridiculed and rejected, was verbally and physically threatened, and
         came to desperately fear his father, and at times being extremely
         angry with his father and resentful of him, and that these events
         continued to heat up over time with no practical resolution to these
         conflicts seemingly being available until the night in question in
         which this shooting took place.
         ....
         That James, in fear of his own life after his father‘s rage, went and got
         his pistol out of the car. That his father came toward him in a rage,
         abusing him verbally and apparently fixing to grab him. That James,
         Sr. is a much larger man than James, the son. That the defendant got
         his gun and he did so to defend himself from his father who he
         thought at that time would kill him that he blindly and instinctively, in
         reaction to these threats of his father, as he put it in his statement,
         fired the gun as quick as he could, and this resulted in the death of Mr.
         Harbin.



                                     36
         (RR1:303–04).

42. Fry called several family members and other lay witnesses to testify to
    abuse that Applicant may have sustained by complainant.

43. During guilt/innocence, Applicant testified that the complainant threatened
    to kill him on four occasions. (RR2:364-65, 366, 367, 369). He testified
    about physical confrontations with the complainant. (RR2:356–57, 362,
    364, 367, 369). He gave inconsistent testimony with regard to his reaction
    to the complainant‘s aggression, sometimes testifying to mutual combat
    and sometimes testifying that he always retreated. (RR2:366–72).
    Applicant admitted that he would occasionally provoke the complainant.
    (RR2:492–93).

44. Applicant testified that the complainant verbally abused him. (RR2:357–
    58, 364). He testified that the complainant would ―yell at me a lot.‖
    (RR2:356). He testified that the complainant verbally abused others.
    (RR2:359).

45. Applicant testified that he was intimidated by the complainant and that he
    was in fear of the complainant. (RR2:361–63, 370–71).

46. Applicant testified that the complainant would leave without telling anyone
    where he was going or when he would return. ―Some of the time I didn‘t
    even know where he was. He would take off without telling anyone and he
    would be gone for like a week or so. (RR2:370-71).

47. With regard to the offense itself, Applicant testified that he shot the
    complainant in self-defense. (RR3:388–97, 451–454). He testified that the
    complainant ―started coming at me.‖ (RR2: 389). He got his gun from his
    car. (RR2:392). He testified that at that point, the complainant, ―He came
    at me.‖ (RR2:393). ―He was running like he was just coming at me.‖
    (RR2:393). Applicant testified that he shot the complainant as the
    complainant was coming toward him. (RR2:394-95). He claimed that he
    ―was afraid of him hurting me and I did not want to be hurt.‖ (RR2:396).

48. Candace Harbin testified that she witnessed one incident of complainant
    physically abusing Applicant. (RR2:487). Candace Harbin was informed
    by Applicant of a limited amount of incidences of physical abuse.
    (RR2:491). One particular provocation was because Applicant had failed

                                    37
    to protect Candace from his friend:

         [Candace Harbin]: Yeah. There was one other time when he told
         me—when we lived on Audra Street, James had this friend whose
         name was Chris Lyons. I was in the shower stark naked and he came
         and picked the lock on my bathroom so he could see me naked. I
         grabbed the show curtain and had the shower curtain around me and
         he chased me around the house.
         [The complainant] was very upset that [Applicant] was in the house
         and did not take Chris out of the house and make him leave or
         something. He told me that he should have killed my brother for what
         he did. He didn‘t say, ―I will kill him.‖ He said, ―I should kill him for
         not protecting you.‖

         (RR2:492-93). This was the only threat towards Applicant that the
         complainant made to Candace. (RR2:493-94).

49. Candace testified that the relationship between Applicant and the
    complainant was not always hostile. (RR2:488)

50. Karen Neal, Applicant‘s ex-girlfriend, testified that she saw bruises and
    other marks on Applicant‘s body. (RR3:597).

51. During the guilt/innocence phase, Hannah Fuller testified for the State.
    Fuller testified that she only witnessed two arguments between Applicant
    and the complainant.        (RR3:509).     She never saw any physical
    confrontations. (RR3:509). Fuller testified that had not seen any wounds
    or indications of abuse on Applicant. (RR3:509). She never heard the
    complainant threaten Applicant. (RR2:510).

52. During punishment, Fry argued to the jury that the abuse Applicant
    sustained from the complainant was mitigating. (RR3:710).

53. At the evidentiary hearing on the instant writ, former prosecutor Gary
    Smart testified that he found no indications of chronic abuse during his
    investigation:

         [Court]: But were there any details as far as abuse or anything like
         that?



                                     38
         [Smart]: No.

         [Court]: So you didn‘t have any idea what made the divorce bitter,
         whether it was money or abuse or a combination?

         [Smart]: I didn‘t have any indication that there was abuse involved. I
         think money was an issue and Mr. Harbin, Sr., not working and not
         maintaining a job and lying around the house a lot and not doing
         anything to provide for the family or contribute in anything to family
         that was—and I—I interviewed George Cole. I interviewed Julie
         Harbin, another sister, on a couple of different occasions because I
         was trying to determine why—if there was any underlying factors as
         to why an 18-year-old kid would wake his dad up and shoot him six
         times in the back.

         [Court]: And do you recall thinking that maybe, maybe there was
         some justification? I mean, is that reflected on any offers of settlement
         that you made or?

         [Smart]: No. No. When—When I was—got this file and looked
         through the file, that‘s what I was looking for. I was looking for
         something to indicate to me as to some type of abuse on the part of—
         that Mr. Harbin, James Harbin, or some mitigating circumstance that
         would justify him waking his dad up and—shooting him—

         [Court]: Okay.

         [Smart]: —other than just psychopathic.

         [Court]: Okay. And did you find anything?

         [Smart]: I did not.

         (WRR3:60–61).

54. Smart‘s interviews with others turned up no signs of physical abuse:

         [Smart]: —No, there wasn‘t any other signs of aggression and not
         from any of [Applicant]—I think I interviewed three or four of
         [Applicant‘s] friends, as to whether [Applicant], the defendant, had

                                     39
         ever complained about abuse he was suffering at the hands of [the
         complainant]. He—he was verbally abusive toward him. I think he—
         he belittled it—he belittled the defendant.

         [Court]: Okay.

         [Smart]: But as far as any physical abuse toward him, there wasn‘t
         any indication, other than that one incident that they talked about. I
         think Candace said he knocked him over the back of the couch or
         something.

         (WRR3:67–68).

55. Had Smart had any evidence of abuse, he would have recommended a
    more lenient sentence. (WRR3:69–70).

56. Applicant was only interested in a plea bargain for probation and no jail
    time. (WRR2:39; DX#2:7)

57. At the writ hearing, George Cole, Applicant‘s step-father, testified that he
    never witnessed the complainant verbally or physically abuse of Applicant.
    (WRR4:59). George Cole testified that Applicant never told him that the
    complainant was abusing him. (WRR4:62).

58. At the writ hearing, Candace Harbin testified that she saw limited instances
    of abuse by the complainant, physical less so than verbal. (WRR6:27–29).

59. At the writ hearing, Applicant‘s sister, Julie Badii, testified. Badii did not
    recall meeting with any lawyer prior to Applicant‘s trial. (WRR5:8).
    Badii‘s testimony regarding the complainant‘s abuse of Applicant is based
    on a limited number of instances and hearsay. (WRR5:20–21). Badii did
    not witness any physical violence towards Ginger Cole or other family
    members beyond two instances with Applicant. (WRR5:23–24, AX 1E:2).

60. At the writ hearing, Badii testified that she witnessed the incident when the
    complainant backhanded Applicant in the kitchen. (WRR5:12). On
    another occasion, after the divorce, she saw Applicant and the complainant
    fight. (WRR5:14). She described the incident as follows:

         This is after my parents were divorced and my brother was living with

                                      40
         - - with my aunt, and my dad was not present very often. I didn‘t see
         my brother very much, so he came and picked up my friend and I, and
         we went to visit my brother at my aunt‘s house. And he had taken us
         out to get Whataburger and we went in his room and were eating.
         And my dad came in in a rage and opened up his bed - - - opened up
         my brother‘s bedroom door and just started yelling at him. And they
         went in the kitchen and, of course, I - - I don‘t recall what they were
         arguing about but it piqued my interest, so I followed them into the
         kitchen and I could hear them arguing and yelling. And my - - they
         took swings at each other. And my dad picked him up by his throat.
         And I was so scared, I started screaming and yelling. I had never seen
         him do anything like that before.

         (WRR5:14).

61. According to Smart‘s notes, Julie Badii‘s only knowledge of any abuse
    stemmed from hearsay. (AX 6:7). Badii informed Smart she never
    witnessed violence towards Applicant. (AX 6:7 ~4-9-91 4:30).

         ―‖T/C to Julie Harbin. She saw her dad on weekends. She got along
         with [the complainant]. She never saw [the complainant] hit
         [Applicant]. She said [the complainant] did not hit her. She has heard
         from Karen Neel that [the complainant] was abusive toward
         [Applicant]‖

         Badii reiterated this testimony in a second visit with Smart. (DX 6:8).

62. At the writ hearing, Applicant‘s friend, David Dunlevy, testified that he
    witnessed the complainant physically attack Applicant. (WRR3:79–83).
    By Dunlevy‘s own account, however, at the time the incident began, he
    ―was still sort of in a dream state[.]‖ (RR3:90). Dunlevy never informed
    anyone of the incident he observed. (WRR3:92–93). Dunlevy claims that
    he told his mother sometime in the late ‗90s. (WRR3:95). Dunlevy‘s
    statement, however, cannot be corroborated by the State as Dunlevy‘s
    mother passed away in 2006. (WRR3:95). Dunlevy did not contact any
    authorities despite Applicant being attacked nor did Dunlevy attempt to
    seek treatment for Applicant after the attack. (WRR3:92). Dunlevy‘s
    testimony is extremely fragmentary as to what he observed. (WRR3:79,
    89–91). Dunlevy testifies to witnessing a big fight break out but also
    testifies he somehow fell asleep during it only to be awoken later by

                                     41
    Applicant during the fight. (WRR3:79, 89–91). Dunlevy later testified the
    fight broke out in another room. (WRR3:91). Dunlevy claims that
    Applicant was at the mercy of the complainant, who was choking
    Applicant, but fails to account how Applicant could navigate to Dunlevy‘s
    bedroom and shake Dunlevy to wake him up. (WRR3:92).

63. Dunlevy testified that Fry did not contact him prior to trial. (WRR3:87).

64. The fact that the complainant and Applicant had a volatile relationship was
    before the jury at applicant‘s trial. The jury heard from Applicant and his
    sister about specific episodes of abuse. The only episode of abuse
    presented at the writ hearing, which was not presented at trial was that
    recounted by Dunlevy. As argued above, Dunlevy‘s account is suspect.

65. Applicant has failed to present credible evidence of abuse beyond that
    already presented at trial. As such, he has failed to prove that Fry was
    ineffective in failing to present evidence of Applicant‘s mental state or the
    complainant‘s abuse of Applicant.

                        Mental Health Professional

66. At trial, Smart objected to the introduction of hearsay evidence regarding
    the complainant‘s mental illness. (RR1:30).

67. Fry did not present evidence of the complainant‘s mental illness through a
    mental health professional.

68. Apparently, the concept of battered woman syndrome was mentioned
    during voir dire and Fry briefly reiterated it during his punishment phase
    closing argument:

         [Fry]: . . . A tremendously wide range of punishment has been
         provided for you and we all went through such a long involved
         process in voir dire trying to show you it is there and to show you
         [that] you can‘t ever tell what a particular case of murder is ―worth‖ in
         terms of a sentence until you have looked at the facts because they are
         all different. There are all kinds of different circumstances and there
         are all kinds of different people involved. We went through so much
         conversation about a battered woman syndrome and all of the
         problems they might have. The Judge went through that with you

                                     42
          and related many other types of mitigating circumstances that you
          could see in murder cases, and I earnestly tell you that his case has
          got so many parallels between that kind of situation.

          (RR3:707).

69. Dr. Daniel B. Pearson, Jr. treated decedent for decedent‘s mental health.
    Dr. Pearson wrote a 1988 report summarizing decedent‘s mental health.
    (WRR5:65). Dr. Pearson‘s report was reprinted in 1991. (WRR5:63). Dr.
    Pearson was not called to testify at trial. Dr. Pearson passed away January
    23, 2013. (See State‘s Exhibit #4). Dr. Pearson‘s records have been
    destroyed. (WRR1:75).

70. Dr. Ricardo Shack treated complainant in 1989 at Willowbrook Hospital.
    (WWR5:57). Willowbrook Hospital no longer exists. (WRR5:67).
    Willowbrook Hospital has destroyed its records. (WRR5:67). Dr. Ricardo
    Shack has destroyed his records concerning the complainant (WRR5:67–
    68). Dr. Ricardo Shack has no recollection of treating the complainant.
    (WRR5:67–68).

71. At the writ hearing, Fry testified that his strategy at trial, with regard to the
    complainant‘s mental illness, was to introduce those persons with the best
    knowledge of the complainant‘s activities and illness. (See WRR2:24–25).

72. Fry testified that he did not recall whether he spoke with Dr. Pearson or
    whether he reviewed any of Dr. Pearson‘s reports. (WRR2:50).

73. At the writ hearing, Smart testified that he believed that the information
    contained within the complaint‘s employment file was sufficient and that
    no medical expert testimony or the complainant‘s treating doctors were
    necessary. (WRR3:70–71). The following exchange took place:

          [Udashen]: And did you talk to any of the [complainant‘s] treating
          physicians?

          [Smart]: I don‘t—I don‘t—I don‘t think I called [the doctors]. I think I
          went basically off of their reports and saw what their reports aid, so
          there wasn‘t any reason for me to contact them.

          Because there wasn‘t anything in the reports that indicated any signs

                                       43
          that he had aggression. All the records told me was that when [the
          complainant] went through his manic depressive states that he was
          incapacitated. I mean, he didn‘t do nothing, he just laid around and
          watched TV and hardly ever got up.

          (WRR3:70-71).

74. Forensic Psychologist, Dr. Randy Price, interviewed Applicant in
    connection with the instant writ. Dr. Price testified at the evidentiary
    hearing on the instant writ.

75. Other than Dr. Pearson‘s 1991 letter, Dr. Price did not review any of the
    complainant‘s medical records and he could not provide a definitive
    diagnosis regarding the complainant. (WRR3:13). Dr. Price conceded that
    Dr. Pearson‘s letter did not state anything about violence. (WRR3:15).

76. Applicant told Dr. Price at the time of the offense, that he and the
    complainant ―physically fought.‖ (WRR3:27-28). Dr. Price formed his
    opinion based on Applicant‘s representations as to how the offense
    transpired. (WRR3:28-29).

77. Applicant‘s rendition to Dr. Price conflicts with the version that he told his
    half-sister Teresa Harry in 2010. In 2006, Harry and Applicant participated
    in the TDCJ Victim/Offender Mediation Program. (WRR3:143-45). After
    mediation, in 2010, Applicant wrote Harry a letter in which he told her that
    on the night of the offense, there was no physical confrontation between
    him and the complainant. (SX#2). He wrote, ―The truth is that there was
    no physical confrontation that night. Everything was verbal.‖ (SX#2). He
    told Harry that on the night of the offense he shot the complainant because
    he was angry with him. (WRR3:151; SX#2).

78. Given the version of events Applicant gave Harry, it is at least possible that
    Dr. Price‘s opinion, which is based on Applicant‘s report that there was a
    physical confrontation at the time of the offense, may be invalid.

79. Dr. Price conceded that expert testimony as to mental illness does not
    always impact the jury during the punishment stage. (WRR2:74).

80. Although Dr. Price testified that he was available to testify to this opinion
    in 1991, he also testified that this was his first time, in over thirty years of

                                       44
    practice, testifying on the theory of psychological self-defense in the
    context of an abused child. (WRR3:30). Accordingly, Applicant has failed
    to prove that a mental health professional was available to testify to
    psychological self defense as it applies to children in 1991.

81. Applicant has failed to prove that Fry was ineffective in failing to call a
    mental health professional at trial.

                    Complainant’s Other Alleged Victims

82. Fry‘s notes reflect that, prior to trial, Diane Gardner provided him with a
    list of possible witnesses: Kevin Weable, Wesley Gardner, Levi
    Glossinger, Matt Tobin, Chris Lyons, and Oscar Hernandez. (AX2:5).
    Diane Gardner did not provide contact information for anyone on the list.
    (AX2:5).

83. At the evidentiary hearing on the instant writ, Fry testified that he cannot
    recall whether he contacted anyone on the list. (WRR2:19–20, 30).

84. Of the six listed individuals, two were called to testify at trial as witnesses
    for the State: Glossinger and Tobin. Glossinger testified he only saw one
    verbal altercation between the complainant and Applicant. (RR3:539).
    Tobin testified he that he did not notice any confrontations between the
    complainant and Applicant. (RR1:64). He did not notice any bruises on
    Applicant. (RR1:64).

85. Fry did not call Kevin Weable, Chris Lyons, Oscar Hernandez, or Wesley
    Gardner to testify at trial.

86. In connection with the instant writ, Applicant has failed to present any
    evidence as to the nature of the testimony that Weable, Lyons, Hernandez,
    or Gardner may have been able to provide. He has failed to present any
    evidence proving that they were available and willing to testify at
    Applicant‘s trial. This Court should not speculate that a particular witness
    may have had information that would have been persuasive before the jury.
    This Court should not speculate that these witnesses would have been
    available and willing to testify at Applicant‘s trial.

87. Applicant has failed to prove that Fry was ineffective in failing to
    investigate or present evidence from Weable, Lyons, Hernandez, or

                                      45
    Gardner.

                               Teresa Harry

88. Teresa Harry is the Applicant‘s half-sister. She was not called as a witness
    by the State or the defense in either phase of Applicant‘s trial.

89. At the evidentiary hearing on the instant writ, Harry testified that the
    complainant and her mother, Sharon Harbin Tobin were married in 1958 or
    1959 and were divorced in 1961. (WRR3:134). The complainant married
    Ginger Cole eleven years later, in 1971. (WRR3:134).

90. After the divorce, Harry continued to have contact with the complainant.
    (WRR3:135).       She ―saw him intermittently and on holidays.‖
    (WRR3:135). ―It was very happy.‖ (WRR3:136). Harry maintained
    contact with the complainant even after he married Ginger Cole.
    (WRR3:136-37).

91. Harry testified that, prior to his murder, the complainant admitted to her
    that he had been verbally and emotionally abusive to his first wife, Harry‘s
    mother. (WRR3:139–140, 156). The complainant did not describe what he
    did. (WRR3:156).

92. Harry testified that she never witnessed the complainant verbally or
    physically abuse her mother. (WRR3:137–38). Indeed, Harry was only
    able to corroborate the complainant‘s statements to a limited extent with
    her mother. (WRR3:140–41). Harry‘s mother would not share any detail
    with Harry about the abuse, but was adamant that no physical abuse ever
    occurred. (WRR3:141, 155–56, 175). Indeed, Harry‘s mother told Harry
    that she never would have let the complainant take Harry anywhere if she
    ever thought that the complainant was ―in any way physically violent.‖
    (WRR3:142).

93. Harry testified that she asked other family members about complainant‘s
    behavior as testified to and those family members denied the testimony.
    (WRR3:167).

94. Harry would not have been a favorable witness for Applicant‘s defense.
    Harry testified that she had a very good relationship with her father.
    (WRR3:136–37). The complainant did not abuse Harry verbally or

                                     46
    physically. (WRR3:137).        Harry believes that Applicant had no
    justification for his acts. (WRR3:171). During her testimony in the writ
    hearing, Harry became very emotional. (WRR3:166). She testified:

         (In response to a question from the trial court as to why she reached
         out to Applicant to participate in mediation) I wanted to know - - my
         thoughts had always haunted me about - - I‘m sorry - - about what
         must have been going through my dad‘s mind when he knew his only
         son was shooting him, was there a 15-second interval where he said,
         my God, my son is shooting me. I mean, you wanna know that
         someone didn‘t die alone on a dark dirt road, someone that you loved,
         no matter what people said they did. And so, I wanted to ask my
         brother why did you do this, and did he suffer?
         (WRR3:168).

95. Harry was involved in family interactions that included complainant and
    Applicant. (WRR3:135, 139).

96. Harry did not observe the complainant verbally or physically abuse
    Applicant, Candace or Julie. (WRR3:139). Harry was never told by
    Applicant or Applicant‘s other relatives that Applicant was being abused.
    (WRR3:157–158).

97. Even if Fry had tried to introduce Harry‘s testimony about what she had
    been told Smart would have objected on the grounds of relevance and
    hearsay. (WRR4:27).

                        Waxahachie Police Reports

98. Waxahachie Police received complaints that the complainant threatened
    Ginger Cole. (WRR5:51–52). Waxahachie Police took no action based on
    those complaints. (WRR5:52).

99. At trial, Ginger Cole attempted to testify regarding the aforementioned
    reports, but the trial court sustained Smart‘s objection that her testimony
    was non-responsive to Fry‘s questions. (RR2:322).

100. Fry did not introduce the police reports into evidence, but Ginger Cole and
     Candace Harbin all testified to the complainant‘s stalking behavior.



                                     47
101. At the evidentiary hearing on the instant writ, Applicant‘s step-father,
     George Cole, testified regarding the police reports. (WRR4:37). The
     complainant never threatened George or Ginger Cole with a weapon.
     (WRR4:46, 56). The complainant never committed an act of physical
     violence against the Coles.

102. At the writ hearing, Julie Badii testified that she never witnessed any
     threats herself. (WRR5:25–26).

103. The jury was well aware of the tension that existed between the
     complainant and Ginger Cole after their divorce. The jury was well aware
     of the complainant‘s behavior toward Ginger Cole after their divorce.

                                  Conclusion

104. After his arrest, Applicant gave a 17-page written confession to police.
     (RR1: 199-205; SX#3).

105. At trial, Fry argued that Applicant‘s confession should be suppressed. The
     Court conducted a lengthy hearing in connection with Fry‘s efforts to have
     the confession excluded. (RR1:76-161).

106. Fry called multiple witnesses during both phases of trial to testify to the
     complainant‘s mental illness and his violent and threatening behavior.

107. Applicant‘s arguments concern the punishment phase of trial, such that the
     evidence should have been presented in an effort to mitigate Applicant‘s
     punishment. As shown above, much of the complained-of evidence was
     presented during guilt/innocence. Notably, in its instructions during the
     punishment phase, the jury was instructed as follows:

         You are further charged that in fixing the defendant‘s punishment you
         may take into consideration all of the evidence submitted to you in the
         full trial of this case; that is, all of the evidence submitted to you in the
         trial of the first part of this case wherein you were called upon to
         determine the guilt or innocence of the defendant, and all of the
         evidence, if any, admitted before you in the second part of the trial
         wherein you are called upon to fix the defendant‘s punishment and
         you will be bound by the Charges of the Court covering both the first
         and second parts of this trial in determining what punishment shall be

                                       48
            given to the defendant.

           (CR:47).

  108. Applicant has not provided any credible or non-duplicative evidence to
       contravene Fry‘s trial strategy.

  109. Applicant has failed to prove that counsel‘s representation fell below an
       objective standard of reasonableness and there is a reasonable probability
       the results of the proceedings would have been different in the absence of
       counsel‘s errors. See Strickland v. Washington, 466 U.S. 668, 689 (1984);
       Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002).

  110. Applicant received effective assistance of trial counsel.

Conclusions of Law

  1. The Court concludes that Applicant has failed to prove that Fry‘s
     representation fell below an objective standard of reasonableness.

  2. Applicant has failed to prove the first prong of Strickland.

  3. The Court concludes that Applicant has failed to prove that the result of the
     proceedings would have been different.

  4. Applicant has failed to prove the second prong of Strickland.

  5. The fact that other counsel might have tried the case differently does not
     show ineffective representation. Ingham v. State, 679 S.W.2d 503, 509
     (Tex. Crim. App. 1984).

  6. Applicant has failed to prove that Fry rendered ineffective assistance.

  7. The Court recommends that these grounds for relief be denied.




                                        49
                        GROUND TWO: BRADY VIOLATION

      In his second ground for relief, Applicant contends that Smart committed a

Brady violation. Specifically, he contends that Smart suppressed the following

evidence: (1) records of Candace Harbin‘s medical treatment; (2) a letter from Dr.

Pearson regarding the complainant‘s mental illness; (3) information from Teresa

Harry that the complainant was verbally abusive toward his ex-wife, Harry‘s

mother; (4) information from Wesley Gardner that the complainant beat Applicant

with a broomstick; (5) information from Matt Tobin that there were rumors at

school that the complainant was abusive; and (6) that a report had been filed with

the Waxahachie Police Department that the complainant had threatened George

and Ginger Cole.

Applicable Law

      The State has an affirmative duty to disclose all material, exculpatory

evidence to the defense under Brady v. Maryland, 373 U.S. 83, 87 (1963). To

establish a Brady claim, a habeas applicant must demonstrate that (1) the

prosecution suppressed evidence, (2) the evidence was favorable to the applicant,

and (3) the evidence was material. United States v. Bagley, 473 U.S. 667, 682

(1985); Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993).

      Favorable evidence is evidence which, ―if disclosed and used effectively,

‗may make the difference between conviction and acquittal;‘‖ it includes



                                       50
exculpatory and impeachment evidence. Pena v. State, 353 S.W.3d 797, 811 (Tex.

Crim. App. 2011) (citing Bagley, 473 U.S. at 676) (emphasis in original). Evidence

is material if there is a reasonable probability that, had the evidence been disclosed

to the defense, the outcome of the proceeding would have been different. See

Bagley, 473 U.S. at 682; see also Thomas v. State, 841 S.W.2d 399, 404 (Tex.

Crim. App. 1992).       A reasonable probability is a probability sufficient to

undermine confidence in the outcome.       Bagley, 473 U.S. at 682. Materiality is

evaluated by considering the withheld evidence in the context of the entire record

and the overall strength of the State‘s case. See Thomas, 841 S.W.2d at 404-05.

―The mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the trial, does not establish

‗materiality‘ in the constitutional sense.‖ United States v. Agurs, 427 U.S. 97, 109-

110 (1976).

Findings of Fact

   1.   At the time of trial, the Dallas County District Attorney‘s Office did not
        maintain an open file policy.

                        Candace Harbin’s Medical Records

   2.   At the time of trial, the State was in possession of certain medical records
        belonging to Applicant‘s sister, Candace Harbin. (WRR3:67).

   3.   Candace Harbin‘s records provide that when she was admitted to the
        hospital, she told medical personnel that the complainant was threatening
        and abusive. This information is favorable to Applicant‘s defense.



                                         51
4.   Smart testified that he did not subpoena the complained-of medical records.
     (WRR3:63). Smart testified that he ―didn‘t get those records on my own.
     Somebody from the defense gave them to me, whether it was Ginger Cole,
     whether it was Candace, or whether it was Matt Fry.‖ (WRR3:62).

5.   Smart testified that he did not give Fry a copy of Candace‘s medical
     records. (WRR3:62). He testified as follows:

          I don‘t - - I don‘t know why I would have because to the best of my
          recollection, if I had gotten them from the family, then I would‘ve
          made the assumption that they would‘ve given them to him or he may
          have been the one that gave them to me.

         (WRR3:62).

6.   Smart recalled reviewing Candace‘s medical records. (WRR3:62).

7.   Smart testified that he spoke with Candace prior to trial. (WRR3:58).
     Smart described that Candace was ―sympathetic to [Applicant]‖ and ―a
     little bit hostile toward me.‖ (WRR3:59). Candace only told Smart of the
     ―the incident where the [complainant] had hit [Applicant] on one
     occasion.‖ (WRR3:59).

8.   Fry‘s notes reflect that Ginger Cole delivered some information regarding
     various parties‘ mental state to Fry. (WRR5:56, DX2:2).

9.   At the evidentiary hearing on the instant writ, Fry testified that he does not
     recall whether that he received or reviewed the instant records.
     (WRR2:33). Fry received substantial support from Applicant‘s family.
     (WRR2:34). Fry did not recall the conversations that he had with Ginger
     Cole regarding the complainant‘s mental illness. (WRR2:34).

10. Applicant has not met his burden of proving by a preponderance of the
    evidence that the complained-of information was not disclosed to the
    defense.

11. Moreover, Applicant has failed to prove that Fry did not already have the
    complained-of records in his possession.

12. Even assuming the records were suppressed, Applicant has failed to prove

                                      52
    that that the information was material. Notably, as discussed in detail
    above, Candace Harbin testified at length during both phases of
    Applicant‘s trial and provided details regarding the complainant‘s
    threatening and abusive behavior. Thus, the information contained within
    the medical records was known to the defense and presented at trial.

13. Applicant has failed to prove that disclosure of records containing more of
    the same information already known to the defense would have changed
    the outcome of the proceeding.

                            Dr. Pearson’s Letter

14. At the time of trial, the State was in possession of a letter written by Dr.
    Pearson regarding the complainant. This letter is substantially the same as
    the letter Applicant‘s Exhibit #11. The letter was located within the
    complainant‘s employment records from the United States Postal Service.
    (See DX#3).

15. Smart testified that when he learned that the complainant suffered from
    depression, that is when he ―got the records from the post office.‖
    (WRR3:70). ―[T]here wasn‘t anything in the reports that indicated any
    signs that he had aggression. All the records told me was that when Mr.
    Harbin went through his manic depressive states that he was incapacitated.
    I mean, he didn‘t do nothing, he just laid around and watched TV and
    hardly ever got up.‖ (WRR3:70).

16. Dr. Pearson‘s letter describes that the complainant suffers from depression
    and anxiety and ―was somewhat schizoid in personality. He also had a
    tendency to show some paranoid personality.‖ (DX#3). The letter
    described that the complainant ―had a tendency to be manic depressive in
    his behavior.‖ (DX#3). ―When he would get depressed, he would become
    very angry, hostile, somewhat withdrawn, and experience loss of energy,
    loss of drive, and become somewhat obstinant [sic].‖ (DX#3). There is no
    information contained within the letter that describes the complainant as
    violent or abusive.

17. Smart testified that he could not recall ever learning that the complainant
    suffered from mental illness beyond depression. (WRR3:66-67). He
    testified as follows:



                                     53
         I don‘t—I don‘t—I don‘t think I called [the doctors]. I think I went
         basically off of their reports and saw what their reports said, so there
         wasn‘t any reason for me to contact them.

         Because there wasn‘t anything in the reports that indicated any signs
         that he had aggression. All the records told me was that when [the
         deceased] went through his manic depressive states that he was
         incapacitated. I mean, he didn‘t do nothing, he just laid around and
         watched TV and hardly ever got up.

         (WRR3:72).

18. At the evidentiary hearing, Fry testified that he did not recall whether he
    sought out the complainant‘s postal records or whether he received the
    documents from any source. (WRR5:27).

19. At the evidentiary hearing, habeas counsel asked whether the
    complainant‘s post office retirement records were ―the sort of thing you
    would‘ve shown to [Fry]?‖ (WRR3:56). Smart testified that he ―wouldn‘t
    have known why I would‘ve shown him - - shown him these records.‖
    (WRR3:56). Notably, defense counsel did not ask him specifically about
    the letter from Dr. Pearson contained within the postal records.

20. Applicant has failed to prove by a preponderance of the evidence that Dr.
    Pearson‘s letter was suppressed.

21. Applicant has failed to prove that Dr. Pearson‘s letter was favorable.

22. Applicant has failed to prove that Dr. Pearson‘s letter was material.

23. Because Applicant was aware of the complainant‘s mental illness,
    Applicant fails to prove that disclosure of the Dr. Pearson‘s letter would
    have changed the outcome of the proceeding.

                                Teresa Harry

24. At the evidentiary hearing on the instant writ, Harry testified that the
    complainant told her that he was abusive toward his ex-wife, her mother.
    (WRR3:139-40, 156). Neither the complainant nor Harry‘s mother gave
    Harry specific details regarding the abuse. (WRR3:156). As such, Harry

                                      54
    had extremely limited information to provide on this subject. (WRR3:155-
    56).

25. Harry testified that she never saw the complainant abuse her mother.
    (WRR3:167-68).

26. Harry informed Gary Smart of the deceased‘s depression and the effects of
    that depression. (WRR4:13).

27. Harry could not recall whether she told Smart that the complainant verbally
    abused her mother and she could not recall whether he asked. (WRR3:163,
    164).

28. Smart reviewed his notes and testified that he did not recall ―anything
    being mentioned about - - anything between Mr. Harbin, Sr., and his first
    wife.‖ (WRR4:9). Smart testified that he ―didn‘t get anything from her
    that indicated that she had ever seen any violent tendencies on his behalf or
    on behalf of him, even towards his mom - - or towards her mom.‖
    (WRR3:13).

29. It is impossible for Smart to suppress information that he is not aware of
    and does not have in his possession.

30. Further, Applicant has failed to prove that this information was material.
    The alleged abuse concerns the complainant‘s ex-wife. He was married in
    1958 or 1959 and divorced in 1961. That the complainant may have
    verbally have abused his ex-wife does not prove that the complainant
    abused his child nearly thirty years later. Indeed, if Fry had attempted to
    introduce any evidence on this subject, the trial court would have properly
    sustained the State‘s objection and excluded it. As such, this information,
    if disclosed, would not have changed the outcome of the proceeding.

                 Wesley Gardner: the Broomstick Incident

31. Prior to trial, Gary Smart interviewed Applicant‘s friend, Wesley Gardner.
    (WRR4:14–15). Gardner informed Smart that the complainant had beat
    Applicant with a broomstick. (WRR4:14–15).

32. Smart also interviewed Applicant‘s friend, Matt Tobin, who informed
    Smart that Gardner had not been around Applicant for the year and a half

                                     55
    preceding the murder. (DX#6:6, 4-8-91:4:10 pm).

33. Smart could not recall whether he informed Fry about Gardner‘s story, but
    he thought they had some conversation ―about that broomstick.‖
    (WRR4:16-17). Smart testified that he did not document every
    conversation he had with Fry. (WRR4:16–18).

34. Applicant has failed to prove by a preponderance of the evidence that this
    information was suppressed.

35. Applicant did not present testimony or an affidavit from Wesley Gardner.

36. Applicant has failed to prove that the complained-of information was
    material. Smart testified that he did not believe that the incident with the
    broomstick was an incident that Gardner observed. (WRR4:23). As such,
    it was hearsay. (WRR4:23). Indeed, if Fry had attempted to introduce any
    evidence on this subject, the trial court would have properly sustained the
    State‘s objection and excluded it. As such, this information, if disclosed,
    would not have changed the outcome of the proceeding.

                                 Matt Tobin

37. Matt Tobin told Smart that Applicant had told him that Applicant had
    gotten in ―fights‖ with the complainant. (DX#6:6). Smart‘s notes do not
    specify whether Tobin was describing verbal or physical fights. Smart
    called Tobin to testify at trial. Tobin testified that he did not witness any
    confrontations between the complainant and Applicant. (RR1:67–68).

38. Applicant contends that the State failed to disclose the fact that Tobin told
    Smart that the complainant had gotten into a fight with Applicant and that
    there were rumors around school that the complainant was abusive.

39. Applicant did not present testimony or an affidavit from Matt Tobin. He
    did not present evidence of any rumors that the complainant was abusive.

40. Applicant has failed to prove by a preponderance of the evidence that the
    State suppressed exculpatory evidence.




                                     56
                         Waxahachie Police Reports

41. At the evidentiary hearing, George Cole testified that the complainant
    would call Ginger Cole and threaten ―that he‘s going to kill her and kill me
    both if he didn‘t get his family back.‖ (WRR4:47). After the calls, the
    Coles would contact the Waxahachie Police Department and report it.
    (WRR4:46-47).

42. Ginger Cole testified that she told Fry about the police reports prior to trial.
    (WRR5:58). Ginger Cole attempted to make a statement about the records
    in court but was stopped by Smart for being non-responsive to Fry‘s
    questions. (RR2:322)

43. George Cole informed Smart that Waxahachie Police had police records
    concerning the complainant. (WRR4:37, 51-52).

44. According to Smart‘s notes, Steve Collier of the Waxahachie Police
    Department informed Smart that the Department had police records
    concerning the threats made by the complaint to Ginger and George Cole.
    (DX#6:11).

45. Ginger Cole informed Fry of the existence of the police records.
    (WRR5:57–59).

46. Applicant has failed to prove by a preponderance of the evidence that
    Smart failed to disclose his knowledge of the reports to Fry.

47. Applicant has failed to prove that this information is material. As
    previously argued, Ginger Cole attempted to testify about the reports at
    trial, but Smart objected that she was non-responsive to Fry‘s question.
    (RR2:322). Smart‘s objection was sustained. (RR2:322). As such, the
    complained-of information would not have changed the outcome of the
    proceeding.

                                  Conclusion

48. Applicant has failed to prove by a preponderance of the evidence that the
    State suppressed exculpatory evidence.

49. Neither Fry nor Smart has any specific recall as to the nature of any

                                       57
      specific disclosures. The witness‘ degraded memories do not constitute
      affirmative evidence of a Brady violation.

  50. Given the passage of so much time, Smart does not recall what he disclosed
      to Fry. Smart testified as follows:

           I can remember him coming in the office and sitting next to my desk
           and reviewing the file before trial. But exactly what all he looked at, I
           don‘t know.

           (WRR3:56). Smart testified that even if he did not provide a copy of
           a document, he may have let Fry look at it. (RR3:56).

  51. Smart testified that when he was assigned Applicant‘s case he looked for a
      motive for the murder. He testified that ―when I was - - got this file and
      looked through the file, that‘s what I was looking for. I was looking for
      something to indicate to me as to some type of abuse on the part of - - that
      Mr. Harbin, James Harbin, or some mitigating circumstance that would
      justify him waking his dad up and - - shooting him - -[.]‖ (WRR3:61). He
      found no evidence of abuse beyond the one incident Candace described
      when the complaint ―knocked [Applicant] over the back of the couch or
      something.‖ (WRR3:61, 68).

  52. If Smart had found mitigating circumstances during his investigation, it
      ―would‘ve significantly affected my offer.‖ (WRR3:69)

  53. In any event, Applicant has failed to prove that any of the information
      allegedly suppressed was material. As discussed in detail above, the jury
      was well aware of the complainant‘s mental illness and Applicant‘s claims
      of abuse. Applicant has failed to show that admission of this additional
      evidence would have changed the outcome of the proceeding.

  54. Applicant has failed to prove that the State suppressed exculpatory
      information.

Conclusions of Law

     1. Applicant has failed to prove that any evidence was suppressed, much
        less that that evidence was favorable or material.



                                       58
      2. The Court recommends that Applicant‘s second ground for relief be
         denied.

                              OTHER GROUNDS

      This Court finds that all grounds for relief not specifically addressed herein

are without merit and should be denied.

                                 CONCLUSION

   1. This Court concludes that Applicant has not been denied any rights
      guaranteed him by the United States Constitution and the Texas
      Constitution.

   2. This Court concludes that Applicant is lawfully restrained.

   3. This Court concludes that Applicant‘s Application for Writ of Habeas
      Corpus is totally without merit.

   4. This Court recommends that relief be DENIED on Applicant‘s habeas
      application.




                                          59
                          WRIT NO. W91-22107-Q(A)


EX PARTE                                 §          IN THE 204th JUDICIAL

                                         §          DISTRICT COURT

JAMES BERKELEY HARBIN II                 §          DALLAS COUNTY, TEXAS


                         ORDER ADOPTING
                STATE’S PROPOSED FINDINGS OF FACT
                AND CONCLUSIONS OF LAW AND ORDER



      The Court hereby adopts and incorporates herein the above proposed
findings of fact and conclusions of law submitted by the State in Ex parte James
Berkeley Harbin II.


      The Clerk is hereby ORDERED to:


   1. Prepare a transcript of all papers in this cause and transmit the Court‘s
      Findings and Order, including the judgment, sentence, indictment,
      docket sheets, and other exhibits and evidentiary matters filed in the
      trial records of this cause, to the Court of Criminal Appeals as
      provided by Article 11.07 of the Texas Code of Criminal Procedure.


   2. Send a copy of the Findings of Fact and Conclusions of Law, and the
      Order thereon, to Applicant‘s counsel and to counsel for the State by
      depositing the same in the United States mail.




                                         60
    BY THE FOLLOWING SIGNATURE, THE COURT ADOPT’S THE
STATE’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW IN CAUSE NO. W91-22107-Q(A).


    SIGNED AND ENTERED THIS _____ day of _________________, 2014.



                               __________________________________
                                                  Judge Lena Levario
                                              th
                                           204 Judicial District Court
                                                 Dallas County, Texas




                               61
                                                Respectfully submitted,



                                                _________________________
Craig Watkins                                   Christine Womble
Criminal District Attorney                      Assistant District Attorney
Dallas County, Texas                            State Bar No. 24035991
                                                Frank Crowley Courts Building
                                                133 N. Riverfront Blvd., LB-19
                                                Dallas, Texas 75207-4399
                                                (214) 653-3625
                                                (214) 653-3643 (fax)




                    CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing document contains 12,873 words,
inclusive of all content.


                                                __________________________
                                                Christine Womble



                       CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing document was served on
Applicant‘s counsel, Gary Udashen, via email on December 10, 2014.


                                                _________________________
                                                Christine Womble




                                      62
