            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                   NO. WR-62,099-05



                  EX PARTE ROBERT LYNN PRUETT, Applicant



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
 AND MOTION TO STAY THE EXECUTION IN CAUSE NO. B-D1-MO15-PR-B
              IN THE 156 TH JUDICIAL DISTRICT COURT
                             BEE COUNTY

       A LCALA, J., filed a dissenting statement.

                              DISSENTING STATEMENT

       The Legislature recently enacted three statutes addressing the inherently questionable

nature of inmate testimony, the prejudicial impact of junk science, and the problems that

occur when the State does not fully participate in discovery with the defense, and this

snakebit case is riddled with each of those problems. I would grant the motion to stay this

impending execution for a capital-murder conviction against Robert Lynn Pruett, applicant,
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on the basis that this Court should fully consider the merits of his complaint that junk science

played a primary role in his conviction, but in discussing the gravity of the situation, I also

note that this case is riddled with problems that the Legislature has attempted to now fix:

junk science, inmate testimony, and lack of discovery. This application for a post-conviction

writ of habeas corpus filed by applicant challenges his conviction for the 1999 capital murder

of Daniel Nagle, a correctional officer at the McConnell Unit. See Pruett v. State, No.

74,370 (Tex. Crim. App. Sept. 22, 2004) (not designated for publication); Ex parte Pruett,

207 S.W.3d 767, 767 (Tex. Crim. App. 2005) (denying initial application). I respectfully

dissent from the Court’s dismissal of this post-conviction writ application on procedural

grounds and its denial of the motion to stay the execution filed by applicant. See T EX. C ODE

C RIM. P ROC. art. 11.071, § 5. Instead, I would file and set the present application for this

Court to interpret the meaning of Article 11.073, and, if appropriate, remand this claim to the

habeas court for an evidentiary hearing. See id. art. 11.073. I would further sua sponte reopen

applicant’s previous application for a writ of habeas corpus in which he asserted complaints

premised on the ineffectiveness of trial counsel and a due-process violation challenging the

use of false evidence at his trial. Rather than permit an execution to take place under

circumstances in which the primary evidence underlying the conviction—inmate testimony

and likely junk science testimony based on the purported matching of strips of masking

tape—has been deemed inherently questionable and unreliable by the Legislature, I would

instead ensure that the integrity of this conviction is beyond reproach by staying the
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execution and examining the evidence more closely.

                                        I. Background

       The record suggests that applicant was convicted primarily on the testimony of

inmate-witnesses and junk science. The evidence adduced at applicant’s 2002 capital-murder

trial indicated that the shank used to stab Nagle had masking tape wrapped around the

handle. Applicant’s fingerprints were not found on the weapon. To connect applicant to the

murder weapon, the State presented testimony from inmate witnesses, one of whom testified

that he gave applicant the masking tape that was then used to make the murder weapon.

Specifically, this inmate-witness stated that applicant’s cell mate, Phillips, gave masking tape

to him and asked him to pass it along to applicant. To corroborate the inmate-witness’s story,

the State presented the expert testimony of Lisa Harmon Baylor, who testified that, through

the “science” of physical match comparison, she was able to identify the tape wrapped

around the handle of the weapon as having been torn off of one of the rolls at Phillips’s

workstation in the prison craft shop.

       As to motive, the State’s theory was that applicant was upset because Officer Nagle

had written a disciplinary charge against applicant for having food in an area of the prison

where food was not permitted. See In re Pruett, Nos. 15-20222, 15-70011, 2015 WL

1840601, at *1 (5th Cir. April 23, 2015). Torn pieces of the disciplinary report were found

near Officer Nagle’s body after the murder. Id. At trial, applicant testified that Officer

Nagle tore up the report in applicant’s presence and that applicant then walked away, leaving
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Officer Nagle alive and well. Id. “[T]here was no physical evidence connecting [applicant]

to the murder.” Id. DNA testing revealed that only Officer Nagle’s blood was found on the

disciplinary report. Id.1

   II. This Court Should Stay the Execution and Remand the Current Application

       In his current application, applicant asserts that he is entitled to receive a new trial

because it is likely that jurors would not have convicted him had they been informed that the

“science” relied upon by the State’s expert has now been discredited. See T EX. C ODE C RIM.

P ROC. art. 11.073(b)(2). Applicant now contends that, according to a 2009 Forensic Report

issued by the National Academy of Sciences, the “science” of physical match comparison,

which was the basis for the State’s expert’s testimony regarding the matching of the masking

tape, has now been discredited. Applicant asserts, therefore, that had the jurors at his trial

known that the science relied upon by the State has now been discredited, it is more likely

than not that they would not have convicted him of capital murder.

       Applicant’s complaint that junk science was used to convict him is precisely what the

Legislature had in mind when it enacted Article 11.073 to permit post-conviction challenges

premised on relevant scientific evidence that was not available to be offered by a convicted


       1
         Although applicant has previously asserted that his lack of DNA on the report suggests that
he did not commit this offense, I conclude that the lack of DNA is not evidence of his innocence
when only the victim’s DNA was found on the report. See Pruett v. State, No. AP-77,037, 2014 WL
5422573 (Tex. Crim. App. Oct. 22, 2014) (upholding trial court’s determination that it was not
reasonably probable that applicant would have been acquitted at his trial on the basis of
“inconclusive” results of DNA and palm-print testing). I am also unpersuaded that applicant is
entitled to relief from his conviction because the State did not take better care in preserving the
physical evidence against him.
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person at the convicted person’s trial or that contradicts scientific evidence relied on by the

State at trial. See T EX. C ODE C RIM. P ROC. art. 11.073(a). Article 11.073 states, “A court may

grant a convicted person relief on an application for a writ of habeas corpus if: (1) the

convicted person filed an application, in the manner provided by Article 11.07, 11.071, or

11.072, containing specific facts indicating that (A) relevant scientific evidence is currently

available and was not available at the time of the convicted person’s trial because the

evidence was not ascertainable through the exercise of reasonable diligence by the convicted

person before the date of or during the convicted person’s trial; and (B) the scientific

evidence would be admissible under the Texas Rules of Evidence at a trial held on the date

of the application; and (2) the court makes the findings described by Subdivisions (1)(A) and

(B) and also finds that, had the scientific evidence been presented at trial, on the

preponderance of the evidence the person would not have been convicted.” See id. art.

11.073(b).

       Although applicant plainly appears to have made a prima facie case that junk science

was used to convict him, there is a question as to whether he has timely asserted his claim.

The factual basis underlying applicant’s claim is the 2009 Forensic Report, but he did not

present his claim in his earlier post-conviction writ applications that were filed after 2009.

With respect to the applicable timing requirements, Article 11.073 states, “For purposes of

. . . Section 5(a)(1), Article 11.071 [the statutory bar on subsequent writs] . . . a claim or issue

could not have been presented previously in an original application or in a previously
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considered application if the claim or issue is based on relevant scientific evidence that was

not ascertainable through the exercise of reasonable diligence by the convicted person on

or before the date on which the original application or a previously considered application,

as applicable, was filed.” See id. art. 11.073(c) (emphasis added). “In making a finding as

to whether relevant scientific evidence was not ascertainable through the exercise of

reasonable diligence on or before a specific date, the court shall consider whether the

scientific knowledge or method on which the relevant scientific evidence is based has

changed since the applicable trial date or dates, for a determination made with respect to an

original application[,] or the date on which the original application or a previously considered

application, as applicable, was filed, for a determination made with respect to a subsequent

application.” See id. art. 11.073(d) (emphasis added).

       Today, this Court declines to consider the merits of applicant’s claim and instead

dismisses this application as an abuse of the writ on the basis that the pleadings fail to satisfy

the requirements of Article 11.071, § 5(a) and Article 11.073(c). See id. art. 11.071, § 5(a),

11.073(c). The theory supporting dismissal is that applicant’s current habeas counsel could

have, but did not, raise this new-scientific-evidence claim in his 2014 writ application

because, at that time, he should have had access to the 2009 National Academy of Sciences

Report that he uses as his evidentiary support for his current claim. The Court thus concludes

that consideration of applicant’s claim is procedurally barred.

       By focusing solely on the statutory language in Subsection (c), this Court has failed
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to consider the meaning of that language when viewed in the broader context of the entire

statutory scheme, and it has read terms into the statute that are not in its plain language. The

statute requires either this Court or the habeas court to make “a finding as to whether relevant

scientific evidence was not ascertainable through the exercise of reasonable diligence on or

before a specific date.” See id. art. 11.073(d). Typically, findings are made by a habeas court

after a full consideration of the evidence in the record, which would suggest that the case

should be remanded to the habeas court for that to occur. Alternatively, if this Court is to

make that finding, which would be contrary to our ordinary approach to applications for writs

of habeas corpus, this Court only has pleadings before it, and we have not yet filed and set

this case to decide it on the merits, so a finding at this stage based on mere pleadings would

be inappropriate. Furthermore, although it is true that applicant relies on a 2009 report that

predated his earlier applications, I cannot conclude that the date on which a report was issued

is alone enough to show that this relevant scientific evidence was, as a matter of law,

“ascertainable” through the exercise of “reasonable diligence” when applicant filed his

earlier applications for post-conviction writs. See id. In any event, the statute is unclear as

to whether it requires a “finding” from the habeas court or from this Court with respect to the

timeliness of the Article 11.073 claim, and this Court should grant a stay to examine the

meaning of the statute through a written opinion.

       I also note that, by dismissing applicant’s new-scientific-evidence claim based on his

pleadings alone, this Court reads a term into this new-science law that does not appear in the
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statutory language. This Court effectively holds today, for the first time since the statute’s

effective date of September 1, 2013, that a case will be dismissed if an applicant fails to

provide evidence making a prima facie case that relevant scientific evidence was not

ascertainable through the exercise of reasonable diligence on or before a specific date. See

id. Although typically this Court has required that type of pleading to overcome the

procedural bar on subsequent writs, that type of pleading requirement, applied in the present

context, appears to run contrary to the legislative intent to liberally permit post-conviction

challenges to convictions based on junk science. As of now, this Court has issued only one

opinion addressing Article 11.073, Ex parte Robbins, and a motion for rehearing is pending

in that case. See Ex parte Robbins, No. WR-73,484-02 (Tex. Crim. App. Nov. 26, 2014).

Because the meaning of the temporal requirements of this statute are a matter of first

impression before us, this Court should grant applicant’s motion to stay the execution to fully

consider whether it is this Court or the habeas court that should determine whether an

applicant has pleaded facts to make a prima facie showing of “reasonable diligence” to

secure the new-science evidence, whether such a pleading requirement exists at all in this

context, and whether a habeas court rather than this Court must make a finding on the

question of reasonable diligence as part of the trial court’s findings and conclusions as to the

merits of a complaint. There are far too many unanswered questions with respect to the

meaning and application of Article 11.073 at this juncture to permit a person to be executed

for capital murder in a case in which it appears that junk science was used to corroborate the
                                                                                        Pruett - 9

inherently questionable inmate testimony.

       To further explain why this Court should step back and permit applicant to further

develop his arguments, it should be noted that even as early as 2004, the trial court that heard

applicant’s initial application for a writ of habeas corpus made findings of fact that

“fundamental and material violations of the Constitution, the Rules of Evidence, and the trial

court’s pretrial discovery” occurred in this case, and it recommended “that the applicant’s

conviction be set aside.” See Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. 2005) (per

curiam). During the last legislative term, again concerned that trials like those that occurred

here should not be happening in Texas, the Legislature passed the Michael Morton Act to

ensure that defendants would receive discovery of the evidence the State had in its possession

so that they could prepare a defense against it. See T EX. C ODE C RIM. P ROC. art. 39.14. In

rejecting the trial court’s recommendation that applicant be granted a new trial based on

discovery violations that occurred even before the passage of the Michael Morton Act, this

Court held that, because the Due Process Clause confers upon defendants a right to be

informed about the existence of exculpatory evidence, it does not require the prosecution “to

‘reveal before trial the names of all witnesses who will testify unfavorably.’” See Pruett, 207

S.W.3d at 767. This Court further determined that, as “for the trial court’s conclusion that

the failure to reveal the inculpatory statements also violated the rules of evidence and the trial

court’s discovery order, such violations, even if they occurred, would not be grounds for

relief on habeas corpus.” Id. Although this Court accurately decided the case under then
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existing law, the Legislature’s continued interest in addressing the particular problem that

the trial court here found so compelling that it recommended a new trial in 2004 should give

us pause before summarily rejecting applicant’s present complaint.

 III. Applicant’s Second Application Should be Reopened by this Court Sua Sponte
 to Address His Allegations of a Due Process Violation by the Use of False Evidence

       I would grant applicant’s motion to stay his execution and sua sponte reopen the

second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged

a due process violation by the use of false evidence. Ex parte Pruett, No. WR-62,099-02

(Tex. Crim. App. Dec. 10, 2014) (not designated for publication). This Court determined that

the subsequent application failed to satisfy the requirements of Article 11.071, § 5(a), and

the Court dismissed it. See id.; T EX. C ODE C RIM. P ROC. art. 11.071, § 5(a). I dissented to

that dismissal on the basis that applicant had made a prima facie showing that his claims

should have been remanded to the trial court for consideration. Ex parte Pruett, No. WR-

62,099-02 (Alcala, J., dissenting). Applicant complained that “due process was violated

when the State failed to disclose deals that had been made with the inmate witnesses that

testified during guilt/innocence and failed to correct false testimony.” Applicant explained

that his due-process rights were violated by the State’s failure to disclose that a deal had been

made with Harold Mitchell and also by the State’s failure to correct Mitchell’s false

testimony. Furthermore, applicant contended that his “right to due process was violated by

the State’s failing to disclose that inmates who desired to testify on Pruett’s behalf were

threatened and physically assaulted.” Applicant argued that the factual basis of this claim
                                                                                    Pruett - 11

was unavailable on the date that he filed his initial application. I concluded that applicant

had pleaded a prima facie case that his due-process rights were violated and voted to remand

that complaint for consideration on whether there was a factual basis showing that this claim

was unavailable during his initial application, and, if so, addressing the merits of this

complaint.

       Applicant’s assertions that the State used the false testimony of inmate-witnesses is

precisely what the Legislature was concerned about when it passed statutes to regulate this

type of evidence after applicant’s trial took place. In 2009, the Legislature enacted Article

38.075, which states, “A defendant may not be convicted of an offense on the testimony of

a person to whom the defendant made a statement against the defendant’s interest during a

time when the person was imprisoned or confined in the same correctional facility as the

defendant unless the testimony is corroborated by other evidence tending to connect the

defendant with the offense committed.” See T EX. C ODE C RIM. P ROC. art. 38.075(a). Because

this enactment reflects a legislative determination that testimony by one inmate against

another is inherently unreliable, this Court should also recognize that reality and remand this

case to the habeas court for consideration of applicant’s claims that the inmates gave false

testimony against him.

 IV. Applicant’s Second Application Should be Reopened by this Court Sua Sponte
        to Address His Claim of Ineffective Assistance of Habeas Counsel

       I would grant applicant’s motion to stay his execution and sua sponte reopen the

second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged
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that his original habeas counsel was ineffective for failing to raise a claim of ineffective

assistance of trial counsel. See Ex parte Pruett, No. WR-62,099-02. This Court determined

that the ineffective-assistance-of-trial-counsel claim failed to satisfy the requirements of

Article 11.071, § 5(a), and the Court dismissed it. See id.; T EX. C ODE C RIM. P ROC. art.

11.071, § 5(a). I dissented to that dismissal on the basis that applicant had made a prima

facie showing that his claims should have been remanded to the trial court for consideration,

relying on the reasoning in my dissent in Ex parte Buck and suggesting that inadequate

representation by habeas counsel in failing to raise a potentially meritorious claim should

serve as a basis to overcome the bar on subsequent writs. 418 S.W.3d 98, 109 (Tex. Crim.

App. 2013) (Alcala, J., dissenting); Ex parte Pruett, No. WR-62,099-02 (Alcala, J.,

dissenting).

       In my dissenting statement on applicant’s second application for a writ of habeas

corpus, I noted that applicant had presented new, prima facie evidence of a change in his

sentencing profile, such as that he was the victim of sexual abuse as a child by his mother for

an extended period of time, that his mother prostituted him to men, and that his extreme

poverty required him and his mother to dig through dumpsters to look for food and to sleep

in parks due to homelessness. Given the substantial volume of mitigating evidence that had

emerged since the time of applicant’s trial, I concluded that applicant had presented a prima

facie case of ineffective assistance of trial counsel, worthy of remanding to the habeas court

for consideration of that claim on the merits.
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                                        V. Conclusion

       I do not reach the ultimate merits as to whether applicant has presented grounds on

which habeas relief should be granted. Rather, I decide only that applicant has presented,

both in the earlier application and in the current application, an adequate basis upon which

to make a prima facie case that should be remanded to the habeas court for full consideration

of the merits. Given the multitude of the allegations of constitutional violations in this case,

I respectfully dissent from the Court’s dismissal of the application and to this Court’s denial

of the motion to stay applicant’s execution.

Filed: April 24, 2015

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