                                                            WR-62,099-04
                                             COURT OF CRIMINAL APPEALS
                                                              AUSTIN, TEXAS
                                             Transmitted 4/20/2015 8:00:34 PM
                                               Accepted 4/21/2015 8:04:56 AM
                                                               ABEL ACOSTA
        Cause Number WR-62,099-04                                      CLERK

                                                 RECEIVED
                                          COURT OF CRIMINAL APPEALS
                                                 4/21/2015
         Ex Parte Robert Lynn Pruett        ABEL ACOSTA, CLERK




               State’s Response
  to Application for Writ of Habeas Corpus
                      and
         Motion for Stay of Execution


  On Appeal in Cause Number B-01-M015-0-PR-B
From the 156th District Court of Bee County, Texas


            CAPITAL MURDER CASE
   EXECUTION DATE SET FOR APRIL 28, 2015




                                          Melinda Fletcher
                                            SBN 18403630
                                  Special Prosecution Unit
                                             P O Box 1744
                                   Amarillo, Texas 79105
                                     Phone 806.367.9407
                                        Fax 866.923.9253
                                  mfletcher@sputexas.org
                   Table of Contents


Index of Authorities .................................. 3
Statement of the Case ................................. 4
Statement of Facts .................................... 5
 Direct Appeal ........................................ 5
 Evidence from the DNA Hearing ........................ 7
Summary of the Argument ............................... 8
Argument .............................................. 9
 Pruett’s files his claim under Article 11.073 of
 the Texas Code of Criminal Procedure. That Article
 does not operate to grant him relief under the facts
 of this case. ........................................ 9
Prayer ............................................... 11
Certificate of Compliance ............................ 12
Certificate of Service ............................... 12




WR-62,099-04         State’s Response               pg. 2
                 Index of Authorities


Texas State Case Law

Pruett v. State, 2004 WL 3093232
    (Tex. Crim. App. 2004) ......................... 5, 6

Pruett v. State, No. AP-77,037 (Tex. Crim. App.
    Oct. 22, 2014) (not designated for publication),
    cert. denied, Pruett v. Texas, No. 14-8097
    (Mar. 30, 2015) ............................ 8, 9, 10



Texas Code of Criminal Procedure

Art. 11.073 .................................... 8, 9, 10




WR-62,099-04           State’s Response             pg. 3
                   Cause Number WR-62,099-04


                   Ex Parte Robert Lynn Pruett




To the Honorable Judges of the Court of Criminal Appeals:


     Respondent,       the     State    of      Texas,    respectfully

presents this response in opposition to the granting of

a Motion for Stay of Execution or a Writ of Habeas Corpus

to Robert Lynn Pruett. Pruett’s grounds for relief have

already been tried, they have already been tested, and

they have already failed.



                   Statement of the Case

     Pruett is scheduled to be executed on April 28, 2015.

He seeks a stay of execution and a writ of habeas corpus,

alleging   new   DNA    evidence       that     would    have   probably

changed the outcome of trial, as well as a conspiracy to

kill Nagle and frame Pruett. The State opposes the writ

and the stay of execution.




WR-62,099-04                 State’s Response                      pg. 4
                    Statement of Facts

Direct Appeal
     Pruett    appealed     his   capital    murder   conviction

directly to this Court, filed as cause number AP-74,370.

One of the issues raised on appeal was the trial court’s

refusal to allow Pruett to introduce evidence of an

alleged conspiracy against the murder victim, Nagle. See

Pruett v. State, 2004 WL 3093232, at *3 (Tex. Crim. App.

2004). This Court wrote:

     In his fourth point of error, the appellant again
     argues that the trial court denied him the
     fundamental constitutional right to present a
     meaningful defense. He specifically complains
     that the trial court erroneously excluded
     evidence “that Nagle's death may have been
     related    to    an    investigation    involving
     correctional officers smuggling contraband into
     the prison.
     Defense counsel informed the trial court outside
     the presence of the jury that he wanted to
     question Thomas J. Prasifka, the warden of the
     McConnell prison unit, about “the fact that
     there were 30 or more officers indicted for
     smuggling dope into the prison and that Officer
     Nagle may have actually ratted some of them out.”
     Defense counsel argued that this evidence was
     necessary to show that “[t]here was a motive for
     the gang members who were getting the drugs to
     kill Mr. Nagle, and there was a motive for
     corrupt guards to kill Mr. Nagle.” Defense


WR-62,099-04              State’s Response                 pg. 5
     counsel questioned Prasifka outside the jury's
     presence   to  determine   if   Nagle  had   any
     involvement in the investigation of the indicted
     correctional officers. Prasifka testified that
     Nagle did not act as an informant and had no
     involvement in the investigation. The trial
     court refused to permit defense counsel to
     pursue this line of questioning with Prasifka in
     front of the jury.
     Defense counsel failed to produce any evidence
     in support of his speculative theory that Nagle
     was killed in retaliation for acting as an
     informant   against  his   fellow   correctional
     officers. As this court noted in Wiley v. State,
     “The danger of ‘confusion of the issues' and
     ‘misleading the jury’ arises when circumstantial
     evidence tends to sidetrack the jury into
     consideration    of   factual    disputes   only
     tangentially related to facts at issue in the
     current case.” Prasifka denied that Nagle had
     any involvement in the investigation. Allowing
     the appellant to explore this issue without
     further evidence and in the face of Prasifka's
     denial of a link between Nagle and the
     investigation would serve no purpose but to
     “confus[e] the issues” and “mislead[ ] the
     jury.” The trial court did not abuse its
     discretion in refusing to permit defense counsel
     to question Prasifka about this issue in front
     of the jury. Point of error four is overruled.
Id., internal footnotes omitted.




WR-62,099-04          State’s Response                  pg. 6
Evidence from the DNA Hearing
     There was no live testimony presented at the hearing

on the Chapter 64 requests. (RR 1) The only evidence is

Defendant’s Exhibit 1 (DX1), a report from Mitotyping

Technologies. The report concludes:

     In   summary,   while   it   can  sometimes   be
     appropriate to analyze STR data below threshold
     for the purpose of excluding individuals, it is
     my opinion that it would not be appropriate to
     do so in this case. This is due to the
     insufficient DNA in the torn paper sample
     resulting in a high degree of uncertainty in the
     peaks   observed.    Therefore,   a   meaningful
     comparison between the torn paper sample and any
     known samples cannot be performed.
The record is devoid of any mention from any of the DNA

labs that results were not achieved due to inappropriate

handling or storage of the evidence.

     On April 20, 2015, this Court denied Pruett’s writ

of prohibition which alleged that new DNA technology is

available that would have probably changed the outcome

of the trial. This Court’s order denying relief in cause

WR-62,099-03, includes the following:

     Relator also filed in the trial court in May
     2013 a motion for post-conviction DNA and palm-
     print testing under Chapter 64 of the Texas Code
     of Criminal Procedure. The trial court granted

WR-62,099-04          State’s Response              pg. 7
      that testing. However, the results of the
      testing were inconclusive, and the trial judge
      found that it was not reasonably probable that
      relator would have been acquitted had the new
      results been available at trial. Relator
      appealed that decision to this Court, and we
      affirmed the judgment of the trial court. Pruett
      v. State, No. AP-77,037 (Tex. Crim. App. Oct.
      22, 2014) (not designated for publication),
      cert. denied, Pruett v. Texas, No. 14-8097 (Mar.
      30, 2015).



                  Summary of the Argument

      Pruett wishes to argue in this case (1) that there

was a conspiracy against the murder victim, and (2) that

new   DNA   technology     would      have   probably   changed    the

outcome     of   the   trial.   The    conspiracy   theory   is    not

recognizable under Art. 11.073 and the DNA argument has

been recently considered and rejected by this Court.

There is no reason to revisit the issue.

       Pruett has had his due process and is now subject

to execution. Writ should not issue to stay his execution

or to grant him any other relief.




WR-62,099-04              State’s Response                        pg. 8
                           Argument

Pruett’s files his claim under Article 11.073 of the Texas
Code of Criminal Procedure. That Article does not operate
to grant him relief under the facts of this case.


     Article 11.073 grants relief to a person when (1)

there    is    relevant   scientific   evidence   that   was    not

available to be offered at the time of trial, and (2) the

court makes the finding that if the scientific evidence

had been presented at trial, on the preponderance of the

evidence the person would not have been convicted. Tex.

Code Crim. Proc. Art. 11.073.

    Pruett’s writ asserts that “[h]ad the new scientific

evidence been presented to Pruett’s jurors, he probably

would not have been convicted.” (See p. 15 of Pruett’s

writ.)   However, the new technology has already been

applied to this case, with no conclusive results. See

Pruett v. State, 2014 WL 5422573, at *1. The trial court

determined that the inconclusive results would not have




WR-62,099-04              State’s Response                     pg. 9
probably resulted in a different verdict, and this Court

affirmed the trial court. Id. at *1-*2.

     Despite   the   inconclusive       findings   and     the

affirmation of the trial court’s decision, Pruett filed

cause number WR-62,099-03 with this Court, seeking relief

with the same argument. This Court denied that relief on

April 20, 2015.

    There is no new scientific evidence in this case that

would probably result in a different verdict at trial.

Pruett’s “Therefore Article 11.073 does not operate to

grant Pruett the relief he seeks.




WR-62,099-04         State’s Response                    pg. 10
                            Prayer

     Because   there   is   no   new   evidence   and   no   new

arguments, the State prays that this Honorable Court deny

Pruett’s Motion for Stay of Execution and his Writ of

Habeas Corpus.



                                  Respectfully Submitted,

                                  /s/ Melinda Fletcher

                                  Melinda Fletcher
                                  Appellate Attorney
                                  SBN 18403630

                                  Special Prosecution Unit
                                  P O Box 1744
                                  Amarillo, Texas 79105

                                  Phone 806.367.9407
                                  Fax   866.923.9253
                                  mfletcher@sputexas.org




WR-62,099-04           State’s Response                  pg. 11
               Certificate of Compliance

    I hereby certify that, according to Microsoft Word,

this response contains a total of only 1515 words. The

length of this document is in compliance with the Texas

Rules of Appellate Procedure.



                                /s/ Melinda Fletcher



                                Melinda Fletcher



                 Certificate of Service

     I hereby certify that a true and correct copy of the

foregoing Brief for the State was served on David Dow and

Jeff Newberry, the attorneys for Pruett, via electronic

mail on this the 21st day of April, 2015.



                                /s/ Melinda Fletcher



                                Melinda Fletcher




WR-62,099-04         State’s Response                  pg. 12
