                                                                                 WR-63,871-03
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 10/15/2015 1:59:28 PM
                                                                   Accepted 10/15/2015 4:15:30 PM
                         NO. C-2-010289-0764908-B                                   ABEL ACOSTA
                                                                                            CLERK

EX PARTE                                §           IN THE CRIMINAL DISTRICT
                                                                    RECEIVED
                                                             COURT OF CRIMINAL APPEALS
                                        §                          10/15/2015
                                        §           COURT NO. 2 OF
                                                                ABEL ACOSTA, CLERK
                                        §
TIMOTHY RANDAL THOMPSON                 §           TARRANT COUNTY, TEXAS


                         STATE'S RESPONSE TO
           APPLICANT’S SUPPLEMENTAL HABEAS CORPUS CLAIM


       COMES NOW, the State of Texas, by and through the Criminal District

Attorney of Tarrant County, Texas, and files this response to the applicant’s

supplemental claim for habeas corpus relief.



The Case in Brief/Procedural History:

       The applicant was convicted of murder on April 20, 2001, and sentenced

to twenty-five years’ confinement.    See Judgment.      The Court of Appeals

affirmed the applicant’s conviction finding that:

   •     The evidence was legally and factually sufficient;
   •     Trial counsel did not provide ineffective assistance by not
         requesting a sudden passion instruction;
   •     The trial court properly permitted the deceased’s widow to
         remain in the courtroom;
   •     The trial court did not violate the applicant’s substantial rights by
         permitting the deceased’s mother to remain in the courtroom;
   •     The trial court properly excluded evidence regarding the
         deceased’s violent conduct while under the influence of drugs;
   •     The trial court did not improperly comment on the evidence in
          responding to the applicant’s jury argument objection; and
   •      The trial court properly overruled the applicant’s objections to
          the State’s jury argument.

See Thompson v. State, Case No. 02-01-00202-CR (Tex. App. –- Fort Worth

2002, pet. refused) (not designated for publication).

       The applicant previously filed an application for writ of habeas corpus

on July 19, 2004, alleging that:

   •      The State used false and perjured evidence to obtain his
          conviction because the DNA testing results admitted during his
          trial lacked scientific validity;
   •      He was denied effective assistance because his counsels failed to
          challenge the State’s DNA evidence or obtain an independent
          expert analysis to ascertain any scientific invalidity in the State’s
          DNA evidence.

See Ex parte Thompson, No. C-2-006996-0764908-A (application).                The

trial court recommended that the applicant be denied relief on these claims.

See Ex parte Thompson, No. C-2-006996-0764908-A (order adopting

proposed findings of fact and conclusions of law).      This Court dismissed this

writ application on March 29, 2006.            See Ex parte Thompson, No.

WR-63,871-01 (white card).

       On August 19, 2014, the applicant filed an application for writ of habeas

corpus alleging that he was denied effective assistance of trial counsel.     See

Ex parte Thompson, No. C-2-010289-0764908-B (application).              The trial

court conducted live hearings on January 21, 2015, and January 30, 2015, in

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which the applicant’s two trial counsels – the Hon. Les Johns and the Hon.

Leon    Haley   –    each   testified.       See   Ex   parte   Thompson,     No.

C-2-010289-0764908-B (habeas reporter’s record).

       On April 9, 2015, the applicant amended this application to add an

allegation that he was denied effective assistance of appellate counsel.      See

Ex part Thompson, No. C-2-010289-0764908-B (amended application).

The State filed its amended proposed findings of fact and conclusions of law

on April 30, 2015.     See Ex parte Thompson, No. C-2-010289-0764908-B

(amended proposed findings of fact and conclusions of law).        The trial court

adopted the State’s amended proposed findings of fact and conclusions of law

on August 13, 2015.     See Ex parte Thompson, No. C-2-010289-0764908-B

(adoption order).

       On September 24, 2015, the applicant filed a supplemental application

for writ of habeas corpus alleging that his due process rights were violated by

the State’s use of false or perjured testimony during his trial.    See Ex parte

Thompson, No. C-2-010289-0764908-B (supplemental application)



Discussion:

       The applicant contends that his due process rights were violated

because the crime scene investigator presented false testimony.

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A.    Standard of Review

      The Due Process Clause of the Fourteenth Amendment can be violated

when the State uses false testimony to obtain a conviction, regardless of

whether it does so knowingly or unknowingly.         See Ex parte Chavez, 371

S.W.3d 200, 207-08 (Tex. Crim. App. 2012); Ex parte Robbins, 360 S.W.3d

446, 459 (Tex. Crim. App. 2011); Ex parte Chabot, 300 S.W.3d 768, 770-71

(Tex. Crim. App. 2009); U.S. Const. amend. XIV. Testimony need not be

perjured to constitute a due-process violation; rather, it is sufficient that the

testimony was false.    Ex parte Chavez, 371 S.W.3d at 208; Ex parte Robbins,

360 S.W.3d at 459.     The question is whether the testimony, taken as a whole,

gives the jury a false impression.    Ex parte Chavez, 371 S.W.3d at 208; Ex

parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011); Alcorta v.

Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

      To constitute a due-process violation, the record must show that the

testimony was material; namely, that there is “a reasonable likelihood” that

the false testimony affected the judgment of the jury.      Ex parte Chavez, 371

S.W.3d at 209; Ex parte Ghahremani, 332 S.W.3d at 478.          Materiality must

be reviewed in light of the entire record.     Ex parte Chavez, 371 S.W.3d at

209-10.



                                        4
B.     Alleged False Statement

       The applicant contends that crime scene investigator Mark Ball gave

false or perjured testimony when he testified that he searched the applicant’s

house on March 31, 2000, and did not find any bullets or bullet holes in the

living room floor.   See Trial Reporter’s Record IV:160-61, 178-79, 187.

       On July 10, 2008, forensic scientist Edward Hueske examined the

applicant’s house where this murder occurred.         See Ex parte Thompson, No.

C-2-010289-0764908-B (application – exhibit G).          During this examination,

Mr. Hueske recovered two bullets from the house’s living room floor.       See Ex

parte Thompson, No. C-2-010289-0764908-B (application- exhibit G).

       In February 2015, Mr. Hueske compared the bullets he recovered in

2008 with the semi-automatic pistol used by the applicant in this murder.

See Ex parte Thompson, No. C-2-010289-0764908-B (amended application-

exhibit H).   Mr. Hueske determined that, to a reasonable degree of scientific

certainty, the bullets recovered from the living room floor were fired by or

from    the   applicant’s   pistol.        See   Ex    parte   Thompson,     No.

C-2-010289-0764908-B (amended application- exhibit H).



C.     Investigator Ball Did Not Present False Testimony

       Investigator Ball did not present false testimony because he merely

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testified about the search he conducted and what he did or did not find in

searching the floors.    See Trial Reporter’s Record IV:160-61, 178-79, 187.

Nothing from Mr. Hueske’s discovery or examination demonstrates that Mr.

Ball found bullets or bullet holes and lied about it to the jury, or that any other

testimony by Mr. Ball was false.             Mr. Ball even acknowledged on

cross-examination that, given the bloody crime scene, there was a chance that

he could have missed bullets or bullet holes while searching the floors.       See

Trial Reporter’s Record IV:187.       Thus, it cannot be said that Mr. Ball’s

testimony as a whole constituted false testimony.



D.    Alleged False Statement Not Material to Conviction

      There is no reasonable likelihood that any falsity in Mr. Ball’s testimony

regarding his bullet/bullet hole search affected the applicant’s conviction.



1.    Quality of Crime Scene Investigation

      The applicant was not precluded from attacking the quality of the police

crime scene investigation.       As addressed above, Mr. Haley vigorously

cross-examined Mr. Ball who ultimately admitted that he could have missed

bullets or bullet holes when searching the living room floors.           See Trial

Reporter’s Record IV:187.

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         The applicant raised further questions regarding the thoroughness of

Mr. Ball’s investigation when his original attorney – the Hon. Paul Sorenson –

testified that, on April 23, 2000, he observed bullet holes in the living room

floor.     See Trial Reporter’s Record V:105-06, VIII:Defense Exhibits #7-9.

Mr. Sorenson even stated on cross-examination that he observed something

he considered to be a bullet in the living room floor.       See Trial Reporter’s

Record V:111.      Mr. Johns emphasized Mr. Sorenson’s discovery to the jury.

See Trial Reporter’s Record VI:11.       Put simply, any such inadequacy was

placed for consideration before the jury.



2.       Applicant Not Hampered From Presenting Warning Shot Aspect of
         Self-Defense Claim

         The applicant was not hampered from presenting the warning shot

aspect of his self-defense claim before the jury by any inadequacies in Mr.

Ball’s crime scene investigation.    The trial reporter’s record shows that:

     •     The applicant testified that he first fired one round beside Mr.
           Walker and two rounds in front of him. See Trial Reporter’s
           Record V:133.

     •     The appellant fired another round at the floor, but the bullet hit
           Mr. Walker in his foot. See Trial Reporter’s Record V:134.

     •     After killing Mr. Walker, the applicant picked up five shell casings
           from the floor and put them in a cigarette package. See Trial
           Reporter’s Record V:150-51.
                                         7
     •     The five shell casings were introduced into evidence along with
           the gun. See Trial Reporter’s Record IV:201, 213-14.

Thus, the jury was not fully deprived of evidence supporting the appellant’s

warning shot claim despite Mr. Ball’s inability to find bullets in the living room

floor.



3.       Applicant Not Hampered From Presenting General Self-Defense Claim

         The applicant was not hampered from investigating and presenting his

general self-defense claim by any inadequacies in Mr. Ball’s crime scene

investigation.

         Upon his appointment, Mr. Johns contacted Mr. Sorenson, and obtained

a copy of his file.    See Habeas Reporter’s Record II:25; Mr. Johns’ Billing

Statement, page 1.      Mr. Johns also had access to the police reports and the

witness statements in the State’s file.       See Habeas Reporter’s Record III:13.

Mr. Johns reviewed these materials to help formulate the appellant’s defense.

See Mr. Johns’ Billing Statement, pages 1 & 2.        Mr. Johns obtained and used

the services of private investigator Cliff Ginn in formulating the appellant’s

defense.     See Habeas Reporter’s Record II:7-8, 25; Mr. Johns’ Affidavit, page

1; Mr. Johns’ Billing Statement, page 4; Mr. Ginn’s Billing Statement, page 2.

         Mr. Johns’ defense investigation focused on why the applicant shot Mr.

                                          8
Walker rather than who shot Mr. Walker since the applicant admitted to the

shooting.    See Habeas Reporter’s Record II:26.         Mr. Johns met with the

applicant on numerous occasions who told him that:

   •      He and Mr. Walker did drugs together;

   •      Mr. Walker was substantially larger than him;

   •      Mr. Walker would not leave his house;

   •      Mr. Walker was agitated and threatened him;

   •      He was afraid of Mr. Walker; and

   •      He only pointed a gun at Mr. Walker after he threatened him.

See Habeas Reporter’s Record II:9-10, 27-28. Mr. Johns’ Billing Statement,

pages 2-6.    Mr. Johns and Mr. Haley chose to focus on the sixty-pound weight

differential between the applicant (126 pounds) and Mr. Walker (186 pounds)

and the applicant’s statement that the applicant’s gun discharged when Mr.

Walker tried to grab it.    See Mr. Johns’ Affidavit, page 1.

       During his trial, the applicant testified that:

   •      Mr. Walker was substantially larger than himself.         See Trial
          Reporter’s Record V:130.

   •      Mr. Walker became belligerent when he asked Mr. Walker to leave
          his house. See Trial Reporter’s Record V:130-31.

   •      Mr. Walker threatened to sexually assault him with the gun and
          with his penis. See Trial Reporter’s Record V:131-32.


                                          9
     •      Mr. Walker jumped at the applicant which caused him to fire the
            gunshot that hit Mr. Walker’s foot. See Trial Reporter’s Record
            V:134.

     •      Mr. Walker pulled him to the floor by his pants leg and grabbed
            his shoulder which caused him to fire the fatal gunshot. See
            Trial Reporter’s Record V:138, 178.

The applicant’s self-defense claim was not predicated on whether the

applicant fired a warning shot before shooting Mr. Walker in the foot.12



4.       Impact of Warning Shot Claim Undermined by Applicant’s Conduct
         Following Alleged Warning Shot.

         Any impact from the applicant’s warning shot claim was undermined by

his own conduct after his initial warning shots; specifically evidence that:

     •      The applicant fired a gunshot into Mr. Walker’s foot.             See Trial
            Reporter’s Record V:134.

     •      The applicant followed Mr. Walker into the corner to get him to
            remove his shoe from his wounded foot. See Trial Reporter’s
            Record V:135-37.

     •      When Mr. Walker still refused to leave, the applicant began

1        During the course of Mr. Johns’ representation, the applicant told him eight
         or nine different factual versions of how or why he shot Clayton Walker,
         including a new version on the morning of trial. See Habeas Reporter’s
         Record II:8; Mr. Johns’ Affidavit, page 1.

2        The applicant also suggested an accident defense by testifying that the gun
         fired accidentally when he was trying to club Mr. Walker with it, and that he
         did not intend to shoot Mr. Walker. See Trial Reporter’s Record V:138, 186.
         This accident theory renders any earlier warning shot irrelevant and
         immaterial.

                                              10
           kicking his wounded foot.      See Trial Reporter’s Record V:138,
           177-78.

     •     The applicant was trying to club Mr. Walker with his gun when he
           fired the fatal shot. See Trial Reporter’s Record V:138.

Given the applicant’s conduct, any inadequacies in Mr. Ball’s crime scene

investigation did not materially undermine the warning shot aspect of his

self-defense claim.



5.       General Self-Defense Claim Undermined by Applicant’s Conduct Before
         and After Clayton Walker’s Death.

         The applicant’s self-defense claim was undermined by his own conduct

before and after Clayton Walker’s death; specifically evidence that:

     •     A nervous and anxious Clayton Walker pointed at the applicant’s
           house and told Shelley Little that the applicant was trying to kill
           him. See Trial Reporter’s Record III:41-43.

     •     Ms. Little later observed the applicant drive his truck in pursuit of
           a fleeing Mr. Walker. See Trial Reporter’s Record III:44-45.

     •     The applicant shot Mr. Walker even though he never physically
           touched him. See Trial Reporter’s Record V:174.

     •     The applicant did not call the police after he shot Mr. Walker.
           See Trial Reporter’s Record V:140.

     •     The applicant tried to clean up the crime scene with ammonia.
           See Trial Reporter’s Record V:142.

     •     The applicant took the five shell casings from his living room floor
           when he left his house. See Trial Reporter’s Record V:150.
                                         11
     •      The applicant told Rhonda Carlson and James Crafton that he had
            shot and killed someone for failing to “shut up”. See Trial
            Reporter’s Record IV:13, 37-38.

     •      The applicant laughed while discussing having shot Mr. Walker in
            the left temple. See Trial Reporter’s Record IV:14-15, 41.

     •      The applicant sought help to dispose of Mr. Walker’s body.   See
            Trial Reporter’s Record IV:14-15.

     •      The applicant told Michael Hendricks that he shot Mr. Walker in
            the head because he would not “shut up”. See Trial Reporter’s
            Record V:80.

     •      The applicant asked Mr. Hendricks to help him dispose of Mr.
            Walker’s Body. See Trial Reporter’s Record V:81.

Given the applicant’s conduct, any inadequacies in Mr. Ball’s crime scene

investigation did not materially undermine the applicant’s general

self-defense claim.



6.       Ex parte Chabot Factually Distinguishable

         The factual situation in Ex parte Chabot is markedly different from the

present case.     In Chabot, the defendant and another man, Gerald Pabst went

to the deceased’s house looking for drugs and money related to a recent drug

deal involving the deceased’s husband.       See Ex parte Chabot, 300 S.W.3d at

769.      Pabst testified that Chabot sexually assaulted and killed the deceased

while he was in another room.         See Ex parte Chabot, 300 S.W.3d at 770.
                                        12
Subsequent DNA testing proved that Pabst was the person who sexually

assaulted the deceased.       See Ex parte Chabot, 300 S.W.3d at 770.          Thus,

Pabst’s testimony implicating Chabot was scientifically proven to be false.

         Given these facts, Ex parte Chabot differs from the present case in

several key aspects:

     •       Pabst’s false statements were the key evidence against Chabot.
             See Ex parte Chabot, 300 S.W.3d at 770. Mr. Ball’s crime scene
             investigation was just one piece of the evidence against the
             applicant.

     •       Pabst’s factual allegation inculpating Chabot was scientifically
             proven to be false. See Ex parte Chabot, 300 S.W.3d at 770.
             Mr. Hueske’s investigation and testing only showed Mr. Ball’s
             testimony to be arguably inaccurate or his investigation to have
             been sloppy.

     •       Pabst’s false statements were deliberately false. See Ex parte
             Chabot, 300 S.W.3d at 770. The record does not suggest that
             any inaccuracies in Mr. Ball’s testimony were deliberately false.

     •       The Chabot jury was specifically instructed that it had to find
             Pabst’s testimony to be true in order to convict Chabot. See Ex
             parte Chabot, 300 S.W.3d at 770. No similar jury instruction
             was given in this case.


7.       Conclusion

         There is no reasonable likelihood that any falsity in Mr. Ball’s testimony

affected the jury’s judgment of conviction given that:

              His testimony about not “finding” any bullets or bullet holes
               was not proven false;
                                         13
              The defense was not precluded from challenging the quality
               of his crime scene investigation;
              The defense was not hampered from presenting its
               self-defense claim; and
              The applicant’s self-defense claim was actually undermined
               by his own conduct following Clayton Walker’s death.

Thus, any false statement by Mr. Ball was not material to the applicant’s

conviction and did not violate his due process rights.      See Ex parte Chavez,

371 S.W.3d at 208-10.



E.       Alleged False Statement Not Material to Sentencing

         There is no reasonable likelihood that any falsity in Mr. Ball’s testimony

affected the applicant’s sentence.     In addition to the facts of this murder, the

jury heard information that:

     •       Several months before Mr. Walker’s murder, the applicant came to
             Jessie Little’s door armed with two pistols and a longer gun, and
             claimed that Ms. Little tried to shoot her roommate. See Trial
             Reporter’s Record VII:7-8.

     •       The applicant had previously been in rehabilitative treatment for
             drug addiction. See Trial Reporter’s Record VII:3; VIII:State’s
             Exhibits #70 & 71.

     •       The applicant had previously engaged in drug dealing.    See Trial
             Reporter’s Record VII:15; VIII:State’s Exhibit #71.

     •       The applicant continued to use illegal drugs despite his family’s
             numerous attempts to assist him. See Trial Reporter’s Record
             VII:18, 21-22.


                                         14
In other words, the jury heard evidence that imprisonment was the

appropriate punishment for this murder.             Thus, there is no reasonable

likelihood that any falsity in Mr. Ball’s testimony affected the jury’s sentencing

decision.

        The factual situation in Ex parte Ghahremani differs greatly from this

case.    In Ghahremani, the only noteworthy punishment evidence came from

the false testimony by the complainant’s father solely attributing her changed

behavior and her being sent to an intensive treatment boarding school due to

her sexual assault by the defendant.        See Ex parte Ghahremani, 332 S.W.3d

at 473-74, 480.3      Here, the State presented significant evidence unrelated to

Mr. Ball’s testimony justifying the applicant’s prison sentence.

        Furthermore, unlike this case, the Ghahremani prosecutors knew or

should have been aware that the father’s testimony was false or misleading

since they knew about the complainant’s sexual relationship with the other

man well before the defendant’s trial.           See Ex parte Ghahremani, 332

S.W.3d at 474.      While due process violations may occur with the unknowing

use of false testimony, the State’s knowledge is still a relevant factor in


3       The fifteen-year-old complainant in Ghahremani was also having sexual
        relations with a twenty-five-year-old man, which was another reason why
        the complainant was sent to the intensive treatment boarding school. See
        Ex parte Ghahremani, 332 S.W.3d at 473-74.

                                          15
determining whether a defendant’s due process rights were violated.           See Ex

parte Ghahremani, 332 S.W.3d at 478.4

      In sum, any falsity in Mr. Ball’s testimony was not material to the

applicant’s sentencing and did not violate his due process rights.            See Ex

parte Chavez, 371 S.W.3d at 208-10.



F.    Conclusion

      The applicant’s due process rights were not violated by Mr. Ball’s

testimony regarding his crime scene search for bullets and bullet holes.          Mr.

Ball did not falsely testify before the jury regarding his crime scene

investigation.   Alternatively, there is no reasonable likelihood that any

falsity in Mr. Ball’s testimony affected the applicant’s conviction or sentencing.

      The applicant’s supplemental ground for relief should be denied.




4     Ghahremani also involved a Brady violation which was not addressed by the
      Court of Criminal Appeals. See Ex parte Gharemani, 332 S.W.3d at 477.
                                         16
         WHEREFORE, PREMISES CONSIDERED, the State prays the Court find

that the applicant’s supplemental due process ground for relief is without

merit.

                                        Respectfully submitted,

                                        SHAREN WILSON
                                        Criminal District Attorney
                                        Tarrant County, Texas

                                        DEBRA WINDSOR, Chief
                                        Post-Conviction Unit

                                        /s/ Steven W. Conder
                                        STEVEN W. CONDER, Assistant
                                        Criminal District Attorney
                                        401 W. Belknap
                                        Fort Worth, Texas 76196-0201
                                        (817) 884-1687
                                        FAX (817) 884-1672
                                        State Bar No. 04656510


                           CERTIFICATE OF SERVICE

         A true copy of the above response has been mailed and electronically

transmitted to the applicant’s counsel, the Hon. Robert Udashen

(rnu@sualaw.com), 2311 Cedar Springs Road, Suite 250, Dallas, Texas 75201,

on this, the 15th of October, 2015.


                                        /s/ Steven W. Conder
                                        STEVEN W. CONDER


                                       17
                        CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App.

P. 73.1(e) because it has been prepared in a conventional typeface no smaller

than 14-point for text and 12-point for footnotes.       This document also

complies with the word-count limitations of Tex. R. App. P. 73.1(d) because it

contains approximately 3253 words, excluding any exempted parts, as

computed by Word 2010, the computer program used to prepare the

document.

                                         /s/ Steven W. Conder
                                         STEVEN W. CONDER


c18.thompson timothy randal.wr/supplemental/reply




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