          Barry C.Scheck, Esq.
                                                                Af-~n»0?,f
          Peter J. Neufeld, Esq.

          yTdL E
          ExeieSor8*
                                                                                         F,LEDIN
                                                                              COURT OF CRIMINAL APPEALS
          Innocence Project                                                                .   . «niC
          40 Worth Street, Suite 701                                                   JAN 14 £Ul3
          NewYork, NY10013

                                                                                    Abel Acosta, Clerk
          Tel 212.364.5340
          Fax 212.364.5341
          www.innocenceprojed. org

                                                                   January 6,2015


Clerk Etta Wiley
Bastrop County District Clerk
804 Pecan St.
Bastrop, TX
78602



Dear Ms. Wiley,

        My name is Hayato Watanabe and I am the paralegal for attorneyBryce Benjet who represents
Rodney Reed. I am writing with regard to Rodney Reed vs. State of Texas No. 8701. Please find
enclosed an original and five copies of a Notice to Appeal. Please file these documents with the Court
and return the file-stamped copies using the pre-paid addressed envelope enclosed. If you have any
questions or concerns I can be reached at 212-364-5979. Thank you very much.


                                                           Sincerely,
                                                             'It

                                                           Hayato Watanabe
                                                           Paralegal

Cc:     Matt Ottoway, Assistant Attorney General
        Bastrop County District Attorney




                                                                                   RECEIVED IN
                                                                             COURT OF CRIMINAL APPEALS

                                                                                     JAN 13 2015

                                                                                 Abel Acosta, Clerk
Benjamin N, Cardozo School ofLaw, Yeshiva University
       RODNEY REED                         )      No. 8701


                                    vs.    )      IN THE DISTRICT COURT

       STATE OF TEXAS                      )      21* JUDICIAL DISTRICT

                                                  OF BASTROP COUNTY, TEXAS




                                 NOTICE OF APPEAL




ToThe Honorable District Judge:

       On January 6, 2015 and under Rule 25.2 ofthe Texas Rules ofAppellate
Procedure, Rodney Reed, Defendant and Movant inthe above styled case, files this
written notice with the clerk ofthis court that defendant intends to appeal to the Texas
Court of Criminal Appeals as provided under Article 64.05 of the Code of Criminal

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

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


                                                 Respectfully submitted,



                                                 Bryce Benjet
                                                 State Bar No. 24006829
                                                 The Innocence Project
                                                 40 Worth St.
                                                 New York, NY 10013
                                                 (212) 364-5340
                                                 (212) 364-5341 fax
                                               Andrew F. MacRae
                                               State Bar No. 00784510
                                               LEVATINO|PACE LLP
                                               1101 S. Capital of Texas Highway
                                               Building K, Suite 125
                                               Austin, TX 78746
                                               (512) 637-8565
                                               (512) 637-1583 (fax)

                                        ATTORNEYS FOR RODNEY REED




                           CERTIFICATE OF SERVICE

       On the 6th day of January 2015, a copy of the foregoing motion was served upon
the Bastrop County District Attorney by U.S. Mail or hand delivery.
Exhibit 1
                                   Cause No. 8701


STATE OF TEXAS                            §         IN THE 21STDISTRICT COURT
                                          §
                                          §                                         OF

RODNEY REED                                §            BASTROP COUNTY, TEXAS


              FINDINGS OF FACT AND CONCLUSIONS OF LAW

      After considering the record in this case, and after making credibility

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

enters the following findings of fact and conclusions of law:

Relevant Procedural History

1.    The State, on April8, 2014, filed a motion to set an execution date for Movant,
      Rodney Reed. The State requested a date of November 19, 2014.
2.    Movant, on April8, 2014, filed a motion to recuse the elected judge overseeing
      his case, Judge Towslee-Corbett.

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

4.    OnMay 23, 2014, Judge Towslee-Corbett issued an order ofvoluntary recusal.
5.     On May 28, 2014, Judge Underwood, the presiding judge of the Second
      Administrative Judicial Region, assigned the undersigned judge to preside
       over the case.

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

7.     On June 17, 2014, the Court re-set the hearing on the State's motion to set an
       execution date at the request of the parties.
8.     On July 14, 2014, the Court held a hearing on the State's motion to set an
       execution date. The Court entered an order setting Movant's execution for
       January 14, 2015.                                                                „WuL-
                                                                       FILED.    0:'
                                                                         M^
                                                                        DATE
                                                                         Swat
                                                                   District Clerk, Bastrop Count"
9.     On July 14, 2014, immediately before the hearing on the State's motion to set
       an execution date, Movant filed the instant Chapter 64 motion. The motion
       contained no affidavit from Movant and no affidavit from a DNA expert.
       Movant, however, attached several affidavits purporting to undermine the
       State's forensic case at trial.

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

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

12.    The Statetimely responded onSeptember 12,2014. The Stateattached several
       exhibits regarding the existence, custody, and present condition of evidence
       collected in connection with the investigation of Movant's offense.
13.    Movant filed a letter requesting a hearing onthe Chapter 64motion onOctober
       14, 2014.

14.    The State filed a letteropposing a hearingon the Chapter64 motion on October
       22, 2014. The State attached an exhibit reflecting an amended inventory
       regarding fingerprint evidence.

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

16.    OnOctober 27, 2014, the Court set a hearing on Movant's Chapter 64 motion.
17.    On November 18, 2014, the State moved to modify Movant's execution date.
       The State requested an amended date of March 5, 2015.
18.    Movantfiled a replyto the State's Chapter 64 response on November 24, 2014.
       Movant attached, for the first time ever, a personal affidavit.
19.    Movant filed a motion to withdraw his execution date on November 25, 2014,
       immediately before the hearing on his Chapter 64motion. Movant requested
       indefinite delay ofhis execution to conduct DNA testing or to appeal the denial
       of DNA testing.

 20.    The Court held a live hearing on the Chapter 64 motion on November 25, 2014.
        Movant called crime-scene and forensics expert, John Paolucci, and DNA
        expert, Deanna Lankford. The State called Gerald Clough, an investigator
        with the Office of the Attorney General of Texas, Lisa Tanner, the special
        prosecutor on Movant's case, and Etta Wiley, adeputy district clerk for Bastrop
      County. Movant and the State also introduced various exhibits. After
      considering the record in thiscase, andaftermaking credibility determinations
      from the hearing, the Court denied Movant's Chapter 64 motion.
21.   At the November 25, 2014, hearing, the Court granted the State's motion to
      modify Movant's execution date. The Court entered an amended execution
      order setting Movant's execution for March 5, 2015.
22.   On December 2, 2014, Movant requested a subpoena to obtain a personal
      reference sample for purposes ofthe agreed-to DNA testing ordered onJuly 14,
      2014. A subpoena issued on December 3, 2014.

Findings of Fact and Conclusions of Law

23.   Reed has failed to prove by a preponderance ofthe evidence that his Chapter
      64 motion is not made to unreasonably delay the execution of sentence of
      administration ofjustice. This is explained below:
      23a. Movant, to date, has not provided the Court with any information
             regarding time estimates for the extensive DNA testing he seeks. This
             alone, the Court believes, is sufficient toshow that Movant hasfailed in
             his burden to show that his request is not made to unreasonably delay
             his execution.

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

      23c,   The Court notes that Movant's Chapter 64 motion was filed thirteen
             years after Chapter 64's enactment and approximately three years after
             Chapter 64's most recent amendment. The Court finds that there was
             no legal impediment to filing a Chapter 64 motion during this entire
             period. The Court also notes that Movant has been continuously
             represented by counsel during his postconviction proceedings, as
             indicated by the multiple state and federal opinions generated during
             these proceedings. The lack of filing during this period, which was
             without factual or legal impediment, leads the Court tobelieve that the
             present Chapter 64 motion is filed for purposes ofdelay.
       23d. As pled in Movant's Chapter 64 motion, Movant's first informal request
            for DNA testing occurred three days after the United States Court of
            Appeals affirmed the denial of his federal petition for writ of habeas
       corpus. This timing is important because, as demonstrated in the
       State's response, there is little chance for relieffollowing affirmation of
       the denial of a federal habeas petition. Thus, the Court finds that
       Movant only sought DNA testing after his other efforts at relief proved
       unsuccessful. This diminishes Movant's case that his present Chapter
       64 motion was not filed for purposes of unreasonable delay.

23e. As demonstrated by the State's exhibits, Movant's attorney—Bryce
     Benjet—is counsel of record for Larry Swearingen, another Texas death
     row inmate. Mr. Benjet filed a Chapter 64 motion for Swearingen
       approximately a year and a halfbefore Movant's Chapter 64 motion. Mr.
       Benjet filed another Chapter 64 motion for Swearingen approximately
       two months before Movant's Chapter 64 motion. Movant's motion is
       substantially similar to Swearingen's initial Chapter 64 motion and
       attached to Swearingen's initial Chapter 64 motion is a personal
       affidavit from Swearingen and an affidavit from a DNA expert.
       Swearingen's second Chapter 64 motion has attached to it another
       affidavit from a DNA expert. Thus, the Court concludes that Movant,
       through his counsel, Mr. Benjet, had the legal and factual knowledge to
       file Movant's present Chapter 64 motion more than a year before it was
       filed. Movant's delayed presentation of a personal affidavit and an
       expert affidavit, the Court finds, is a purposeful attempt at delay.
23f.   Movant has been cited for abuse of the writ on five separate occasions
       by the Court of Criminal Appeals. As demonstrated by the State's
       evidence, the United States District Court for the Western District of
       Texas ruled that Movant had untimely sought forensic testing and was
       dilatoryin submitting an affidavit. The United States Court ofAppeals
       for the Fifth Circuit also found that Movant submitted evidence in an
       untimely fashion. Accordingly, the Court finds that Movant has
       engaged in a dilatory and piecemeal litigation strategy throughout his
       postconviction proceedings and the Court believes this Chapter 64
       motion is a continuation of such behavior.

23g. Movant hasthrice asked the Court to indefinitely postpone hisexecution
       date—once in opposing the State's motion to set an execution date, once
       at the hearing to set an execution date, andonce at the hearing on this
       Chapter 64 motion via a motion to withdraw the date. The Court finds
       that Movant's request for, essentially, indefinite stays works against
       him in proving that he is not attempting to unreasonably delay his
       execution.

23h. Movant, at the live evidentiary hearingon the Chapter 64motion, asked
     for DNA testing on a substantial amount of evidence that he had not
     mentioned in his Chapter 64 motion. Consequently, Movant has not
        individually briefed or explained the type of testing that he would like
        performed on these items. The Court finds this dilatory request to be
        another example ofMovant's last-minute amendments to his Chapter
        64 pleadings, which this Court considers to be an attempt to
        unreasonably delay his execution.

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

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

23k. The Court finds that Movant has requested DNA testing of items of
     evidence that the State has already agreed to test. This includesvarious
     hairs and swabs from the victim's body. The Court finds that this
         request for redundant testing is, again, an attempt to unreasonably
         delay the execution of sentence.
 231.    Movant has repeatedly stated, in pleadings and in court, that he plans
         to soon file postconviction motions for relief pursuant to Articles 11.071
         and 11.073 of the Texas Code of Criminal Procedure. To date, despite
              Movant's promise of diligence, he has not filed either pleading. The
              Court views this procrastination as another example of an attempt to
              unreasonably delay his execution.

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

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

      24a. The State's case on guilt-innocence was strong—Movant's DNA was
           found both on and inside the victim, which demonstrated presence; the
           intactnessofMovant's sperminsidethe victim's vaginal cavity, the peri-
              mortem injuries to the victim's anus, Movant's saliva on the victim's
              breasts after she took a shower the evening before her murder, and the
              small amount of semen in the victim's panties demonstrated sexual
              assault contemporaneous with murder; the peri-mortem injury to the
              victim's anus and the obvious signs of sexual assault—the victim's
              bunched up panties, a broken pants zipper, partially unclothed, bruises
              to the arms, torso, and head of the victim—demonstrated lack of
              consent; and additional evidence indicated that Movant frequented the
              area of the victim's disappearance at the time the victim disappeared
              and the Movant matched the height of someone who would have fit the
              adjusted seat in the victim's truck.
      24b. Many of the items ofevidence Movant seeks to testwere already before
           the jury and the jury knew they did not match Movant—their
           exculpatory nature was already before the jury. For example, Movant's
              DNA and forensics expert testified that one of the hairs Movantseeks to
              test did not match Movant's genetic profile. As another example, a DPS
              forensic scientist testified that none of the hairs collected from the
              victim's body microscopically matched Movant's hair. And, as another
               example, Movant did not match any ofthe fingerprints collected during
               the course ofthe investigation. Thus, the jury knew that many of the
               items Movant seeks to test were not from him.

       24c.    Further, the Court finds that none ofthe evidence Movant seeks to test
               was so integral to the State's case that the jury would have acquitted
               despite knowing that Movant's DNA was not on the item. Many ofitems


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

Accordingly, Movant's Chapter 64 motion is DENIED.

It is so ORDERED.

DONE AND ENTERED this          ) fL day nf ~Qei**dv                     , 2014.


                               Doug Shaver
                               Presiding Judge
                                21st District Court
                                Bastrop County, Texas

                                Sitting by Assignment




                                                            FILED.

                                                             BffiB**'
                                                        District Cterk, Bastrop County
