           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-78,545-02



                   EX PARTE DAVID MARK TEMPLE, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                     IN CAUSE NO. 1008763-A FROM THE
                178TH DISTRICT COURT OF HARRIS COUNTY

       Y EARY, J., filed a concurring opinion.

                               CONCURRING OPINION

       This is a post-conviction application for writ of habeas corpus challenging Applicant’s

conviction for the murder of his wife, brought pursuant to Article 11.07 of the Texas Code

of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 11.07. The habeas court conducted an

extensive evidentiary hearing on the writ application, spanning twenty-four days over the

course of two-and-a-half months, and has recommended that we grant Applicant a new trial.

We filed and set the application on a number of claims, including: 1) claims predicated on

Brady v. Maryland, 373 U.S. 83 (1963), upon which the habeas court recommends that we

grant relief; 2) claims of ineffective assistance of counsel under Strickland v. Washington,
                                                                                       TEMPLE — 2


466 U.S. 668 (1984); and 3) a claim of actual innocence under this Court’s opinion in Ex

parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Ultimately, I would not grant relief

on the basis of Applicant’s Brady claims, as the trial court has recommended and the Court

does today. Nevertheless, I would sustain one of Applicant’s claims of ineffective assistance

of trial counsel. In explaining why, I will recount many of the circumstances giving rise to

Applicant’s Brady claims because they set the backdrop for my conclusion that trial counsel’s

deficient performance undermines confidence in the outcome of Applicant’s trial.

                                 I. PROCEDURAL HISTORY

        On the afternoon of January 11, 1999, Belinda Temple was murdered by a single shot

to the back of her head with a twelve-gauge shotgun as she knelt in the walk-in closet off of

the master bathroom of her home in Katy.1 She was seven months’ pregnant at the time.

When investigators with the Harris County Sheriff’s Office discovered that her husband,

Applicant, was having an extramarital relationship with one of his co-workers at one of the

local high schools, he became a major focus of their investigation. In March and April of

1999, prosecutors took the case to a grand jury. They produced a dozen witnesses, but they

did not ask the grand jury to return an indictment at that time. And indeed, the evidence

against Applicant, while it raised serious suspicions, was not overly compelling. There was



       1
          A firearms examiner testified at trial that the diameter of the wadding from the shotgun shell
used to murder Belinda was “consistent with a 12-gauge more than any other gauge” of shotgun
shell. It has not been seriously disputed at any stage of these proceedings that the murder weapon
was a twelve-gauge shotgun.
                                                                                        TEMPLE — 3


some question whether he had been at home at the time of the murder, since he was seen with

his and Belinda’s three-year-old son, ET (hereinafter, “ET”), on the security videotape of a

local supermarket either as, or at least soon after, the murder is most likely to have taken

place.2 Moreover, the grand jury also heard testimony about the Temples’ next-door

neighbor, RJS, III (hereinafter, “RJS”), a sixteen-year-old boy who was a student at the high-

school where Belinda worked as a tutor and special-needs instructor.3 Belinda had recently

reported to RJS’s parents that RJS had been habitually skipping classes, among other minor

infractions, and RJS admitted to the grand jury that he had been home alone, asleep on the

couch, at the time of the murder.

        Five years later, in the summer of 2004, the case was called to the attention of a

prosecutor in the cold-case division of the Harris County District Attorney’s office. By this

time, Applicant had married Heather Scott, the object of his 1999 extramarital relationship.

Without presenting any new evidence to the grand jury, the prosecutor obtained a murder

indictment against Applicant and had him arrested.4 When the defense attorney hired by



        2
         The time-stamp on a security video from the supermarket indicated that Applicant arrived
there with ET at 4:32 p.m.
        3
            Belinda worked at a different high school than Applicant.
        4
          Applicant knew that Belinda was pregnant, of course. As of 1999, however, the Legislature
had not yet provided that the murder of a pregnant woman was a capital offense. See Acts 2003, 78th
Leg., ch. 823, § 2.01, p. 2608, eff. Sept. 1, 2003 (amending Penal Code Section 1.07(26)’s definition
of “individual” to include “an unborn child at every stage of gestation from fertilization until birth”);
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (recognizing the 2003 legislative
amendment authorizing capital prosecution for the murder of a mother and her fetus).
                                                                                        TEMPLE — 4


Applicant’s family almost immediately requested an examining trial for Applicant, the

prosecutor responded by closing the State’s file to him, as was the Harris County District

Attorney’s unofficial office policy at that time. From that point on, the prosecutor provided

defense counsel with nothing more than the limited discovery to which Applicant was

minimally entitled under the law.5 As for Brady material, the tenor of the testimony of both

the prosecutor and her second chair at the writ hearing was that they felt duty bound to

disclose exculpatory or impeaching information only if they believed it to be true; if they felt

confident that the sheriff’s investigators had satisfactorily ruled out an alternative suspect,

they did not believe they were obligated to disclose information about the investigation of

that alternative suspect to the defense under Brady.6 Thus, while Applicant’s family

conveyed to defense counsel their belief that RJS was a viable suspect, the State did nothing

at any time prior to Applicant’s trial to alert defense counsel to the full extent of law

enforcement’s investigation into RJS’s possible involvement in Belinda’s murder.



        5
          Prior to the passage of the Michael Morton Act in 2013, “Texas law gave a defendant the
right to no more discovery than due process requires.” Gerald S. Reamey, The Truth Might Set You
Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or
Not, 48 TEX . TECH . L. REV . 893, 898 (2016).
       6
         Asked whether the State should reveal information about an alternative suspect prior to trial,
the second chair prosecutor replied, “Not if you run it down and there’s no validity to it, then it is
not something that needs to be disclosed.” The first chair prosecutor testified similarly that she was
not obligated to turn over information seemingly favorable to the defense if in her estimation it was
“ridiculous.” She went so far as to assert that it was her “job” to “stand up for” an alternative suspect
like RJS if she believed he was being “wrongfully accused.” She insisted that “[t]here is a line you
have to draw in your own mind ethically where you quit accusing a 16-year-old boy of committing
a capital murder.”
                                                                                   TEMPLE — 5


       Applicant’s trial commenced in October of 2007, lasting approximately five weeks.

In his opening statement to the jury before any evidence was presented, defense counsel

made no mention of an alternative suspect. Instead, he emphasized that Applicant simply

could not have had enough time to perpetrate the murder given the time-line he expected the

evidence to reveal. The State’s theory of the case was that Applicant was motivated to

murder Belinda in order to pave the way to marry Scott; and that he staged a burglary to

make it appear as if she had been killed by an intruder while he was out running errands with

ET.7 Somewhere along the way he successfully disposed of the twelve-gauge shotgun he

used to kill Belinda, according to the State’s theory, and no weapon was ever found that was

definitively shown to be the murder weapon. Although Applicant had owned a shotgun as

a teenager, the parties disputed the gauge of that shotgun and, in any event, it was undisputed

that Applicant no longer possessed that particular shotgun at the time of the offense. Also

critical to the State’s case was the inference that any other perpetrator besides Applicant

would have caused the Temples’ dog, Shaka, an aggressive chow, to raise a ruckus in the

back yard (the purported point of entry having been the back door) and alert the whole

neighborhood. Applicant rebutted this inference with substantial evidence, including his own


       7
         Because ET was running a low fever on the day of the offense, Belinda left school early to
fetch him from his day care center and take him home. She then called Applicant to come tend to
ET while she returned to school for an important meeting. She was murdered after she returned home
from that meeting, but not before she stopped at her in-laws’ house to pick up a batch of homemade
chicken soup for ET. By the time she arrived home, ETwas feeling much better. At trial, the parties
stipulated that a subsequent psychological examination revealed “no evidence that ET had been a
witness to the murder.”
                                                                                  TEMPLE — 6


testimony, that he had left Shaka in the stand-alone garage while out running errands—not

in the back yard, as the State’s theory assumed.

       Defense counsel began to discover the scope of the State’s investigation of RJS early

in the course of the trial, as sheriff’s investigators testified and defense counsel was permitted

to review their offense reports in preparing for cross-examination. He was also allowed to

review the earlier grand jury testimony of those trial witnesses who had testified before the

1999 grand jury. By the seat of his pants, he began to develop a supplemental defensive

theory (not inconsistent with his original defensive theory) that—as he ultimately argued to

the jury in his final summation at the guilt stage—the evidence that RJS committed the

offense, while admittedly sketchy, was nevertheless more substantial than the evidence of

Applicant’s guilt.

       Most importantly, defense counsel was able to show that RJS had access to a

Harrington & Richardson (hereinafter, “H & R”) break-open twelve-gauge shotgun. This

shotgun belonged to RJS’s father. When it was recovered, it contained an expended shotgun

shell. Before it had been fired, this shell had been “reloaded”—that is to say, it was not as

originally manufactured, but had been re-packed by hand. The State’s experts had concluded

that the shotgun shell used to murder Belinda had been similarly reloaded. RJS’s father

possessed a number of these reloaded shells after the murder, but those were found to contain

wadding that was different than the wadding from the reloaded shell used to kill Belinda (and

recovered from the floor of the walk-in closet where her body was found). In short, while it
                                                                                      TEMPLE — 7


was never demonstrated that the H & R shotgun was the actual murder weapon, defense

counsel was able to argue to the jury that RJS had access to the closest thing to the murder

weapon that any investigation had yet revealed. Having learned as well during trial that

Belinda had reported RJS’s truancy to his parents, defense counsel was also able to suggest

to the jury that RJS had a substantial, albeit not particularly compelling, motive to kill her.

       To a limited extent, defense counsel used the late-disclosed offense reports to impeach

the testimony of the sheriff’s detectives who claimed ultimately to have been “satisfied” that

RJS was not the perpetrator.8 Moreover, defense counsel used information gleaned from both

the offense reports and RJS’s own earlier grand jury testimony to cross-examine RJS when

he took the stand as the State’s only rebuttal witness at the end of the guilt phase of evidence

to deny having killed Belinda. The jury found Applicant guilty after deliberating for more

than a full day.9 It later assessed him a life sentence.

       The major thrust of Applicant’s direct appeal was to challenge the sufficiency of the



       8
         These offense reports revealed that RJS was questioned by various sheriff’s investigators
as many as seven times, giving a number of oral statements and two written statements. He was
subjected to two polygraph tests, both of which showed signs of deception when he was asked about
his involvement in Belinda’s murder. He eventually refused to submit to a third polygraph. In spite
of these circumstances as detailed in his offense report, Detective Charles Leithner pronounced
himself “satisfied” at trial that RJS did not kill Belinda. Defense counsel was prevented from
introducing evidence of RJS’s failed polygraphs, and Applicant did not complain of this ruling on
appeal. But defense counsel was permitted to show that RJS was questioned repeatedly by the
investigators and that, at one point, Leithner told RJS’s parents that RJS could not be ruled out as
a suspect until his story could be corroborated.
       9
        The docket sheet reflects that the jury was retired to deliberate at 2:47 p.m. on November
14, 2007, excused for the evening at 4:45 p.m., and then returned its verdict the next day at 4:25 p.m.
                                                                                     TEMPLE — 8


evidence, both legally and factually, to show that he murdered his wife. While his appeal was

pending, however, this Court eliminated factual sufficiency from the Texas criminal justice

lexicon, to the dismay of two members of the Fourteenth Court of Appeals who were inclined

to believe that the evidence against Applicant was factually insufficient. See Temple v. State,

342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010).10 The court of appeals concluded

that the evidence was legally sufficient, over the dissent of one justice on denial of rehearing

en banc who believed otherwise.11 On petition for discretionary review, this Court ultimately

affirmed the court of appeals’s judgment that the evidence was legally sufficient. Temple v.

State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013).12

       Applicant also complained on direct appeal about the late disclosure of the


       10
         Justice Seymore authored the panel opinion holding the evidence legally sufficient. Temple,
342 S.W.3d at 581-619. But he also authored a separate concurring opinion, decrying the panel’s
acquiescence to the plurality and concurring opinions of this Court in Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010), which a few months earlier had abandoned factual sufficiency review.
       11
           Justice McCally, who was not a member of the original panel, authored an impassioned
dissent to the denial of rehearing en banc, urging the court of appeals to hold that the evidence was
legally insufficient. Temple, 342 S.W.3d at 628-46. Justice Seymore weighed in again, writing a
separate dissent to the denial of en banc rehearing. He disagreed with Justice McCally’s conclusion
that the evidence was legally insufficient, but he opined that, for essentially the same reasons that
Justice McCally concluded that the evidence was legally insufficient, he would hold that it was
factually insufficient. Id. at 646-59. He was joined by Justice Anderson.
       12
          The majority opinion of the court of appeals panel, the separate opinions on the denial of
rehearing en banc, and the opinion of this Court on discretionary review, all engaged in lengthy and
meticulous recitations of the evidence. Though I have studied both the entire record of the appeal
as well as the lengthy hearing on Applicant’s writ application, I do not recite the facts in quite the
same level of detail in this opinion. For present purposes, I must limit my fact recitation to those
details most pertinent to Applicant’s particular post-conviction claims. For the full flavor of how
painstaking the legal sufficiency analyses were in this case, however, I refer the reader to those
various recitations. Our discretionary review was limited to Applicant’s sufficiency claims.
                                                                                     TEMPLE — 9


information with respect to the State’s investigation of the alternative suspect, RJS. He

argued that the delayed disclosure violated his right to due process under Brady. The court

of appeals rejected this point of error for two reasons. First, it held that Applicant had

procedurally defaulted this claim. Temple, 342 S.W.3d at 591. Because defense counsel did

not formally seek a continuance until three weeks after the offense reports began to come to

light, well into his presentation of defensive evidence and near the end of the guilt phase of

the trial, the court of appeals held that he forfeited his right to complain, under this Court’s

precedent in Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). Id.13 Alternatively,

the court of appeals held that, because Applicant was able in any event to effectively present

the untimely disclosed facts, there was not “ a reasonable probability that the outcome of the

trial would have been different had the State disclosed these facts earlier.” Id. at 592.

Applicant did not challenge this holding in his petition for discretionary review, and we had

no occasion to address it in our opinion.14


       13
            The Court’s opinion today does not address this aspect of the court of appeals’ holding.
       14
           Applicant also claimed on appeal that the first chair prosecutor engaged in numerous
instances of prosecutorial misconduct during the course of the trial. The court of appeals agreed with
many though not all of these claims but concluded that, on balance, her misconduct did not operate
to deprive Applicant of a fair trial. Temple, 342 S.W.3d at 592-619. These numerous claims were
not embraced within the scope of our discretionary review, which was limited to Applicant’s
sufficiency claims. To a large extent, Applicant’s present post-conviction writ application continues
to dwell on the prosecutor’s conduct and her character. While I do not condone some of the
prosecutor’s actions in this case, I find Applicant’s focus on her conduct and character largely to
distract from the genuine issue under Brady, namely, whether Applicant was ultimately deprived of
favorable evidence that might realistically have made a difference to the outcome of his trial. After
all, the bedrock “principle” that undergirds Brady “is not punishment of society for the misdeeds of
a prosecutor but avoidance of an unfair trial to the accused.” Brady, 373 U.S. at 87 (citing Mooney
                                                                                       TEMPLE — 10


        Applicant raises a number of issues in his post-conviction application for writ of

habeas corpus, most prominent of which is his renewed Brady claim.15 Unfortunately, in

neither his writ application nor during the extensive habeas evidentiary hearing has Applicant

adequately distinguished information that he claims was belatedly disclosed during trial

(hereinafter, “late-disclosed evidence”) from information that he alleges was not disclosed

until after trial (hereinafter, “undisclosed evidence”). To a significant extent, he continues

to complain of the late disclosure rather than of any non-disclosure. Even though defense

counsel reviewed many of the offense reports during trial and put much of it to effective use,

Applicant contends that there were other bits of exculpatory or impeaching evidence

embedded in them that defense counsel simply missed because of the conditions under which

he was compelled to review them.16 In essence, Applicant argues that, while defense counsel


v. Holohan, 294 U.S. 103 (1935)).
        15
          To the extent that Applicant is now complaining of late-disclosure of the same information
that he complained about on direct appeal, the court of appeals’ disposal of that issue, which we had
no occasion to examine on discretionary review, has become law of the case. Thus, the court of
appeals’ holdings that Applicant’s Brady complaint was procedurally defaulted and that,
alternatively, the particular information he claimed on appeal that the State suppressed was not
material, those holdings have become binding. See George E. Dix & John M. Schmolesky, 43B
TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 59:13, at 822 (3rd ed. 2011) (“The
doctrine of the ‘law of the case’ clearly limits . . . efforts to use habeas to relitigate issues already
resolved on appeal. The direct appeal and subsequent application for habeas relief are the same
‘case’ for purposes of this doctrine, and consequently the law of the case doctrine generally bars
reconsideration of issues of law resolved in the appeal.”) (footnotes omitted). Neither Applicant nor
the Court today attempts to explain why the court of appeals’ holdings with respect to procedural
default and materiality should not be final—at least to the extent that Applicant continues to
complain of suppression of the same evidence that formed the basis of his appellate complaint.
        16
          At the writ hearing, defense counsel testified, for example, that he was given about an hour
to review the nearly 100 page offense report of Detective Leithner while sitting in the courtroom with
                                                                                      TEMPLE — 11


was able to put to some good use the late-disclosed information, he was not able to put it to

its optimal use, as he would have had the information been revealed to him prior to trial.

Defense counsel was handicapped, Applicant concludes, by having to investigate even as he

was having to litigate.

       In its proposed findings of fact and conclusions of law, in which it has recommended

that we grant relief on the basis of Brady, the habeas court has likewise largely failed to

distinguish late-disclosed evidence from undisclosed evidence.17 The habeas court has

nonetheless concluded, albeit “not without some doubt,”18 that Applicant was “denied a fair

trial because of the State’s failure to disclose or timely disclose favorable evidence; and had

that evidence been disclosed or disclosed timely, the results of the trial would have been

different.” For reasons I will develop at some length, I share the habeas court’s doubt.

Ultimately, though, while I agree that we should grant Applicant a new trial, I would not base

our ruling on his Brady claims. Instead, I would base our holding on one of Applicant’s

claims of ineffective assistance of counsel (though that ineffectiveness may very well have


one of the prosecutors hovering over him. Defense counsel later introduced Leithner’s offense report
as an exhibit in support of his motion for continuance, and the trial court admitted it for record
purposes, so it was a part of the appellate record in the court of appeals.
       17
           The judge who presided over the writ hearing is not the same judge who presided over
Applicant’s trial. After we filed and set this cause for submission, the State filed a motion in this
Court to supplement the record with an affidavit from the judge who presided over the trial in 2007,
expressing his disagreement with the habeas court judge’s recommendation that we grant Brady
relief in this cause. Applicant, in turn, filed a motion to strike the State’s motion. We denied both
motions on May 18, 2016.
       18
            I take this phrase verbatim from the habeas court’s findings of fact and conclusions of law.
                                                                               TEMPLE — 12


been a regrettable by-product of the fact that defense counsel was forced to

investigate—even as he was trying to litigate—the case).

                                         II. BRADY

                                  A. The Legal Standard

       The United States Supreme Court has expanded upon its 1963 decision in Brady to

hold that a defendant suffers a due process violation if the State or one of its surrogates,

whether willfully or not, 1) fails to disclose evidence that 2) is favorable to the defense

(either because it is exculpatory or because it impeaches) and 3) is material in the sense that,

had it been timely disclosed to the defense, there is a reasonable probability that the result

of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280-82

(1999). “Reasonable probability” in this context does not mean “the defendant would more

likely than not have received a different verdict with the evidence,” but instead means that,

having been deprived of the evidence, the defendant did not receive “a fair trial, understood

as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434

(1995). It is important to bear in mind that the materiality inquiry “is not a sufficiency of

evidence test.” Id. “A defendant need not demonstrate that after discounting the inculpatory

evidence in light of the undisclosed evidence, there would not have been enough left to

convict.” Id. It is enough to establish a reasonable probability of a different result “when the

[State’s] evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id.
                                                                                 TEMPLE — 13


(citing United States v. Bagley, 473 U.S. 667, 678 (1985)).19 As part of this consideration,

“the reviewing court may consider directly any adverse effect that the prosecutor’s [non-

disclosure] might have had on the preparation or presentation of the defendant’s case.”

Thomas v. State, 841 S.W.2d 399, 405 (Tex. Crim. App. 1992) (quoting Bagley, 473 U.S. at

683 (plurality opinion)). Moreover, materiality is to be assessed “collectively, not item by

item.” Kyles, 514 U.S. at 436.

       We have said that, to constitute a Brady violation, the State’s suppression must have

resulted in the denial of evidence to the defense that “would have been admissible at trial.”

Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). We have noted, however, that

“the analysis might not end there” because, as the Fifth Circuit has held, “if inadmissible

evidence would give rise to the discovery of other admissible evidence or witnesses, the State

does have a duty to disclose that evidence.” Id. at 699 n.22 (citing United States v. Brown,

650 F.3d 581, 588 (5th Cir. 2011)).

       We have also held that, if late-disclosed evidence “was turned over in time for the

defendant to use it in his defense, the defendant’s Brady claim would fail.” Little v. State,

991 S.W.2d 864, 866 (Tex. Crim. App. 1999). So long as the defendant “received the

material in time to use it effectively at trial, his conviction should not be reversed just

because it was not disclosed as early as it might have and should have been.” Id. (citing


       19
         As the United States Supreme Court recently emphasized, under this standard, an applicant
“can prevail even if . . . the undisclosed information may not have affected the jury’s verdict.”
Wearry v. Cain, 136 S.Ct. 1002, 1006 n.6 (2016).
                                                                                TEMPLE — 14


United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1999)). See also United States v.

Valas, 822 F.3d 228, 237 (5th Cir. 2016) (same). On direct appeal in Applicant’s case, in an

alternative holding to its conclusion that Applicant procedurally defaulted his Brady claim,

the court of appeals determined that defense counsel was able to put the late-disclosed

materials to effective use at Applicant’s trial. Temple, 342 S.W.3d at 591-92. We do not

ordinarily entertain claims in a post-conviction application for writ of habeas corpus that

were previously resolved against an applicant on direct appeal. Ex parte Acosta, 672 S.W.2d

470, 472 (Tex. Crim. App. 1984); Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App.

2006).

         This is not to say that Applicant should now be altogether barred from raising a Brady

claim in his post-conviction writ application. As is the case with claims of ineffective

assistance of trial counsel, a habeas applicant may be able to re-raise a Brady claim that was

rejected on direct appeal if he can present new evidence of its validity. Cf. Ex parte Nailor,

149 S.W.3d 125, 131 (Tex. Crim. App. 2004) (“[I]f the appellate court rejects a claim of

ineffective assistance of counsel because the record on direct appeal does not contain

sufficient information to adequately address and resolve a particular allegation of counsel’s

deficient performance, the defendant may re-urge consideration of that specific act or

omission in a later habeas corpus proceeding if he provides additional evidence to prove his

claim.”); Ex parte Bryant, 448 S.W.3d 29, 34-5 (Tex. Crim. App. 2014) (quoting Nailor and

applying it to hold that the applicant could re-raise his ineffective assistance of counsel claim
                                                                                 TEMPLE — 15


in a writ since he brought new evidence to support it); Brown, 205 S.W.3d at 547 n.26.

(citing Nailor in support of the Court’s decision to remand to the convicting court “to give

applicant an opportunity to present whatever ‘new’ evidence he had in support of his ‘old’

allegation” of ineffective assistance of counsel).

       Thus, Applicant may presently be able to raise Brady in either or both of two ways.

First, if there is additional exculpatory or impeaching material beyond that which was

disclosed for the first time at his trial—in short, undisclosed evidence—then of course

Applicant may raise a Brady claim in post-conviction habeas proceedings, since this would

essentially constitute a new Brady claim.20 Second, Applicant may be able to re-raise a

previous Brady claim. But to the extent that Applicant continues to complain about the late-

disclosed exculpatory or impeaching evidence that was rejected on direct appeal on the

grounds of immateriality, he must produce additional evidence—beyond what is apparent

from the appellate record—in order to establish incremental materiality.21 What that means

is that Applicant must now show that there was exculpatory or impeaching value to the late-

disclosed information beyond that which would have been apparent to the court of appeals

from the appellate record. And he must also show that this additional exculpatory or



       20
         Because this would constitute a new Brady claim, we would not be bound by law of the
case with respect to the Brady claim that Applicant raised on direct appeal.
       21
          Here I am giving Applicant the benefit of the doubt that, if he can present new evidence
to show incremental materiality, he will not be bound by law of the case, and can make his claims
in post-conviction habeas corpus proceedings notwithstanding the court of appeals’ holdings with
respect to procedural default and materiality.
                                                                                     TEMPLE — 16


impeaching value would have created a reasonable probability of a different outcome—even

taking into account the uses to which defense counsel was able to put those late-disclosed

materials during the trial. In other words, in my view, Applicant must present a record in

these habeas corpus proceedings to establish that defense counsel could have used the late-

disclosed materials, had they been timely disclosed, to substantially greater exculpatory or

impeaching effect at trial than he actually did. It is doubtful, in my opinion, that Applicant

has established sufficient incremental materiality here.

                 B. Applicant’s Allegations of Undisclosed Brady Evidence

       Most of what Applicant developed at the extensive writ hearing was additional

evidence pertaining to the materiality of the late-disclosed information contained in the

various offense reports. But from my own review of both the trial and writ records, I have

also been able to parse out some evidence that appears not to have been disclosed even at

trial. None of this undisclosed evidence, however, strikes me as particularly momentous. I

shall briefly discuss the most prominent examples that I have gleaned from the voluminous

habeas record.22

       The School Witnesses: Another investigating officer, Detective Tracy Shipley,

interviewed several witnesses at Belinda’s school with respect to certain matters, including

what time Belinda had left the school to return home on the day she was murdered. Defense

counsel was given a copy of Shipley’s offense report at trial which summarized these


       22
            The discussion that follows is meant to be illustrative, not necessarily exhaustive.
                                                                                    TEMPLE — 17


interviews. None of these witnesses could say precisely what time Belinda drove off. The

timing of Belinda’s departure was critical. The later Belinda left the school, the later she

would have arrived, first at her in-laws’ home to pick up some homemade soup, and then at

her own home. This would have narrowed Applicant’s window of opportunity to have staged

the burglary, killed Belinda, cleaned himself up afterwards from the inevitable blow-back

from the shotgun blast,23 and then loaded ET into his truck to leave the scene.

       These witness interviews were tape-recorded, however, and defense counsel was not

made aware of the audio recordings during trial. Telephone records that were admitted at trial

showed that Belinda called Applicant at about 3:30 p.m. Applicant claims that the audio

recordings reveal that two of the school witnesses could establish that Belinda was still in the

parking lot of her school when she spoke to Applicant on her phone. This was exculpatory,

Applicant claims, because it demonstrated that she had not yet left the school as late as 3:30,

when the phone records showed that this conversation took place.

       The record does not support Applicant’s contention. The writ record contains the

actual audio recording of one of these two witnesses, Courtney Ferguson, which I have




       23
          The record is unclear whether Applicant was wearing the same clothes when captured on
the supermarket video that he had been wearing earlier in the day, before Belinda could have been
shot. But there was defensive testimony at trial that the shotgun blast, even with the muzzle touching
the back of Belinda’s head, would have caused some blow back and sprayed the shooter with blood.
Sheriff’s investigators did not detect blood on the clothes Applicant was wearing after Belinda’s
murder.
                                                                                    TEMPLE — 18


listened to.24 Ferguson does not say at any point in the interview that she ever saw Belinda

talking on her phone. The audio recording of her testimony lacks the exculpatory value

Applicant attributes to it. The recording of the statement of the other witness, Margaret

Christen, is not in the writ record, so I cannot presently tell whether she ever said that she

saw Belinda on the phone.25 Additionally, Applicant claims that both Ferguson and Christen

identified a third witness, Denise Lavoris, who was present and who (as the habeas court

finds) “would have helped the defense timeline.” But the record reveals nothing about what

Lavoris might have had to say about whether Belinda was on the phone with Applicant while

still in the school parking lot. It is thus pure speculation to say that she would have been

helpful to the defense at trial.

       FBI Profiler Report: The habeas court recommends that we find that the State “never




       24
         In its recommended findings of fact, the habeas court calls this witness “Stacy” Ferguson,
but she is identified in the offense report and in the audio recording as “Courtney” Ferguson.
Courtney Ferguson’s recorded interview is contained in Applicant’s Exhibit 180—and then again
in Applicant’s Exhibit 178. See note 25, post.
       25
           Applicant has alleged, and the habeas court recommends that we find, that Christen “saw
[Belinda] talking to [Applicant] on her cell phone between 3:20 and 3:30 pm on the day of her
murder.” From the citations to the writ record, it appears that the recording of Christen’s interview
is supposed to be contained in Applicant’s Exhibit 178. But this exhibit does not contain Christen’s
interview. Instead, it is a duplicate of the same interviews (including Ferguson’s) contained in
Applicant’s Exhibit 180. The Court has taken the trouble to order the original exhibits from the
district clerk and I have verified that we still have not been provided with the audio recording of
Christen’s interview. None of these witnesses testified at the writ hearing. Thus, there is nothing in
the record to substantiate the habeas court’s recommended finding. At trial, Christen simply testified
that Belinda’s meeting at the school lasted until “about 3:20 to 3:30[,]” but Christen did not mention
Belinda making a call on her cell phone during that time, and she did not see what time Belinda left
the campus.
                                                                               TEMPLE — 19


produced an FBI report which profiled the possible killer.” In December of 2000, an FBI

profiler prepared a report that listed the likely “offender characteristics” of the perpetrator

of Belinda’s murder. Applicant now argues that defense counsel could have used this FBI

report to bolster his final argument at trial that RJS was at least as likely a suspect as

Applicant was because RJS better fit the FBI profile. However, at the writ hearing the State

introduced a transcript, gleaned from defense counsel’s own case file, of a telephone

conversation between defense counsel and the prosecutor that occurred more than two-and-a-

half years before trial. In this phone conversation, the prosecutor alluded to the FBI profile

report and offered defense counsel an opportunity to review it. While the writ record does

not show whether defense counsel took her up on this offer, the phone conversation belies

any claim that the FBI profile report was suppressed. The record does not support the habeas

court’s recommended finding.

       RJS’s Juvenile Probation Status: During the writ hearing, both defense counsel and

one of his associates who sat second chair during Applicant’s trial complained that they were

never told before or during trial that RJS was on juvenile probation when Belinda was

murdered. Defense counsel maintained that he could have used this information to bolster

his argument at trial that RJS had a motive to murder Belinda—to avoid having his probation

revoked. A Harris County appellate prosecutor confirmed during his writ-hearing testimony
                                                                                   TEMPLE — 20


that RJS was on juvenile probation at the time of the offense.26 Even so, Applicant does not

now argue, nor did the habeas court recommend that we find, that RJS’s status as a juvenile

probationer at the time of the offense constitutes undisclosed Brady evidence.

       The record does not reveal why RJS was on juvenile probation. In 1999, as now, if

RJS was on juvenile probation for nothing more than simple truancy, then the fact that

Belinda could report him to the juvenile probation authorities for continuing to skip school

could not possibly result in his being committed to the Texas Youth Commission. See T EX.

F AM. C ODE §§ 51.03(b)(2), 54.05(g) (“a disposition based solely on a finding that the child

engaged in conduct indicating a need for supervision [which includes truant behavior, as

opposed to a disposition based on a finding that the child engaged in “delinquent conduct”]

may not be modified to commit the child to the Texas Youth Commission.”). In short, it is

unclear whether RJS’s juvenile probation could actually be revoked, as defense counsel’s

complaints at the writ hearing presume. Thus, the present record does not reveal that RJS’s

status as a juvenile probationer would have provided him with a particularly compelling


       26
          During questioning by one of the prosecutors at the writ hearing, the head of the appellate
section in the Harris County District Attorney’s Office, who personally handled Applicant’s direct
appeal, acknowledged as follows:

              Q. Essentially, you wouldn’t disagree that [defense counsel] knew that [RJS]
       was a juvenile delinquent?

               A. Yes.

               Q. For heavens sake, he was on juvenile probation, right?

               A. Yes.
                                                                                  TEMPLE — 21


motive to commit murder, much less that he subjectively believed otherwise. Under these

circumstances, I would not, sua sponte, fashion an argument that RJS’s juvenile probationary

status constituted favorable—and particularly, material—exculpatory or impeaching

evidence that the State suppressed.

       The Written Statements of the So-Called “Katy Boys”: At trial, defense counsel

obtained RJS’s two written statements to the investigators as well as RJS’s grand jury

testimony prior to questioning RJS on cross-examination. He was also shown the offense

reports of the particular detectives who testified at trial, which documented some, but not all,

of the oral statements RJS made over the course of their investigation. Those same offense

reports documented oral statements made by many of the so-called “Katy Boys,” a group of

teenage contemporaries of RJS who were investigated to some extent, mostly because of their

relationship to RJS himself.27 But because none of the Katy Boys testified at trial, none of

their written statements or grand jury testimony was turned over to the defense prior to or

during trial. Applicant complains of the non-disclosure of two of RJS’s oral statements and

all of the written statements and grand jury testimony of the Katy Boys.28 The gist of his

argument is that, had the State provided him with all of this information, he would have been




       27
          “The Katy Boys” was the name the prosecutor gave to RJS’s teenage contemporaries in
her testimony at the writ hearing. Defense counsel had another, less polite, term for them.
       28
          Sheriff’s investigators obtained written statements from CT, MG, CE, CC, and JP. I find
no written statement from CG in the writ record. CT and MG testified before the grand jury in April
of 1999.
                                                                                   TEMPLE — 22


significantly better equipped to develop and present his theory at trial that it was RJS, and

perhaps two of his cohorts, CT and MG, who committed the offense.

       It is unclear to me, however, that the various undisclosed statements and grand jury

testimony supplies significant materiality. It is true that there are some inconsistencies among

the various statements. But none of the Katy Boys (other than RJS) testified at trial, and so

defense counsel would have had no occasion to use the inconsistencies among their

statements to impeach them.29 To the extent that the various statements could have aided

defense counsel in piecing together and presenting his alternative suspect theory, I am not

inclined to believe it would ultimately have made much difference in the eyes of the jury, for

reasons I will expand upon next in my discussion of the H & R shotgun.

       The Recovery of the H & R Shotgun: A week or so before Belinda’s murder, several

of the Katy Boys burglarized a home belonging to the boyfriend of CG’s mother. I glean the

following facts from their various statements. Participating in the burglary were CG, CC, and

CE. Several 12-gauge shotguns were taken during this burglary, though none was shown to

be the murder weapon. Several days later, they took the shotguns out to shoot them and

invited RJS to join them. RJS purloined his father’s H & R shotgun and joined them on their

shooting excursion. Afterwards, CE dropped RJS off at a car stereo business where RJS was

to meet his father. Because RJS did not want his father to know he had taken the H & R



       29
          Moreover, it is doubtful that would have elected to call any of the Katy Boys to the stand
himself simply in order to impeach them.
                                                                                     TEMPLE — 23


shotgun, he left it with CE, who took it home and apparently hid it under his bed.30

       On the day of Belinda’s murder, RJS and CE skipped their last class and left school.

They briefly dropped by RJS’s house, and then RJS drove CE home. RJS returned to his own

home and called CT and MG, who came over. According to their various accounts, these

three then drove down the street to the house of another acquaintance to try to obtain

marijuana, then drove back to RJS’s house. From there, they drove to a convenience store

for cigarettes, then back once more to RJS’s residence. MG and CT dropped RJS off so that

MG could go pick up his mother from work.31 RJS claims he then fell asleep on the couch,

to be awakened by his father at about 6 p.m., by which time emergency personnel and local

constables were on the scene.

       Three weeks later, at the end of January, the H & R shotgun was recovered. At trial,

the testimony of both Detective Leithner and Detective Mark Schmidt both tended to suggest

that it was recovered from RJS’s residence a few weeks after the murder. One of the offense

reports that defense counsel reviewed during trial indicated that the H & R shotgun was

recovered by a Deputy Ramon Hernandez; but this offense report does not say where, or from


       30
           Defense counsel knew about the burglary of the home of the boyfriend of CG’s mother
prior to trial, having obtained an offense report of that offense in advance of trial. It was not until
reviewing the offense reports pertaining to Belinda’s murder at trial, however, that defense counsel
learned that RJS had joined the Katy Boys in their shotgun-shooting excursion days before Belinda’s
murder. He questioned RJS about this event during his cross-examination of RJS at trial.
       31
         There is some discrepancy amongst the various statements with respect to the order of these
events, but none is inconsistent with RJS’s claim that he was home by about 4:30 p.m. Defense
counsel was aware of at least the general outline of this narrative from the offense reports he
reviewed at trial.
                                                                                TEMPLE — 24


whom, Hernandez recovered it. Hernandez’s own supplemental offense report recounting his

recovery of the H & R shotgun, if it ever existed at all, seems to have gone missing.32

Hernandez testified at the writ hearing, but by that time he could not remember from whom

he recovered the shotgun in the absence of a supplemental offense report documenting its

recovery. The mystery was apparently solved in 2012 when (in response to Applicant’s

budding actual innocence claim) one of the sheriff’s investigators, Detective Holtke, re-

interviewed CE. CE told Holtke that Hernandez had recovered the H & R shotgun from him.

In none of CE’s previous statements to investigators had he indicated that he had ever taken

possession of the H & R shotgun.

       Applicant makes much of the fact that it was never revealed to him at trial from whom

or where Hernandez recovered the H & R shotgun. In its recommended findings of fact, the

habeas court concludes that Hernandez’s supplemental offense report was “lost, destroyed,

or never prepared,” and observes that the sheriff’s investigators failed to question CE during

their initial investigation “about his hiding the H & R shotgun.” I fail to perceive how this

non-disclosure of information pertaining to the recovery of the H & R shotgun deprived

Applicant of favorable—much less material—evidence. That Applicant’s jury may have

gotten the false impression that the H & R shotgun was recovered from RJS’s household

seems to me to have militated to Applicant’s benefit at trial, since it would have placed the



       32
          Nobody at the writ hearing, including Hernandez himself, could say for sure that he had
actually prepared such a supplement, but all agreed that, assuming he did, it has been lost.
                                                                               TEMPLE — 25


shotgun within easy reach for RJS to use in murdering Belinda. Instead, Applicant spins an

unlikely scenario in which he contends that he could have persuaded the jury, had the truth

been timely revealed, that RJS took CE home from school on the day of the murder, retrieved

the shotgun from CE at that time, but then later returned the shotgun to CE—to put back

under CE’s bed—after RJS used it to kill Belinda. There is no evidence in either the trial

record or the writ record to support this theory.

       Most of Applicant’s present arguments for how he could have used the various

undisclosed statements of RJS and the Katy Boys ultimately turn on the jury accepting this

dubious proposition—that RJS retrieved the H & R shotgun from CE, used it (perhaps with

the help of CT and MG) to kill Belinda, and then returned it to CE for safekeeping. I doubt

that disclosure of either 1) the various statements and testimonies of the Katy Boys, or 2) the

location of the H & R shotgun when it was recovered would have significantly enhanced

defense counsel’s ability to persuade the jury that RJS rather than Applicant was responsible

for Belinda’s murder. With respect to the latter, it might even have detracted.

       Joe Sosa’s Information: Three weeks after Belinda was killed, on February 4, 1999,

Detective Schmidt returned a telephone call from Joe Sosa, a special education teacher at

Katy High School. Sosa told Schmidt, among other things, that CT had told Sosa that CT had

been “in [RJS’s] home the night of the homicide along with [MG,]” and that CT had missed

school the next day. Sosa also told Schmidt that, at some undisclosed time, MG “had made
                                                                                     TEMPLE — 26


a comment that if you put a pillow up to a shotgun it will muffle the sound.” 33 This

information appears in a supplemental offense report attributed to Schmidt that was randomly

attached to the supplemental report of another officer, and, unlike Schmidt’s other

supplements, it is not numbered. I am frankly unable to tell whether defense counsel was

aware of it during trial. Schmidt testified at the writ hearing that he conducted no follow-up

investigation of this information that he had obtained from Sosa. Had defense counsel known

of it before trial, he could have interviewed Sosa to try to put these statements of CT and MG

in context. The record does not reveal what more Sosa might have been able to say.

       Joe Cadena’s Statement: Defense counsel was never given access to an offense

report that documented the statement of an across-the-street neighbor, Joe Cadena, who told

investigators on January 25, 1999, that he had heard what he took to be a truck backfiring at

about 4:30 p.m. on the day of Belinda’s murder.34 The habeas court mentions this undisclosed

information in its recommended findings as well. But the record also reveals that defense

counsel was given access to a different offense report during trial that recorded an earlier

statement that Cadena had given to canvassing officers on the night of the murder. In that

earlier statement, Cadena asserted that, sometime between 4:30 and 5:30 p.m., he actually



       33
           There was no forensic evidence at trial to suggest that a pillow was used to muffle the shot
that killed Belinda.
       34
          It was shown at trial that several young boys who lived behind the Temple residence had
heard what could have been a gunshot at around 4:30, at a time when Applicant must have been on
his way to the supermarket. As the State hypothesized during the writ hearing, it is possible to argue
that the boys heard the same backfire that Cadena thought he heard.
                                                                                    TEMPLE — 27


heard two backfires, which he attributed to a particular truck that he observed on the street.35

Although defense counsel’s investigator spoke with Cadena during trial, defense counsel did

not subpoena Cadena to testify.

                 C. Incremental Materiality of the Late-Disclosed Evidence

       Perhaps marginally more convincing are Applicant’s arguments that disclosure of

much of the materials that the State revealed to defense counsel for the first time during trial

could have been used to substantially greater effect had they been timely disclosed prior to

trial. Some of Applicant’s claims in this regard are more compelling than others. I shall

highlight the most pertinent examples of this category as well.36

       The Katy Boys’ Failed Polygraphs: The Katy Boys were questioned more than once

by sheriff’s investigators and gave some oral statements in addition to their undisclosed

written statements. As the habeas court notes in its recommended findings, many of them,

including CE, CT, and MG, were subjected to multiple polygraph examinations, which they

almost uniformly failed. Defense counsel learned of these facts when he reviewed the offense

reports during trial. But the trial court refused to allow defense counsel to elicit any evidence

with respect to the polygraph testing or results before the jury, and although defense counsel

complained bitterly of this limitation at trial, Applicant did not challenge the exclusion of the

polygraph evidence as an issue in his direct appeal. In any event, it is far from clear that the


       35
            There is no evidence that the shotgun that killed Belinda was fired a second time.
       36
            Again, the discussion that follows is not exhaustive.
                                                                                   TEMPLE — 28


polygraph evidence was admissible under Texas law,37 or that it would have lead to

admissible evidence that defense counsel would not otherwise have been alerted to

investigate by the offense reports. For this reason, if no other, I cannot say that the State’s

late-disclosure of the polygraph evidence constituted a violation of Brady.

       The Parkers’ Dog: Jim and Cynthia Parker lived in a house that was catty-corner to

the Temple’s property, divided from it by a fence. Defense counsel did not learn until he

reviewed the offense reports at trial that a police canvass had disclosed that the Parker’s dog

had barked excitedly at the dividing fence at approximately 4:30 p.m. on the day of Belinda’s

murder—a time that coincides with his defensive theory for when the break-in and murder

occurred (Applicant having been at the supermarket at about this time).38 Once defense

counsel did learn about this evidence, however, he interviewed the Parkers one evening

during the trial and then subpoenaed them, and they testified for the defense at trial. The

habeas court recommends that we find defense counsel did not obtain this information until

trial had commenced. The record substantiates this finding, but it makes no difference

because Applicant cannot show that he suffered any disadvantage from the State’s failure to

divulge this information prior to trial.

       37
          See Ex parte Bryant, 448 S.W.3d 29, 40 (Tex. Crim. App. 2014) (“Polygraph evidence is
generally excluded from courtrooms because the reliability of such tests remains unproven and jurors
could attach undue credibility to a test that purports to sort truth from fiction, a role for which a
factfinder is more properly suited.”) (citing Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App.
2012) (“[W]e have not once wavered from the proposition that the results of polygraph examinations
are inadmissible over proper objection because the tests are unreliable.”)).
       38
            See note 34, ante.
                                                                                  TEMPLE — 29


       Shaka’s “Access” to the Garage: The habeas court also finds that defense counsel

did not learn about three other potential witnesses until he reviewed the offense reports at

trial, all three of whom could have testified that Shaka, the Temple family’s chow, ordinarily

“had access to the garage.” Other witnesses did testify to this fact at trial, however.39 And in

any event, the fact that Shaka had “access” to the garage does not necessarily establish that

he was in the garage at the time that Belinda was killed, and therefore could not have been

expected to bark at any intruders. The testimony of these three additional witnesses would

have added only quite modestly to any inference favorable to the defense, and not enough to

establish any significant incremental materiality.

       Applicant’s Emotional Response: The habeas court recommends a finding that the

late-disclosed offense reports also revealed two witnesses who could have attested that

Applicant reacted emotionally at the scene to Belinda’s death, sobbing with his head in his

hands and appearing weak-kneed. Had he learned of the additional witnesses earlier, defense

counsel may have had time to interview them and to subpoena them for trial. Other witnesses

did testify at trial to Applicant’s apparent emotional response, however, to counteract the

testimony of sheriff’s investigators who conveyed to the jury their impressions that Applicant

seemed emotionless at the scene. One of Applicant’s brothers testified at trial that Applicant


       39
           For example, Michael Ruggiero, a neighbor who lived across the street from the Temples,
testified that the latch on their back gate was not catching properly, and that the Temples would
therefore keep Shaka in the garage so he could not get out. His wife, Peggy, testified that she had
observed Belinda arriving home on occasion and pulling into the garage. Belinda would honk the
horn once the garage door had opened to signal for Shaka to move out of the way.
                                                                              TEMPLE — 30


appeared to be in shock. His mother testified that he had apparently been crying. Later, she

maintained, after he was interrogated by sheriff’s investigators and allowed to leave,

Applicant was “completely distraught and broken.” But these were family members, whose

testimony could have been discounted by the jury as self-serving. Testimony of non-family

witnesses with respect to Applicant’s demeanor was favorable to the defense and defense

counsel’s failure to recognize their significance adds marginally to the incremental

materiality.

       RJS’s Girlfriend: Although the habeas court does not mention it in its recommended

findings of fact, there is another piece of information that was not revealed to defense

counsel until he was allowed to review the offense reports at trial. Niki Biondo was RJS’s

girlfriend at the time of Belinda’s murder. She told sheriff’s investigators that sometime

between 6:30 and 7:00 p.m. on the evening of the murder, RJS called her in a very emotional

state (“crying”) and told her that his next-door neighbor had been “shot”—not killed, but

“shot.” It is unclear how RJS could have learned this detail so soon after the fact. The

sheriff’s investigators did nothing to follow up on this lead. At the writ hearing, the State

speculated that RJS could have heard this detail from bystanders on the street in the hour or

so following Belinda’s murder, notwithstanding that the sheriff’s investigators would have

taken pains, at least in theory, to conceal the specifics of the crime scene. A jury would not

have been constrained to accept the State’s speculation, however, and it would have been

important for Applicant to discover Biondo’s statement in time to track her down and
                                                                                   TEMPLE — 31


interview her, to test the apparent exculpatory value of her story. She may have proven to be

an important witness for the defense, and defense counsel’s failure to recognize her potential

importance in the limited time he had to review the offense reports also adds to the

incremental materiality.

                                   D. Collective Materiality

       Because materiality is to be assessed “collectively, not item by item[,]” Kyles, 514

U.S. at 436, the question becomes: Is there sufficient undisclosed Brady evidence that, when

taken together with Applicant’s showing of incremental materiality of the late-disclosed

evidence, would undermine our confidence in the result of Applicant’s trial? I have found

little that I regard as significant undisclosed Brady evidence, and not a great deal of

incremental materiality in Applicant’s claims of late-disclosed Brady evidence. In short, the

record simply fails to reveal much Brady evidence—either undisclosed evidence with

significant exculpatory or impeaching value or late-disclosed exculpatory or impeaching

evidence that is incrementally material—to measure collectively for materiality.

       For this reason, I would not grant relief on the basis of Brady, but would instead grant

relief on the basis of ineffective assistance of counsel. Though the habeas court

recommended that we reject all of Applicant’s claims of ineffective assistance of counsel,

it made few specific findings of fact with respect to any of these claims.40 In my view,


       40
           The habeas court simply concluded that Applicant’s “current claim that trial counsel
provided ineffective representation has not been shown to meet the Strickland requirements and
relief is not justified.” Such a perfunctory conclusion has little utility. When “the habeas judge’s
                                                                                      TEMPLE — 32


Applicant has established by a preponderance of the evidence that defense counsel was

deficient in at least one critical aspect, and in the context of this particular trial, that

deficiency could well have proven to be a game-changer.

                    III. INEFFECTIVE ASSISTANCE OF COUNSEL

                                  A. The Strickland Standard

        In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court

encapsulated the Sixth Amendment standard for measuring the effectiveness of counsel:

               A convicted defendant’s claim that counsel’s assistance was so
        defective as to require reversal of a conviction . . . has two components. First,
        the defendant must show that counsel’s performance was deficient. This
        requires a showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth
        Amendment. Second, the defendant must show that the deficient performance
        prejudiced the defense. This requires showing that counsel’s errors were so
        serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. A habeas applicant is entitled to relief if he can demonstrate both deficient

performance and prejudice by a preponderance of the evidence. Ex parte Moore, 395 S.W.3d

152, 157 (Tex. Crim. App. 2013).

        With respect to the deficiency component of the Strickland standard, “[t]he proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.” Strickland, 466 U.S. at 688. Counsel has “a duty to bring to bear such



findings do not resolve the disputed fact issues, this Court must exercise its role as the ultimate
finder of fact.” Ex parte Flores, 387 S.W.3d 626, 635 (Tex. Crim. App. 2012). Fortunately, the
factual development in the record is more than sufficient to provide a basis to glean the relevant facts
ourselves and draw conclusions of law from them.
                                                                               TEMPLE — 33


skill and knowledge as will render the trial a reliable adversarial testing process.” Id.

Appellate review of counsel’s performance must be deferential, and “every effort [must] be

made to eliminate the distorting effects of hindsight[.]” Id. at 689. An applicant for post-

conviction habeas relief who claims his attorney performed deficiently must overcome the

presumption “that counsel . . . rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690.

       In order to establish that his attorney’s deficiency was prejudicial, a habeas applicant

“must show that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. A “reasonable

probability” of a different result means more than that the error “had some conceivable effect

on the outcome of the proceeding”; but the applicant “need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Id. at 693. In short, “[a]

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id. at 694. To this end, “[s]ome errors will have had a pervasive effect on the inferences to

be drawn from the evidence, altering the entire evidentiary picture, and some will have had

an isolated, trivial effect.” Id. at 695-96. “Moreover, a verdict . . . only weakly supported by

the record is more likely to have been affected by errors than one with overwhelming record

support.” Id. at 696.

       While a reviewing court “normally looks to the ‘totality of the representation’ and ‘the

particular circumstances of each case’ in evaluating the effectiveness of counsel, Ex parte
                                                                                    TEMPLE — 34


Raborn, 658 S.W.2d 602, 605 (Tex. Cr[im]. App. 1983), the Court has also found that under

some circumstances a ‘single error of omission by . . . counsel [can] constitute[ ] ineffective

assistance.’ Jackson v. State, 766 S.W.2d 504 (Tex. Cr[im]. App. 1985), modified on other

grounds on remand from the U.S. Supreme Court 766 S.W.2d 518 (Tex. Cr[im]. App.

1988).” Ex parte Felton, 815 S.W.2d 733, 735-36 (Tex. Crim. App. 1991). See also,

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“[I]t is possible that a single

egregious error of omission or commission by [applicant]’s counsel constitutes ineffective

assistance.”) (internal quotation marks omitted).41 The United States Supreme Court has

likewise recognized that the Sixth Amendment “may in a particular case be violated by even

an isolated error of counsel if that error is sufficiently egregious and prejudicial.” Murray v.

Carrier, 477 U.S. 478, 496 (1986). One mistake may, in some instances, prove momentous

enough to justify the conclusion both that the attorney rendered constitutionally deficient

performance and that the impact of that deficiency was such as to undermine appellate


       41
           E.g., Ex parte Scott, 581 S.W.2d 181 (Tex. Crim. App. 1979) (ineffective counsel at the
punishment phase for failure to uncover the invalidity of a prior conviction that was used to
enhance); May v. State, 722 S.W.2d 699 (Tex. Crim. App. 1984) (failure to file a sworn application
for probation when the evidence demonstrated eligibility); Ex parte Zepeda, 819 S.W.2d 874 (Tex.
Crim. App. 1991) (failure to request an accomplice-witness instruction requiring corroboration of
the testimony of several accomplices as a matter of law); Vasquez v. State, 830 S.W.2d 948 (Tex.
Crim. App. 1992) (failure to request instruction on the defense of necessity when the evidence raised
the issue); Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) (failure to request limiting
instruction/reasonable doubt instruction with respect to extraneous offenses that were integral to the
State’s proof); Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (failure to investigate
the validity of a prior conviction used to enhance punishment); Villa v. State, 417 S.W.3d 455 (Tex.
Crim. App. 2013) (failure to request instruction on medical care defense when the evidence raised
the issue); Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016) (failure to impeach chief witness
for the State with his prior inconsistent statements).
                                                                                 TEMPLE — 35


confidence in the result of the proceeding. “Although the [appellate] court must look to the

level of counsel’s overall performance, clearly negligent treatment of a crucial deficiency in

the prosecution’s case or an obvious strength of the defense will outweigh the adequate

handling of a series of minor matters.” 3 W. LaFave et al., C RIMINAL P ROCEDURE § 11.10(c),

at 1156-57 (4th ed. 2015).

       I believe that is the case here. Although the question of attorney deficiency in this case

is a close one in light of defense counsel’s overall performance, his mistake was a serious

one. And there is a substantial basis to conclude, given the totality of this record, that the

impact of that mistake, however isolated, could well have been profound.

                               B. Trial Counsel’s Deficiency

       The deficiency in this case centers on the trial testimony of Applicant’s father, Charles

Kenneth Temple, Jr., who testified as a defense witness at trial.42 On the night of Belinda’s

murder, Kenneth had given a written statement to the sheriff’s investigators. Asked about the

time that Belinda had dropped by his residence to pick up the homemade soup for the ailing

ET on her way home, Kenneth maintained that he had gotten home from work at 3:30 p.m.,

“and Belinda arrived about fifteen minutes later at approximately 3:45 P.M.” She “visited

with us for a few minutes” and then, “I guess it was around 3:55 P.M. at the time she left.”

Testimony at trial indicated that the drive from Kenneth’s residence to Applicant and



       42
         The reporter’s record at trial identified the witness as “Kenneth,” not by his first name
“Charles,” and I conform to that designation in this opinion.
                                                                                      TEMPLE — 36


Belinda’s house takes about fifteen minutes.43 Thus, according to Kenneth’s original

estimate, Belinda could not have arrived home much earlier than 4:10 p.m. This would have

left only a very narrow window of time—ten minutes or so—during which Applicant could

have forced or coaxed Belinda into the walk-in closet, killed her, potentially changed his

clothes,44 staged a burglary, hustled ET into his truck, and still arrived at the supermarket by

4:32 p.m.45 Defense counsel was aware of the content of Kenneth’s written statement well

in advance of trial.

        When Kenneth testified before the grand jury in early April of 1999, he gave the same

time estimates: Belinda arrived at his house “at 3:45,” and they visited “for a few minutes

standing there in the garage.” “She probably was at my house from 3:45 to 3:55. I think she

left about five minutes till 4:00.” He confirmed that the drive from his house to Applicant

and Belinda’s home was “[a]bout 15 minutes.” Defense counsel was provided with a copy

of Kenneth’s grand jury testimony in the middle of the State’s cross-examination. In any

event, he would have known at the time of trial from Kenneth’s written statement to the

sheriff’s investigators that Kenneth’s pre-trial estimate was quite favorable to his defensive

posture, since it supports a time-line that would have made it even more problematic for a


       43
           At the writ hearing, Detective Leithner confirmed that in his offense report he had indicated
that it had taken him approximately sixteen minutes to drive the distance from Kenneth’s house to
Applicant’s.
        44
             See note 23, ante.
       45
         This was the time that the security video showed Applicant and ET entering the
supermarket.
                                                                                 TEMPLE — 37


jury to conclude that Applicant could have murdered Belinda.

       Inexplicably, Kenneth remembered the time-line differently at trial. He claimed once

again that he got home at 3:30 p.m. Defense counsel asked him to give his “best estimate or

if you looked at a clock, when did Belinda get there?” Kenneth told the jury, “3:32, or close

to that.” A short while later, defense counsel asked, “And then when did she leave.” Kenneth

answered, “In minutes. 3:45 at least.” Defense counsel then asked Kenneth how long the

drive was between the two houses. Kenneth answered:

               A.     15 to -- 15 plus minutes.

               Q.     Okay. And she left there at 3:45?

               A.     Yes.

This estimate would have placed Belinda at home much closer to 4:00 o’clock, in

conformance with the State’s theory of the case. Though the prosecutor showed Kenneth

selected portions of his grand jury testimony while she cross-examined him at trial, she never

showed him his earlier testimony with regard to the time-line.

       Kenneth testified again during the writ hearing. At this point, he reverted to his

original account of the time-line, asserting once again that Belinda did not arrive at his house

until 3:45, stayed for about ten minutes, and left “by 3:55.” Kenneth maintained that he had

given defense counsel a copy of his written statement to the sheriff’s investigators on more

than one occasion prior to trial. Even so, he maintained, defense counsel never advised him

to review his written statement before testifying at trial. Kenneth reiterated that his grand jury
                                                                                 TEMPLE — 38


testimony with respect to his time estimates was consistent with his written statement. When,

on cross-examination at the writ hearing, the State’s habeas counsel showed Kenneth a

transcript of his trial testimony to confirm that he had given a different time estimate at trial,

Kenneth seemed incredulous:

              Q.     Do you recall what you testified to during your son’s trial back
       in 2007 as to what time Belinda Temple left her house?

              A.     I don’t remember that specifically, no. I remember my written
       testimony [sic], not that.

Kenneth insisted that his testimony at trial had been inaccurate. He reiterated that defense

counsel had not instructed him before his trial testimony to review his written statement, nor

did he review it on his own accord “during the trial.”

       For his part, defense counsel made no excuses for this lapse when he testified at the

writ hearing. He admitted that Kenneth had given him a copy of his written statement “soon

after I became involved in the case.” Applicant’s counsel then asked defense counsel:

               Q.     Which of these two timelines are more beneficial to the defense,
       alibi defense for [Applicant]?

               A.     Well, the one of Ken Temple’s timeline. The one that has
                      Belinda arriving at the Temple home, Mr. and Mrs. Temple’s
                      home at 3:45 and then leaving at 3:55, because that would put
                      her at [Applicant] and Belinda’s home about 15 minutes later,
                      which would make it after 4 o’clock.

              Q.      Can you think of any reason why you did not use that second
       timeline?

               A.     I have no explanation for it. I don’t know.
                                                                     TEMPLE — 39


                                    ***

       Q.     Can you imagine how you made that mistake?

       A.     No.

       Q.     Was it intentional?

       A.     No.

      Q.     Is there any strategic reason why you would not make at that
time your only defense as close to 4:30 as possible?

       A.     No.

                                    ***

        Q.    Now, can you imagine any reason why you did not use
[Kenneth’s written statement] to refresh the memory of [Kenneth] when [he]
said I got home -- she got to the house at 3:32?

       A.     No.

       Q.     And left at 3:45?

       A.     No. It was obviously different from his written statement, and I
should have gone up and shown him his written statement and say “Does this
refresh your recollection,” but I did not.

       Q.     Have you done that before?

       A.     I have.

        Q.     On few or many occasions refreshing a witness’ memory with
a prior written statement?

       A.      Well, you know, that’s second-year law school evidence. You
can do that. I’ve done it a lot of times.
                                                                                 TEMPLE — 40


                                            ***
              Q.      . . . Mr. [defense counsel], is there any reason whatsoever for
       you, from a strategic perspective, not to use [Kenneth]’s timeline?

                 A.     No.

                 Q.     Did it harm your client not to use his timeline?

                 A.     I now believe it did, yes.

                 Q.     Why?

              A.      Well, because it gave more time to be explained. That is, more
       time to do what the State envisioned that [Applicant] did, that is, time to kill
       Belinda, get rid of the shotgun.

       Strictly speaking, of course, defense counsel was mistaken to assume that he could

have used Kenneth’s written statement to refresh Kenneth’s memory on the witness stand—at

least not over an objection from the State. Kenneth did not purport to suffer from a lapse of

memory while testifying at trial; he seemed to remember well enough. See Callahan v. State,

937 S.W.2d 553, 559 (Tex. App.—Texarkana 1996 no pet.) (predicate for using a document

to refresh a witness’s memory includes a showing that “his memory needed to be

refreshed”).46 He just remembered differently than he had in the past. Nevertheless, a party

       46
            In Welch v. State, 576 S.W.2d 638, 641 (Tex. Crim. App. 1979), we explained:

               A witness testifies from present recollection what he remembers presently
       about the facts in the case. When that present recollection fails, the witness may
       refresh his memory by reviewing memorandum made when his memory was fresh.
       After reviewing the memorandum, the witness must testify either his memory is
       refreshed or his memory is not refreshed. If his memory is refreshed, the witness
       continues to testify and the memorandum is not received as evidence. However, if the
       witness states that his memory is not refreshed, but has identified the memorandum
       and guarantees the correctness, then the memorandum is admitted as past recollection
                                                                                     TEMPLE — 41


may impeach his own witness. See T EX. R. E VID. 607 (“Any party, including the party that

called the witness, may attack the witness’s credibility). Defense counsel could have laid the

predicate, under Rule of Evidence 613, to use Kenneth’s written statement to elicit the fact

that Kenneth had made an inconsistent statement in the past—in the hope that reminding

Kenneth of his prior written statement would jog Kenneth’s memory and cause him to revise

the substance of his trial testimony. T EX . R. E VID. 613. Moreover, once he learned during

Kenneth’s cross-examination that Kenneth had testified to the grand jury consistently with

his written statement, he could have impeached him with that as well, if necessary.

       More to the point, defense counsel should have better prepared this witness for his

critical trial testimony; at the very least, he should have asked Kenneth to review his written

statement before taking the witness stand, to refresh his memory before trial. See, e.g.,

Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d) (trial counsel

provided ineffective assistance of counsel by putting his client on the witness stand without

properly preparing him to testify). Perhaps defense counsel was distracted from his ordinary

witness-preparation duties because he was busy exploring the many new evidentiary leads

while in the process of trying his case—a product of the State’s belated disclosure of so much

information that was favorable to the defense.

       Notwithstanding defense counsel’s admission at the writ hearing, the State argues that


       recorded.

(Emphasis supplied). All of this is contingent on a lapse of present recollection.
                                                                              TEMPLE — 42


his performance was not constitutionally deficient because failing to challenge Kenneth’s

trial testimony was nonetheless objectively reasonable. We have indeed held that trial

counsel’s conduct must be measured by an objective standard of reasonableness, and “a

decision not motivated by strategy might be objectively reasonable.” Ex parte Saenz, 491

S.W.3d 819, 829 (Tex. Crim. App. 2016). From this proposition, the State seems to argue

that, because defense counsel might reasonably have chosen to stand on Kenneth’s trial

testimony, not challenge it, we may not find that his performance was constitutionally

deficient. I ultimately disagree, for two reasons.

       First of all, to the extent the State is suggesting that defense counsel actually made a

strategic decision to let Kenneth’s trial testimony stand unchallenged, the record presents

little evidence to support that conclusion. Defense counsel denied it, insisting that he had

simply made a mistake. “Whether a counsel’s action or inaction is based on a strategic choice

is a factual question, on which the defendant can offer evidence when the incompetency

challenge is presented in a post-conviction proceeding (as often must be the case).” LaFave,

C RIMINAL P ROCEDURE § 11.10(c), at 1133. There is no compelling reason to reject defense

counsel’s testimony in this regard. See Saenz, 491 S.W.3d at 828 & n.9 (refusing to indulge

the appellate presumption that counsel’s decisions were strategically motivated in the context

of a post-conviction habeas corpus proceeding at which “the record . . . was developed, and
                                                                                     TEMPLE — 43


trial counsel was able to adequately respond”).47 I have no trouble believing that, presented

for the first time in the middle of trial with an abundance of vital new information to support

a new defensive theory—an alternative suspect—defense counsel lost his focus when

executing his original defensive plan of alibi. As ultimate factfinder in post-conviction

habeas corpus proceedings, we are free to accept trial counsel’s assurance that his conduct

was not based on trial strategy, even if the record presents some basis to believe that some

objective strategy could have justified it. See Saenz, 491 S.W.3d at 829 (“[A]s the ultimate



       47
           When ineffective counsel is alleged on direct appeal, it is usually the case that the record
is silent with respect to whether counsel’s action or inaction was the product of strategy or mistake.
Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). “An ineffectiveness claim raised
on direct appeal is limited to what the trial record reveals as to the grounding for counsel’s actions,
and here the appellate court commonly will assume a strategic motivation if any can possibly be
imagined.” LaFave, supra, at 1137. In the post-conviction context, however, where ineffectiveness
of counsel has been alleged and the record has been developed with respect to counsel’s actions, this
appellate assumption no longer controls. Saenz, 491 S.W.3d at 828 & n.9. If trial counsel concedes
that his challenged act or omission was not the product of strategy, the objective existence of a
plausible strategic basis for the act or omission may provide a reason to doubt the genuineness of his
concession. That would justify a finding of fact that his choice was, in fact, a strategic one
notwithstanding his concession otherwise. But, as the ultimate fact-finder in post-conviction habeas
corpus proceedings, we remain free to accept trial counsel’s concession. Id. at *7. This is unlike in
the appellate context, where appellate courts must defer to a trial court’s finding with respect to the
credibility of counsel’s claim that an act or omission was inadvertent rather than strategic. See
Okonkwo v. State, 398 S.W.3d 689, 694 & n.4 (Tex. Crim. App. 2013) (where trial counsel claimed
lack of strategic motive for an omission at trial, appellate court “should have deferred to the trial
court’s implied finding that counsel’s affidavit lacked credibility”). Of course, even in the post-
conviction context, we usually defer to the recommended findings of the convicting court when they
are supported by the record. E.g., Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim. App.
2007). Here, however, the habeas court made only one finding of fact relevant to this ineffective
counsel claim: “Defense counsel did not use Charles Kenneth Temple’s written statement timeline.”
It made no recommended finding with respect to the credibility of defense counsel’s concession that
his failure to do so was an oversight, not the product of strategy. The only question that remains with
respect to the performance prong of Strickland is whether that mistake was one that fell outside the
bounds of reasonable professional standards.
                                                                               TEMPLE — 44


factfinder in habeas proceedings, we decline to adopt the habeas court’s finding that trial

counsel might have made a reasonable strategic decision . . . .”). Accordingly, I decline to

automatically adopt the State’s “post hoc rationalization of counsel’s conduct” in place of

counsel’s own explanation. Wiggins v. Smith, 539 U.S. 510, 526-27 (2003).

       Secondly, the State’s asserted justification strikes me as less than objectively

reasonable. The State argues that defense counsel was content to let Kenneth’s trial testimony

go uncorrected because it was consistent with the account he would later elicit from

Applicant himself during Applicant’s own trial testimony. Were I to regard this as a plausible

tactical choice, it might present me with a reason to reject, as disingenuous, defense counsel’s

concession that his failure was a mistake, and to conclude instead that it was a reasonable

tactical decision in keeping with his overall strategy in the case. But, for reasons I develop

next, I find the State’s proposed defensive strategy untenable.

       In Applicant’s own written statement to sheriff’s investigators, also taken on the night

of the murder, he estimated that Belinda “got home around 3:45 P.M.” When he testified at

trial, however, he claimed he did not know exactly what time Belinda had gotten home

because he had taken his watch off to bathe ET. He guessed, however, that she had gotten

home closer to 4:00 p.m. The State argues that defense counsel made a deliberate decision

not to impeach Kenneth’s earlier testimony because the estimate Kenneth had given at

trial—that Belinda left his house at 3:45 p.m.—was consistent with Applicant’s own (albeit

revised) estimate that she had arrived home approximately fifteen minutes later, at 4:00 p.m.
                                                                                     TEMPLE — 45


The State theorizes that defense counsel deliberately chose to forego corrective measures

with respect to Kenneth’s testimony in order to avoid any later contradiction of Applicant’s

own time estimate and to thereby maintain Applicant’s credibility.

         I find this theory questionable. Both Kenneth and Applicant were asked at trial to

supply their best estimates of the time-line, and the jury was not necessarily expecting perfect

precision. Defense counsel had nothing to lose and everything to gain by propounding the

most favorable estimate available—regardless of whether it might conflict slightly with his

client’s. After all, under Applicant’s own estimate, which placed Belinda home about 4:00,

it would have been difficult, but not inconceivable, for him to have committed the offense

and still arrived at the supermarket by 4:32 p.m. But under Kenneth’s pre-trial estimate,

placing Belinda home much closer to 4:10 p.m., it would have been practically impossible.

I do not think that any reasonable defense lawyer would adopt the State’s proposed strategy

under these circumstances, and I decline its invitation to find that defense counsel in fact

did.48


         48
         This is not to say that the record is wholly devoid of any support for the State’s argument.
For instance, as part of a mock trial in preparation for Applicant’s trial, the defense team apparently
prepared a “Juror Notebook” containing a time-line which listed the time of Belinda’s arrival home
as “3:55 p.m.” Similarly, during his opening statement to the jury at the beginning of trial, defense
counsel told the jurors that the evidence would show that Belinda arrived home “between 3:45 and
4:00 o’clock sometime.” This time-frame was consistent with Applicant’s statement to sheriff’s
investigators (3:45), as later revised by his trial testimony (4:00).

       But other excerpts from the trial record support defense counsel’s assertions at the writ
hearing that he simply made a mistake, not a strategic choice that he regrets in hindsight. For
example, at one point during Applicant’s direct examination at trial, in trying to establish what time
Belinda must have arrived home, defense counsel asked Applicant:
                                                                                     TEMPLE — 46


       Defense counsel failed to properly prepare Kenneth to testify consistently with his

written statement with respect to a particular fact that was vital to the optimal presentation

of his original defensive posture in the case. He was also unprepared to impeach Kenneth in

the event that he persisted in testifying differently than his written statement. I would hold

that these failures constituted an omission that fell below the standard of reasonable

professional competence. I would hold that Applicant has satisfied the deficient-performance

prong of Strickland, and I turn next to the question of prejudice.

                                           C. Prejudice

       The question before us on discretionary review in this case was legal sufficiency:

whether a rational jury could convict Applicant on the basis of the facts presented. We held

that the circumstantial evidence supported a rational jury verdict of guilty beyond a

reasonable doubt. Temple, 390 S.W.3d at 363. But rational juries can acquit even when the


               Q.    So if [Belinda] left [Kenneth’s house] at 3:50, 3:55 she would have
       gotten [home] what time?

The prosecutor astutely objected that defense counsel’s question “assumes facts not in evidence.”
Because Kenneth’s trial testimony placed Belinda’s departure at 3:45, not “3:50, 3:55,” as defense
counsel’s question posited, the trial court correctly sustained this objection. Nevertheless, more than
once defense counsel asked Applicant questions that seemed to assume that Kenneth’s earlier trial
testimony had been consistent with Kenneth’s prior written statement. These exchanges strongly
suggest to me that defense counsel simply did not realize that Kenneth had testified differently, and
that his failure to try to correct Kenneth was a mistake, not a strategic choice. Defense counsel’s
second chair attorney confirmed that it had been the defensive strategy at trial “to try to get Belinda
home as close to 4:32 as possible” because “the closer [to 4:32] that she arrives to the house, the
more favorable it is to the defense.” “Courts . . . readily find ineffective assistance when counsel’s
testimony at a post-conviction evidentiary hearing establishes that a failure to act on an important
matter was a product of inattention in a setting where the missed option was obvious.” LaFave,
supra, at 1161.
                                                                               TEMPLE — 47


evidence is legally sufficient to convict,49 and the question before us in gauging the prejudice

prong of Strickland is not one of sufficiency of the evidence. Cf. Kyles v. Whitley, 514 U.S.

at 434 (Brady’s materiality standard, which is essentially the same as Strickland’s prejudice

prong, “is not a sufficiency of evidence test”). Given the evidence that Applicant’s jury heard

in this case, a rational jury might just as readily have acquitted him. Even the State’s

evidence presented some basis to doubt whether Applicant could possibly have had time to

perpetrate the offense, and there is further evidence of a viable second suspect who was close

at hand and who also arguably had a motive to commit Belinda’s murder. In short, the jury’s

verdict, though rational, was hardly “one with overwhelming record support.” Saenz, 491

S.W.3d at 833 (quoting Strickland, 466 U.S. at 696). When that is the case, reviewing courts

may more readily conclude that deficient attorney performance results in prejudice. Id.

       “Applying that principle here,” id., it is not hard to imagine that defense counsel’s

mistake, isolated as it was, could have tipped the precarious balance the other way. Add to

the existing record the evidence that the jury would have heard but for defense counsel’s

failure to properly prepare Kenneth to testify, and there is a reasonable probability that a

rational jury would harbor a reasonable doubt that Applicant was the murderer. Had defense

counsel been less distracted by late-disclosed evidence and therefore better focused to

prepare his witness, there is little reason to doubt that Kenneth would have reverted to his


       49
         See Johnson v. Louisiana, 406 U.S. 356, 362 (1972) (“Jury verdicts finding guilt beyond
a reasonable doubt are regularly sustained even though the evidence was such that the jury would
have been justified in having a reasonable doubt[.]”).
                                                                                        TEMPLE — 48


original time estimate. And had the jury heard and credited Kenneth’s original time estimate,

it might more readily have concluded that Applicant could not have had time to kill

Belinda,50 and it may therefore have given more credence to the alternative hypothesis—in

some respects, better supported by the evidence—that RJS was the perpetrator.

        The Strickland standard does not require us to conclude that such a scenario is more

likely than not before habeas corpus relief is appropriate. 466 U.S. at 693. “The result of a

proceeding can be rendered unreliable, and hence the proceedings unfair, even if the errors

of counsel cannot be shown by a preponderance of the evidence to have determined the

outcome.” Id. at 694.51 In view of the overall context in which this trial occurred, it is no

great stretch to declare that our confidence in the result of Applicant’s trial has been

undermined, and that is enough to establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. I conclude

that he has established by a preponderance of the evidence both deficient performance and

prejudice, and thus he has established that he suffered a deprivation of his Sixth Amendment



        50
          As it is, relying on the estimate that Applicant originally gave to sheriff’s investigators that
Belinda arrived home as early as 3:45 p.m., the State argued during its final summation at the guilt
phase of trial that Applicant enjoyed as much as 47 minutes to perpetrate the offense and get to the
supermarket. Defense counsel was unequipped to refute this scenario in his own final argument. Had
defense counsel properly prepared Kenneth to testify consistently with his original statement to the
police and his grand jury testimony, then defense counsel would have been in a position to argue to
the jury that Applicant had no more than ten minutes in which to commit the offense.
        51
          Indeed, as is the case with the Bagley test for materiality, under the Strickland test for
prejudice, Applicant “can prevail even if” trial counsel’s deficiency “may not have affected the jury’s
verdict.” Wearry v. Cain, 136 S.Ct. at 1006 n.6.
                                                                       TEMPLE — 49


right to the effective assistance of counsel.

                                    IV. CONCLUSION

       Accordingly, I concur in the Court’s judgment to reverse Applicant’s murder

conviction and remand him to the custody of the Harris County Sheriff to answer to the

indictment against him.




FILED:         November 23, 2016
DO NOT PUBLISH
