            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. WR-74,973-01



                     EX PARTE BILLY RAY BRYANT, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            IN CAUSE NO. CR01125 IN THE 102ND DISTRICT COURT
                        FROM RED RIVER COUNTY

       H ERVEY, J., delivered the opinion of the Court in which M EYERS, P RICE,
J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a
dissenting opinion. W OMACK, J., concurred in the result.

                                        OPINION

       Applicant, Billy Ray Bryant, was convicted of capital murder and sentenced to

confinement for life without the possibility of parole. Applicant argues that he received

ineffective assistance of counsel at his trial. We will grant relief.

                                        B ACKGROUND

       The facts of this case primarily involve two families and their acquaintances living

near the Texas–Oklahoma border in Red River County. Johnny Victory (Johnny) was

married to Stella Walls Victory (Stella), and Kenneth Raulston (Kenneth) was married to
                                                                                  Bryant—2

Sarah Raulston (Sarah). The Victorys had three children who were involved in this case:

Jonathan, Aaron, and Dalinda. At the time of the incident, Jonathan, ten, was the oldest,

Dalinda was nine, and Aaron was eight.

       In 1987, both couples separated. Johnny began living with Sarah, and later,

Kenneth began living with Stella. Sarah subsequently retained an attorney to initiate

divorce proceedings and obtained a temporary restraining order against her husband

Kenneth. The evening of February 10, 1987, the three Victory children, Johnny, and

Sarah, ran some errands and went to eat at a nearby Pizza Hut. After eating, Johnny,

Sarah, and the Victory children returned to Sarah’s home in Red River County. It was

about 9:00 p.m. Aaron rode with Johnny in his car and Jonathan and Dalinda rode with

Sarah in her car. Shortly after Johnny and Sarah exited their vehicles, they were shot and

killed. Johnny was shot in the head twice, and Sarah was shot in one arm and her head.

       The lead investigator, Texas Ranger Almond, took approximately 70 photographs

of the scene, collected 34 physical exhibits, and submitted a final report 60 or 70 pages in

length. About 35 to 40 people were interviewed during the investigation, including the

Victory children, who were interviewed multiple times. Throughout the interviews, the

children told police that on the night of the murders they saw Kenneth, a man named

Mitchell Dickey (Mitchell), and one other individual named Tom. And although Ranger

Almond testified at first that none of the children could identify “Tom,” he later changed

his testimony and stated that Jonathan identified a man in a lineup named Jim Ed
                                                                                         Bryant—3

Monkhouse as the Tom the children saw that night. Despite that identification, the ranger

testified that Monkhouse was excluded as a suspect. Ranger Almond did believe,

however, that a third shooter was involved, but he did not believe that the third shooter

was a person named Tom as the kids had stated in 1987.1 After completing his

investigation of the murders, Ranger Almond testified that there was no evidence

implicating Applicant or anyone else in the crime.

       Nonetheless, within a year a grand jury indicted Kenneth and Mitchell for capital

murder.2 After the indictments were returned, Kenneth died in an automobile accident

while allegedly attempting to force Stella off of a road after the two had an argument. He

collided head-on with another car, killing the occupants, a young boy and his father. The

State eventually dismissed the capital-murder indictment against Mitchell.3


       1
         It appears from the record that Ranger Almond thought that the children were not telling
the truth in 1987 that a third person named Tom was involved in the murders because the
children were scared. However, we note that the children identified both Kenneth and Mitchell as
being involved in the murders despite any fear the children may have felt. Moreover, in 1987,
Jonathan also successfully identified the Tom the children spoke of as Jim Ed Monkhouse, which
seems to contradict Ranger Almond’s conclusion.
       2
         Although Kenneth and Mitchell were indicted for capital murder, Sheriff Reed stated
that he did not believe the case “could make it” when it was indicted.
       3
         The capital-murder indictment against Mitchell was dismissed for lack of evidence after
the case had been reopened and Mitchell accepted the State’s plea-bargain offer. The State
promised Mitchell a sentence within the range of 5-10 years in exchange for pleading guilty to
murder and testifying against Applicant. Mitchell was sentenced to 5 years’ confinement to run
concurrently with his other state sentences. At trial, the defense suggested that Mitchell agreed to
cooperate against Applicant to reduce the charge against him from capital murder—from which
he could never be paroled—to murder, from which he could be paroled as soon as three years
after conviction. And in closing arguments, the defense stated:
                                                                                        Bryant—4

       The case was cold until a new sheriff, Terry Reed, was elected. He reopened the

investigation into the double homicide about 19 years after the State elected not to pursue

the indictment against Mitchell, and Kenneth had died in the automobile accident. The

new investigation uncovered several things. First, DNA testing was performed on a beer

can found at the scene in 1987, which had only Kenneth’s fingerprint on it. Second,

information had come to light from a person incarcerated with Mitchell—Donnie

Miller—who told investigators that Mitchell had told him that he personally used a

shotgun to murder Johnny and Sarah.4 Investigators interviewed Mitchell after receiving


       I would suggest to you what happened to [Mitchell] is he shows up down here,
       going to turn himself in on this blue warrant [for violating his parole], [and] hope
       he doesn’t catch a lot of time. They start asking him about this [capital] murder
       again, and he says well, gee, I have already passed two polygraphs. I can do that
       again. Whoops! Turns out maybe he can’t do that again, so now what is the boy to
       do?

       Better cut my losses as best I can. I’ll blame it on [Applicant], and that’s exactly
       what he did. So he can get a deal for five years in prison, running concurrent with
       what he has got now. He told you, yeah, I could get parole in a couple of years.
       You think he has got a motive? You think he’s got an interest in this thing? That’s
       his interest. His interest is not in anything to do with Victory’s children, closure
       for them and closure for him. What he’s interested in is how fast can I get out of
       the penitentiary.
       4
         Mitchell confessed to Donnie when they were both confined at the Red River County jail
“right after the murders.” In a written statement given to investigators, Donnie stated that
Mitchell told him that:

       [H]e had been paid to kill a man that was a boyfriend and lover of Sara Raulston.
       Mitchell told me that he went to Sara Raulston’s house to kill the man and when
       he got there he shot and killed the man by the doorway. Mitchell said that Sara
       also arrived at the house and he also killed her. Mitchell told me that he heard
       some kids in the house and so he fled the scene. He said that the kids were Sara’s
       kids and that the kids would know him. . . . Mitchell also told me that Kenneth
       Raulston, Sara Raulston’s husband had hired him to kill the man. . . . Mitchell
                                                                                         Bryant—5

the information from Donnie Miller. When Mitchell spoke with investigators, he initially

maintained that he knew nothing about the murders. Later, however, after being told that

he failed a polygraph test, he admitted that he was involved, but he implicated Applicant

and stated that he acted only as the get-away driver. Aaron gave a new statement that

“mainly focused in on Mitchell . . . ” but also indicated that other people were present the

night of the murders, including Applicant. Finally, Janie Mussett (Janie), Applicant’s live-

in girlfriend at the time of the murders, was interviewed by police once the case was

reopened, and after being told that she also failed a polygraph test, she signed a written

statement implicating Applicant.

       Applicant was indicted by a Red River County grand jury for capital murder. After

a two-day trial in January 2008, Applicant was convicted and sentenced to confinement

for life without the possibility of parole. He appealed to the Texarkana Court of Appeals,

which affirmed his conviction. See Bryant v. State, 282 S.W.3d 156, 176 (Tex.

App.—Texarkana 2009, pet. ref’d). We refused his petition for discretionary review.5

       Applicant then filed an application for a writ of habeas corpus. On January 12,

2011, we held his application in abeyance and ordered the convicting court to make



       said that Kenneth Raulston wanted the man killed because Kenneth believed that
       Sara was going to divorce him and he would loose (sic) his property and kids.
       5
         Applicant’s petition for discretionary review was originally dismissed on August 19,
2009, but, on rehearing, this Court reinstated his petition on October 7, 2009. See Bryant v. State,
No. PD-0594-09, 2009 WL 3215669 (Tex. Crim. App. Oct. 7, 2009) (per curiam) (op. on reh’g)
(not designated for publication). Nonetheless, Applicant’s petition for discretionary review was
later refused on November 4, 2009.
                                                                                     Bryant—6

findings of fact and conclusions of law as to whether Dalinda, Johnny’s daughter,

committed perjury when she changed her testimony as a rebuttal witness and implicated

Applicant after testifying favorably for Applicant. See Ex parte Bryant, No. WR-74,973-

01, 2011 WL 199058 (Tex. Crim. App. Jan. 12, 2011) (per curiam) (not designated for

publication). On September 12, 2012, after receiving the supplemental record from the

convicting court, we determined that Applicant’s perjury claim was without merit. See Ex

parte Bryant, No. WR-74,973-01, 2012 WL 4048839 (Tex. Crim. App. Sept. 12, 2012)

(per curiam) (not designated for publication). However, instead of denying the

application, this Court held the application in abeyance again and ordered the trial court to

make additional findings of fact and conclusions of law as to whether Applicant’s trial

counsel was deficient and, if so, whether counsel’s deficient performance prejudiced

Applicant. Id. The convicting court, after making additional findings, recommended that

we deny relief. We subsequently filed and set Applicant’s case for submission. See Ex

parte Bryant, No. WR-74,973-01, 2014 WL 467830 (Tex. Crim. App. Feb. 5, 2014) (per

curiam) (not designated for publication).

            A PPLICANT CAN RAISE HIS POSTCONVICTION-POLYGRAPH CLAIM

       In this Court, Applicant has briefed one ineffective-assistance-of-counsel claim:6

whether Applicant’s trial counsel was ineffective because of his repeated failures to

object to polygraph evidence about Janie. However, before we address the merits of

       6
        Applicant raised eight grounds in his memorandum attached to his application for a writ
of habeas corpus, but he briefed only one of those issues to this Court.
                                                                                            Bryant—7

Applicant’s claim, we must address a threshold issue raised by the convicting court in its

findings of fact and conclusions of law: Whether the court of appeals already ruled on the

merits of the polygraph claim, thereby precluding our review under Ex parte Acosta, 672

S.W.2d 470, 472 (Tex. Crim. App. 1984).

       Applicant argues that the court of appeals did not address the merits of his claim

on appeal because it held that the record was “silent” as to the issue. See Bryant, 282

S.W.3d at 172. He also asserts that, assuming the court of appeals did rule on the merits

of his claim, he has brought forth new evidence, namely the affidavit response from trial

counsel and a voicemail from trial counsel to Applicant’s current counsel, that allows him

to reurge his claim. Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004)

(holding that although an appellant raised an ineffective-assistance-of-counsel claim on

direct appeal and a court of appeals ruled on the merits of the claim, that appellant’s claim

could be properly raised again in a postconviction proceeding if he provides additional

evidence to prove his claim). The State does not appear to resist Applicant’s reurging of

his claim to this Court.7


       7
        In the first footnote of the State’s brief, and in reference to the repeated citation by the
convicting court of our decision in Acosta, the State conceded:

       The State will acknowledge, however, that “[c]laims of ineffective assistance of
       counsel are frequently raised on direct appeal without the benefit of an adequate
       record and then re-urged on a writ of habeas corpus after they have been
       adequately developed in a post-conviction evidentiary hearing.” See Ex parte
       Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). In Ex parte Torres, 943
       S.W.2d 469 (Tex. Crim. App. 1997), this Court held that “because the direct
       appeal record contained insufficient evidence to evaluate the ineffectiveness
                                                                                          Bryant—8

       We need not decide whether the court of appeals rejected Applicant’s claim on the

merits because we hold that his claim falls within the ambit of the Nailor exception in

light of the new evidence presented. Therefore, Applicant’s claim is not barred, and he

may reurge it now. We now turn to Applicant’s claim.

                                     A PPLICANT’S CLAIM

       Applicant argues to this Court that his trial counsel was ineffective. Specifically,

Applicant alleges that his counsel was deficient for repeatedly failing to object to

references to Janie’s polygraph test and the results of that test, and Applicant was

prejudiced by trial counsel’s deficiency.

       First, Applicant asserts that trial counsel’s failure to object to the repeated

mentioning of Janie’s polygraph test was objectively unreasonable because of this Court’s

past decisions and decisions of other Texas courts across the State. He cites a litany of

decisions stating that the fact that a person took a polygraph test and the results of such a

test are never admissible.8 Thus, Applicant concludes, trial counsel’s error was deficient


       issue, . . . The rejection of [applicant’s] claim on direct appeal does not bar
       relitigation of his claim on habeas corpus to the extent that applicant seeks to
       gather and introduce additional evidence not contained in the direct appeal
       record.” See id. at 475.

State’s Brief, No. WR-74,973-01, at 17–18 n.1.
       8
        See Tennard v. State, 802 S.W.2d 678, 683–84 (Tex. Crim. App. 1990); Nethery v. State,
692 S.W.2d 686, 700 (Tex. Crim. App. 1985); Crawford v. State, 617 S.W.2d 925, 930–31 (Tex.
Crim. App. 1980) (op. on orig. submission); Fernandez v. State, 564 S.W.2d 771, 773 (Tex.
Crim. App. [Panel Op.] 1978); Cardenas v. State, 960 S.W.2d 941, 947–48 (Tex.
App.—Texarkana 1998, pet. ref’d); Jones v. State, 680 S.W.2d 499, 502 (Tex. App.—Austin
1983, no pet.).
                                                                                        Bryant—9

as a matter of law because the evidence was not admissible even by stipulation of the

parties. He also argues that trial counsel’s failure to object was not a strategic decision

supported by the record or prevailing professional norms. As to professional norms,

Applicant asserts that this Court, and other appellate courts in Texas, have held defense

counsel deficient who allowed “unfettered bolstering” of witnesses and patently

objectionable testimony to be elicited in front of a jury.9 As to Applicant’s assertion that

trial counsel had no reasonable trial strategy, Applicant cites two pieces of evidence.

First, he directs us to his trial counsel’s affidavit in which he stated that he should have

objected to the polygraph evidence. Second, Applicant cites a voicemail from trial

counsel to Applicant’s current counsel, allegedly discussing the admission of the

polygraph evidence and stating,

       Jason, Dan Meehan on, uh, Billy Bryant, uh, the judge was here when I
       talked to you yesterday so I talked with him. I think probably, uh, he wasn’t
       going to do anything for Billy if I said I was high on cocaine during the
       trial. But, uh, anyway, I talked to him and told him I didn’t have any idea
       what happened or that there was anything tactical to it, but I don’t -- like I
       said, my impression was he wasn’t going to do anything to help. But if you
       need to talk about or want to talk about it gimme a call . . . talk to you later.

This lends credence to Applicant’s contention that his trial counsel had no reasonable



       9
         See Robertson v. State, 187 S.W.3d 475, 484–85 (Tex. Crim. App. 2006) (the appellant’s
trial lawyer was deficient when he allowed the jury to hear prejudicial and clearly inadmissible
evidence of prior convictions); Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.—Texarkana
2004, pet. ref’d) (finding “no conceivable strategy or tactic that would justify” allowing “clearly
and unquestionably objectionable testimony of the most outrageous and destructive type”
regarding inadmissible evidence that a child witness was being untruthful when he made
allegations of sexual molestation ).
                                                                                  Bryant—10

strategy when he allowed the polygraph evidence to be elicited. In addition, the allegation

that trial counsel, a witness in these postconviction proceedings, engaged in ex parte

communication with the judge is troubling. Applicant’s habeas counsel was sufficiently

concerned about the communication that, once he was made aware of it, he filed a motion

to recuse the judge, but the motion was denied.

       Finally, Applicant argues that he was prejudiced by his trial counsel’s deficient

conduct because, if trial counsel had objected and requested a mistrial, it should have

been granted. See Long v. State, 10 S.W.3d 389, 398–99 (Tex. App.—Texarkana 2000,

pet. ref’d) (citing Nichols v. State, 378 S.W.2d 335, 337–38 (Tex. Crim. App. 1964)

(stating that it is “highly prejudicial” to introduce into evidence that someone took a

polygraph test, that “no instruction from the court [can] remove” that prejudice, and that

the judge erred by not granting appellant’s motion for new trial); Banda v. State, 727

S.W.2d 679, 682–83 (Tex. App.—Austin 1987, no pet.)).

       The State responds that “[t]he history of this Court’s dealings with polygraph

evidence is long but not very complicated. For more than sixty years, this Court has not

once wavered from the proposition that ‘the results of polygraph examinations are

inadmissible over proper objection because the tests are unreliable.’” State’s Brief, No.

WR-74,973-01, at 20–21 (quoting Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim.

App. 2012) (op. on reh’g)). However, the State argues that for this Court to hold that

defense counsel’s representation amounted to deficient conduct, this Court “must
                                                                                      Bryant—11

necessarily hold that, under all circumstances, the failure to object to polygraph

examinations [falls] below an objective standard of reasonableness, and comprised per se

ineffective assistance [of counsel].” Further, the State asserts that there was a strategic

reason for not objecting to the polygraph evidence, and it relies on the findings of fact

from the convicting court to support its assertion.

       Alternatively, the State asserts that Applicant cannot meet the prejudice prong of

the Strickland test because this Court has held that a defendant is prejudiced only when

the fact that a defendant or a crucial witness took a polygraph test and the results of that

test came to light at trial. Compare Tennard, 802 S.W.2d at 683–84, with Robinson v.

State, 550 S.W.2d 54, 59–60 (Tex. Crim. App. 1977) and Nichols, 378 S.W.2d at

336–37.10 Furthermore, the State argues that Applicant “did not, and could not, establish

that the result would have been different in the present case because other individuals”

saw Applicant, Aaron identified Applicant as the man who murdered his father, and Janie

and Mitchell were not the sole witnesses at trial to prove Applicant’s guilt nor were they

crucial witnesses.

                                 T HE POLYGRAPH EVIDENCE

       Janie was called by the State during its case-in-chief as its sixth witness. The State

began by asking her a few preliminary questions, including whether she remembered


       10
         The State appears to agree with Applicant that the polygraph evidence at issue was not
admissible. Instead, the State asserts that “neither Janie Mussett nor Mitchell Dickey were the
sole witness or even a crucial witness to the murder underlying [Applicant]’s conviction.” State’s
Brief, WR-74,973-01, at 23.
                                                                                          Bryant—12

giving a statement on May 1, 2007. She answered that she did remember giving such a

statement, but she also stated that “a lot of things I said in that statement is (sic) not true,

because I was scared.” The State then went through Janie’s statement asking her if she

had made each allegation contained in the statement.11 She denied making many of the


       11
            After omitting personal identifying information, Janie’s entire written statement reads as
follows:

       Before me the undersigned authority in and for said County and State, on this day,
       Tuesday, May 01, 2007, personally appeared, Janie Mussett, . . . who, after being
       by me duly sworn, deposes and says:

       I lived with Bill Bryant for approximately two years beginning around October of
       1985. Bill was good friends with Kenneth Raulston. Kenneth’s wife was Sarah.

       My sister Stella was married to Johnny Victory. After Bill and I had lived together
       for about a year, Johnny and Stella separated and Kenneth and Sarah separated.
       Johnny started living with Sarah Raulston and Kenneth started living with Stella.
       Kenneth became very jealous because Johnny was . . . living with Sarah. I once
       heard Kenneth say that he did not like it because Johnny was living with Sarah in
       his, Kenneth’s house and spending his, Kenneth’s money. Stella once told me that
       Johnny kidnapped Kenneth, hit Kenneth in the head with a gun several different
       times and sexually assaulted Kenneth in the anus.

       On New Years Eve, 1986 I witnessed Johnny beat Stella up at Marie’s Tavern in
       Valliant, Oklahoma. Johnny stuck his hand up in Stella’s private parts when he
       assaulted her. Johnny also cut Stella’s face with a knife. A couple of weeks later,
       Bill and I met Kenneth and Stella at a motel in DeQueen, Arkansas. We all stayed
       one night at the motel. While we were there, Kenneth and Bill left alone. After
       they returned to the motel, Bill told me that Kenneth wanted Bill to help Kenneth
       kill Johnny Victory. Bill was upset with Kenneth and Bill told me that Kenneth
       was crazy.

       Maybe three or four weeks later, I learned that Johnny Victory and Sarah Raulston
       had been killed. Stella and I were at Don Ed Payne’s office in Hugo, Oklahoma
       and Don Ed told us that Johnny and Sarah had been killed the night before. Don
       Ed is an attorney. This really upset Stella.

       Maybe a month later, Bill and I were at Stella’s house where we were staying
                                                                                      Bryant—13

statements, including the ones inculpating Applicant. And when Janie also denied being

threatened by Applicant, the State elicited further testimony from Janie that Sheriff Reed

told her that it would be better if she proved her story by taking a lie-detector test. The

State then asked Janie if she had proven her story by taking the polygraph test. Janie

responded that “[t]hey didn’t show [the results] to me.” The only objection raised by the

defense during Janie’s testimony was to the admission of her written statement12 and not

the evidence that Janie took a polygraph test or the possible results of the test. Trial

counsel also failed to ask for a limiting instruction for the written statement initialed by

Janie. On cross-examination, Janie testified that, at the time of the murders, she was

Applicant’s girlfriend and that she lived with him and some other family members. She

further testified that Applicant was at home the night of the murders. At the end of cross-


       because our trailer house had burned. Stella was drinking and crying. Stella told
       me that Kenneth told her me (sic) that Thomas Stringer, Jim Ed Monkhouse,
       Lewis Perkins, Bill and Kenneth had killed Johnny and Sarah. About a week later,
       Bill and I were in our bedroom. Bill said, “Me and Kenneth went to Kenneth and
       Sarah’s house and shot and killed Johnny and Sarah.” Bill also told me that there
       was a third shooter there but he did not tell me who the third person was. After
       [B]ill told me this, Bill told me that if I ever told anyone that he and Kenneth
       killed Johnny and Sarah, he would hurt me. I understood this to mean that he
       would hurt me, my children and my family.

       A short time later, Bill and I moved to Millerton, Oklahoma. I lived in Millerton
       about eight months after that and then moved into Stella’s trailer house. Stella had
       moved out and was living with a guy named Steve. I never lived with or
       associated with Bill Bryant after that. (End of statement).
       12
          The defense objected on the grounds that the statement was hearsay and not the best
evidence. However, the trial court overruled both objections and, except for a redaction, admitted
the exhibit for all purposes, including as evidence of Applicant’s guilt and not just to impeach
Janie’s trial testimony.
                                                                                       Bryant—14

examination, the defense asked Janie to “[t]ell the jury what the truth is.” Janie reiterated

that Applicant did not commit the crime, that he was at home the night of the murders,

that she had no reason to lie, and that the officers “said I took the test and I flunked the

test.” The defense never objected to the State’s introduction of evidence about Janie

taking a polygraph test or the results of that test. Then, the defense directly questioned

Janie about the polygraph test she took.

       Next, the State called to the stand United States Secret Service Agent Mark

VanderVlugt, who administered the polygraph test for Janie. During direct examination,

Agent VanderVlugt never mentioned the polygraph test or its results directly. Rather, he

testified that, initially, Janie did not want to tell the truth,13 but that a couple of hours later

she told investigators that Applicant had confessed to her after she became emotional. On

cross-examination, the defense asked VanderVlugt how he knew “what the truth was,”

but the State objected because “[t]here’s a federal law that prevents [VanderVlugt] from

talking about what was performed on her at the time, the polygraph test.” Thus, the State

raised the issue of Janie taking a polygraph test again, this time in its objection that

VanderVlugt could not specifically testify about the lie-detector test Janie took or the

results of that test. However, once again the defense did not object, ask for an instruction

to disregard, or a mistral.

       Janie’s polygraph test and the results of that test were brought up again by the



       13
            The defense did not object to this comment.
                                                                                    Bryant—15

State when Sheriff Reed was recalled to the stand. This time, however, Janie’s polygraph

test and its results were expressly discussed. The State asked Sheriff Reed whether

investigators had a reason not to believe Janie’s story, and he responded that, when “she

took the polygraph test, it indicated deception.” The Sheriff then explained why Agent

VanderVlugt was involved in the investigation and how he could know whether Janie was

telling the truth to investigators: Agent VanderVlugt “administered the polygraph test.”

       On redirect, the State again elicited testimony about Janie and the polygraph test

she took:

       [STATE]: If it had turned out that she passed the lie detector test and
       [Applicant] was in fact home that night and she was telling the truth, that
       would have been the end of it. Right?

       [SHERIFF REED]: That would have been the end of it.

       [STATE]: And your attention would have turned in some other direction. Is
       that correct?

       [SHERIFF REED]: That’s correct.

       The defense did not object to any of the testimony regarding Janie taking a

polygraph test or failing it, although Sheriff Reed definitively testified that the police

would have stopped investigating Applicant if the polygraph results had not indicated that

Janie lied about Applicant being home the night of the murders. Sheriff Reed’s testimony

that the police would have stopped investigating Applicant if Janie had not indicated

deception seems to directly contradict the State’s argument that Janie was not a crucial

witness.
                                                                                 Bryant—16

                                  H ABEAS PROCEEDINGS

       Trial counsel submitted an affidavit answering each of Applicant’s claims of

ineffective assistance of counsel. In response to Applicant’s polygraph claim, trial

counsel stated:

       [Applicant] raises the issue of my failure to object to references to
       polygraph examinations in the trial. I should have objected to the testimony
       regarding polygraph exams taken by Janie Mussett and Mitchell Dickey,
       however, since the subject was broached by the State, I felt it would be in
       the minds of the jurors.

       Janie Mussett had assured me her testimony would be favorable to
       [Applicant] and it was.

       As to Mitchell Dickey, who had told so many variations on the killings and
       who was involved, I didn’t feel his testimony was going to be credible
       under any circumstances.

       In addressing Applicant’s polygraph claim, it appears that the convicting court

concluded that, despite counsel’s statement that he should have objected, counsel had a

trial strategy, which was to avoid drawing more attention to the evidence by not objecting

when it was raised. Furthermore, the court concluded that not objecting fell within the

wide range of reasonable assistance and should not be considered deficient.

                                         T HE LAW

       The Sixth Amendment to the United States Constitution guarantees an accused the

assistance of counsel to prepare a defense. See U.S. C ONST. amend. VI. The Sixth

Amendment right to counsel has been interpreted as “the right to the effective assistance

of counsel.” Robinson v. State, 16 S.W.3d 808, 812 (Tex. Crim. App. 2000) (citing
                                                                                  Bryant—17

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). In Strickland, the United States

Supreme Court explained that a claimant can prove that he received ineffective assistance

of counsel by showing that his counsel’s representation was deficient and that the

deficient performance caused him prejudice. Ex parte Cockrell, 424 S.W.3d 543, 545

(Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 690–94); see Hernandez v. State,

726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

       A claimant can prove deficient performance by showing that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

687–88. An objective standard of reasonableness is defined by prevailing professional

norms at the time of trial. See id. at 688. However, because of the difficulty of assessing

attorney conduct in hindsight, and because one defensive theory for a crime may work

with one attorney and jury but not another, there is a presumption that the trial attorney’s

performance conformed to prevailing professional norms at the time of trial—i.e., the

challenged action “might be considered sound trial strategy.” Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). In other words, depending on the circumstances and

strategy employed, certain representation by counsel that may fall below an objective

standard of reasonableness in one trial may not in another. See Andrews v. State, 159

S.W.3d 98, 102 (Tex. Crim. App. 2005).

       Furthermore, appellate scrutiny of the performance of counsel is highly deferential,

and trial counsel’s performance is assessed by the totality of the circumstances as they
                                                                                        Bryant—18

existed at the time of trial, not with the benefit of hindsight or by relying on only isolated

circumstances at trial. See Ex parte Flores, 387 S.W.3d 626, 633–34 (Tex. Crim. App.

2012). A claimant must generally prove deficiency using affirmative evidence in the trial

record sufficient to overcome the presumption that the challenged action was sound trial

strategy. See Strickland, 466 U.S. at 689; Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). However, “when no reasonable trial strategy could justify the trial

counsel’s conduct, counsel’s performance falls below an objective standard of

reasonableness as a matter of law, regardless of whether the record adequately reflect[s]

the trial counsel’s subjective reasons for act[ing] as [he] did.” Andrews, 159 S.W.3d at

102.

       To prove prejudice, a claimant must establish a “reasonable probability” that the

result of the proceeding would have been different if counsel had not been deficient.14

Strickland, 466 U.S. at 694. A reasonable probability is one that is sufficient to undermine

confidence in the outcome of the trial. Id. Whether there is a reasonable probability that

confidence in the outcome of the trial is undermined can turn on evidence adduced at trial

because “a verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support.” Id. at 696.

                                           D ISCUSSION

       14
         The State’s brief incorrectly states the applicable inquiry in a Strickland prejudice
analysis as whether Applicant could establish “that the result would have been different in the
present case . . . .” However, the proper inquiry is whether there is a reasonable probability that
the outcome could have been different. See Strickland, 466 U.S. at 694.
                                                                                   Bryant—19


A. It is not deficient as a matter of law to allow the introduction of polygraph evidence.

       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.

See Leonard, 385 S.W.3d at 577–81, 583 (chronicling the history of the use of polygraph

tests in Texas and holding that polygraph evidence amounts to “scientifically unreliable

facts or data”). However, we need not hold, as the State argues, that if Applicant’s

defense attorney’s failures to object were deficient, the conduct of all similar attorneys

failing to object would also fall below an objective standard of reasonableness. Instead,

we hold that, although the introduction of polygraph evidence almost always falls below

an objective standard of reasonableness because most attorneys will have no reasonable

strategy in allowing the introduction of such evidence, we cannot categorically exclude

the possibility that a trial attorney, under certain circumstances, could use the admission

of polygraph evidence to his client’s favor. We do find, however, for the reasons

explained below, that Applicant’s trial counsel was deficient in this case.

B. Defense counsel was deficient.

       Defense counsel stated that he should have objected to the polygraph evidence.

However, he went on to state that, “since the subject was broached by the State, I felt it

would be in the minds of the jurors” and that Janie “had assured me her testimony would

be favorable to [Applicant] and it was.” The convicting court took a slightly different
                                                                                    Bryant—20

view of trial counsel’s representation and concluded that trial counsel did have a strategy

in not objecting to the assortment of polygraph evidence: “[C]ounsel made the

determination not to draw more attention to the evidence by lodging an objection.”

       We first note that any assurances that Janie may have given to trial counsel that her

testimony would be favorable are irrelevant because trial counsel is not accused of having

engaged in deficient conduct by calling Janie to the stand. And to the extent that trial

counsel and the convicting court assessed Janie’s testimony as favorable to Applicant, we

address that question in the prejudice inquiry explained below.

       The habeas judge found that trial counsel’s trial strategy not to object was

reasonable because he wanted to avoid drawing attention to the polygraph evidence. Such

a strategy is commonly cited in ineffective-assistance-of-counsel cases and for good

reason. That strategy may be particularly useful when, for example, only a passing, but

possibly objectionable, reference is made and the defense attorney believes that the

reference would largely go unnoticed. However, such a strategy loses its efficacy and

becomes less reasonable when, as in this case, opposing counsel repeatedly draws the

jury’s attention to the objectionable evidence. In addition, it is difficult to conceive of

how defense counsel was effectuating a reasonable strategy not to draw attention to the

polygraph evidence when he also asked questions about Janie’s polygraph test.

       Based on our examination of the entire record, we hold that trial counsel’s

performance was deficient. We now turn to whether Applicant was prejudiced.
                                                                                        Bryant—21

B. Applicant was prejudiced in light of trial counsel’s deficient performance.

       On these specific facts, the record supports the conclusion that Applicant has

shown that he was prejudiced by his trial counsel’s deficient conduct. This is especially

true because the other evidence of guilt adduced at Applicant’s trial was weak. See

Strickland, 466 U.S. at 696. Consequently, trial counsel’s failure to object to the

admission of the existence and results of a polygraph test taken by Janie prejudiced

Applicant because, without that testimony, there is a reasonable probability that the

outcome of the trial would have been different. Moreover, if Applicant’s trial counsel had

asked for a mistrial based on the inadmissible polygraph evidence, the trial court should

have granted it. See Nichols, 378 S.W.2d at 337–38 (stating that revealing the fact that a

polygraph test was taken is “highly prejudicial” and “no instruction from the court [can]

remove it” and that “the learned trial judge fell into error in not granting appellant’s

motion for a mistrial”).

       To prove its case, the State relied primarily on the testimony of witnesses changing

stories from earlier statements, changes in testimony at trial, and the existence and results

of polygraph tests.15 With respect to polygraph evidence, the State heavily relied upon


       15
         While no other direct or circumstantial evidence of Applicant’s complicity in the
murders existed, the State did call the co-defendant’s mother to the stand to testify that she feared
Applicant because, in 1989, he came to their home in New Mexico and threatened them with
harm if Mitchell “opened his mouth.” However, Denna Dickey also testified that she never called
the police regarding the incident, she did not know who murdered the victims, and she denied
concocting a story to get her son a “sweet deal.”
        We do note, however, that we are troubled by the State’s apparent strategy to convict
Applicant by trying Kenneth by proxy. For example, in opening arguments, and although it is not
                                                                                      Bryant—22

copious amounts of testimony about the existence of polygraph tests and their results 16 to

rebut the two defensive theories that Applicant had an alibi, and that this case was too old

with too little evidence to convict him. The polygraph tests and results thereof of both

witnesses—Mitchell and Janie—were discussed throughout both the State’s case-in-chief

and during its closing arguments. At trial, the prosecution noted that Mitchell, Applicant’s

codefendant, had indicated deception during a polygraph test when he stated that he knew

nothing about the crime but, once confronted with his results, he “broke down” and

“asked the police to pull up a chair” so that he could tell them the truth. Although the

defense elicited testimony that Mitchell had passed two earlier polygraph tests in 1987

during which he denied knowing anything about the murders, the State sought to establish

Mitchell’s credibility by reconciling the different test results. The State proposed that,


evidence, the State offered the jury at least six motives for Kenneth to have murdered Johnny. In
addition, the State called witnesses to testify whose only knowledge about the murders indirectly
implicated Kenneth and not Applicant. For example, the State called Evelyn McColloch, who
lived next to the Raulston house at the time of the murders, apparently to place Kenneth at the
scene, because she testified only that the Raulston dogs were unruly and would bark incessantly
unless Kenneth was there because he could control them. She never testified about Applicant.
The State also called Jerry Conway, of the Texas Highway Patrol at the time of the murders,
apparently solely to testify that Kenneth told him that if Johnny came “over the river,” he would
kill him. Conway testified that he had never met nor heard of Applicant. The State also elicited
evidence that Johnny had kidnaped Kenneth, pistol-whipped him, sodomized him, stolen items
from him (both legal property and contraband), and, according to the State, embarrassed him by
making him “get out of a vehicle and play with his penis in front of some folks.” Tactics such as
these unnecessarily confuse the issues that the jury must resolve.
       16
          The court of appeals addressed the pervasiveness of the polygraph evidence in this trial
in a footnote: “[T]rial prosecutors—especially elected district attorneys—should always consider
that their statutory mandate is ‘to see that justice is done.’ We question whether repeatedly
referencing the forbidden subject of polygraphs and lie-detector examinations (as well as the
results of such testing) advances that noble obligation.” Bryant, 282 S.W.3d at 172 n.11.
                                                                                    Bryant—23

despite three tests, two of which were administered in connection with the original

investigation and resulted in evidence favorable to Applicant and one of which was

administered only after the investigation was reopened and resulted in favorable evidence

to the State, the machines operated correctly. The State argued that Mitchell failed the

third polygraph over the same subject matter because he had grown a “conscience,” and

his subsequent confession implicating Applicant must have been true because of his new

“conscience.”17 The prosecution also tried to minimize the fact that, in exchange for

testifying against Applicant in 2008, Mitchell would plead guilty to murder (instead of

capital murder), be sentenced to five years of confinement to run concurrently with other

state sentences he was already serving (instead of a sentence of life confinement), and be

parole eligible potentially much sooner than if he were convicted of capital murder.

       With respect to Janie and polygraph evidence, to combat what was expected to be

favorable testimony for Applicant and to corroborate the testimony of the codefendant

Mitchell, the prosecution elicited testimony that Janie had taken a polygraph test, which

indicated deception when she denied knowing anything about the murders. For example,

at trial the State asked Sheriff Reed, “If it ha[d] turned out that [Janie] passed the lie


       17
            Specifically, the prosecution stated in closing arguments,

       [Y]ou know, you wonder why [Mitchell] passed the--or failed the lie detector test
       this time? Maybe it’s because he has a conscience now, and that’s what those
       things work off of? If you have a conscience and you lie, you start sweating and
       your heart rate goes up and you flunk. And now he has a conscience and back then
       he didn’t, and that’s the reason he failed it this time when he has a conscience;
       and now he’s here trying to let you know, hey, this is what happened.
                                                                                        Bryant—24

detector test and [Applicant] was in fact home and she was telling the truth, that would

have been the end of it. Right?” The sheriff responded, “That’s correct.” In other words,

if the police believed Janie, and not the results of the polygraph test she took, the police

would have eliminated Applicant as a suspect. And the State urged the jury to believe

what the police believed—that lie-detector tests are reliable for identifying truth and

discarding fiction. The State also relied heavily on polygraph evidence with respect to

Janie and the inference that the statement initialed by Janie after she was told she failed

the polygraph test was the “real truth.”18 This emphasis continued during closing

arguments, as it did with respect to Mitchell’s polygraph tests.

       This case was well known in the area because of the gruesome nature of the

murders, the fact that the murders took place in a small town and involved two couples

that had separated and begun seeing each other’s spouses, and the fact that no one had

ever been prosecuted for the murders in the intervening twenty-year period.19 The judge


       18
          The State elicited testimony that Janie was at the police station for about two hours and
that the environment was a relaxed one. However, Janie testified that the officers told her that
they knew she was lying, they already had the foundation, “and they needed the icing for the
cake.” She stated that she felt like she was going to be the “icing on the cake” for the police “no
matter what.”
       19
            The judge addressed this point during voir dire when he stated,

       As you go home to your homes tonight, just tell your spouse or whomever, well, I
       have been seated as a juror. And the first thing they’re going to ask you, oh, what
       is it? What is it about, and all of that. You just tell them, “Well, I simply can not
       discuss it with you.”
               Stop and think about it for a minute. Each of us have respect for our
       spouse. They may have no idea what is being selected up here, you know, for jury
       today. The moment that they find out, it’s amazing, “Oh, I remember what
                                                                                       Bryant—25

even suggested that jurors could write a book about the case because “[c]apital offenses

that have these long gaps, well, they are known on occasion to end up in book form, so

who knows.” And as Sheriff Reed testified, many people were interviewed about the

murders and gave their opinions about what could have happened. Mitchell testified at

trial that “there’s probably been a thousand different stories told, a thousand different

statements given by everybody involved in [the case].” There appears to be some truth to

that statement. Ranger Almond’s original investigation, at best, implicated Kenneth and

Mitchell—both of whom were identified by the children as at the house the night of the

murders. However, Kenneth was killed in an automobile accident, and the State




       happened twenty-one years ago, and I think it was this, this and this, and you need
       to do what” -- Well, you know, that isn’t going to cut it, and you can understand
       that.

Later, the trial judge addressed the issue again when he stated,

       The Court also would point out that this courtroom has been unusually full of
       spectators, parties of interest, you know, that are interested in the outcome of the
       case, as well as just public--the general public who have been attending the course
       of the trial. You know, and as far as even from the Court perspective as far as
       specifically being able to identify an individual seated out in the courtroom, it is
       difficult with the numbers of people that were here.

Finally, before the verdict was read, the trial judge addressed everyone in the courtroom,

       All right, now to those in the courtroom, ladies and gentlemen, there has been a
       great deal of interest following this particular case. I understand that there are
       family members of each side that are present here in the courtroom. This is a
       courtroom. We have to have decorum. We simply can not be tolerant of outbursts
       or inappropriate conduct. I know that this is difficult in this particular case with
       the lengthy history that we have, a twenty-one year history from the date of the
       offense. I understand that it impacts a lot of lives, even twenty-one years later.
                                                                                      Bryant—26

eventually dismissed the capital-murder indictment against Mitchell due to insufficient

evidence and in light of the deal he struck with the State. It appears that it was not until

Mitchell, Aaron, and Dalinda changed their stories that it was possible to prosecute

Applicant. However, Mitchell testified against Applicant to receive a minimal sentence

and to be parole eligible as soon as possible, the State was concerned that Aaron would

not testify against Applicant at all, and Dalinda testified in favor of Applicant until she

was recalled as a rebuttal witness and completely changed her testimony.20

       Aside from the voluminous polygraph evidence and the assertion that the witnesses

told the truth after “failing” polygraph tests, the only other evidence that the State could

rely on to prove Applicant’s guilt were the new, changed statements of Aaron and

Dalinda.21 Both of the witnesses’ testimony ultimately contradicted their earlier

statements given in 1987. Dalinda initially testified in accordance with her 1987 story that

she did not see Applicant at the crime scene the night of the murders, but later on rebuttal




       20
        Dalinda subsequently recanted her rebuttal testimony in a recorded interview for
postconviction purposes, but when the convicting court held an evidentiary hearing, she
withdrew her recantation, although she continued to vacillate until she was excused as a witness.
       21
            During closing arguments, the State made this point when it stated,

       Well, we bring you the testimony of someone who was there. Mitchell Dickey was
       there that night, and the Judge says that because he’s an accomplice, we’ve got to
       back up what he says, corroborate it, with things that other people can say. We did
       that for you.

The State went on to cite Aaron, Dalinda, and Janie’s testimony as the corroborating evidence.
                                                                                      Bryant—27

she testified that the Tom to whom the children had referred in 1987 was Applicant.22

This testimony was also contrary to the evidence that in 1987 Jonathan had identified

Tom as Jim Ed Monkhouse. The State’s reliance on Dalinda’s change of heart was made

apparent when it urged the jury to conclude that Dalinda did not tell the truth before the

trial in 2008 because she was not strong enough to tell the truth, but by the time she

testified as a rebuttal witness she finally was “brave enough” to remember that Applicant

committed the murders.23 The State was worried, however, that Aaron would not even

implicate Applicant with his testimony.24 Despite that concern, Aaron deviated from his

statements given in 1987 and testified that he saw Applicant the night of the murders with

Kenneth, and that he did not know a man named Tom. His explanation for his sudden

reversal and his lie about Tom was that “[w]e was taught not to tell. And my daddy also

told us not to tell on anything, and that was a big part of it.” However, Aaron never fully

explained why he waited two decades to tell the truth about who murdered his father; he

said only that he was “tell[ing] on” Applicant because “[h]e killed my daddy, you know.”

The State paraphrased Aaron’s statement during closing arguments, “He has come here,

and why did he say he was here? He’s not here after anything. He says he wants to set


       22
        Dalinda’s change in testimony was so dramatic that it was the subject of a perjury claim,
which this Court denied. See Ex parte Bryant, 2012 WL 4048839.
       23
        It appears that the only difference between Dalinda, Mitchell, and Janie was that
Dalinda was not given a polygraph test.
       24
           During opening statements, the State told the jury, “You’ll hear Aaron say--I’m hoping
he still says--it was [Applicant]. It wasn’t Tom. He will also say Mitchell Dickey [was] there.”
                                                                                     Bryant—28

things straight because that guy killed his daddy, and he wants to make things right after

twenty-one years.” The State, like Aaron, did not have an explanation for why Aaron

waited almost twenty-one years “to set things straight.”

       Unlike Mitchell, Janie took a single polygraph test and was told, but not shown,

that she indicated deception. That evidence would have left the jury with the impression

that statements given by Janie in 1987 and during the polygraph test were untrue, but

anything in the statement (which implicated Applicant) that she initialed after taking the

test and being told that she failed must be true, but the defense failed to object. Moreover,

the polygraph evidence was crucial because the existence and results of Janie’s polygraph

test greatly undercut Applicant’s rebuttal to the written statement. Instead of the jury

fulfilling its role by resolving the factual disputes in the case, the State’s introduction of

the polygraph evidence encouraged the jury to abdicate its role as factfinder and, instead,

to rely on the polygraph machine to ascertain who was telling the truth. See Nichols, 378

S.W.2d at 337–38 (“We think it fair to observe that the only reason that anyone would

possibly take a lie detector test would be to determine whether or not they were telling the

truth.”). In addition, aside from that evidence, the State relied almost exclusively on the

changed stories of two witnesses to the crime and whose new testimony was contradicted

by not only their own prior statements given in the case but also contradicted other

statements given in 1987. However, those witnesses were not subjected to polygraph

tests, unlike Mitchell and Janie.
                                                                                  Bryant—29

       We hold that, based on the facts of this case, Applicant’s defense counsel was

deficient, and that there is a reasonable probability that, but for the testimony adduced at

trial regarding Janie’s polygraph examination, the results of such testing, and the changed

stories of two witnesses, the jury could have reached a different result. Under Strickland,

that is sufficient to undermine confidence in the outcome of the trial, and Applicant is

entitled to a new trial.

                                       C ONCLUSION

       Applicant has shown by a preponderance of the evidence that his trial counsel was

deficient and that the deficiency prejudiced him. As a result, Applicant is entitled to

relief. The judgment in cause number CR01125 in the 102nd District Court of Red River

County is set aside, and Applicant is remanded to the custody of the Sheriff of Red River

County.

                                                  Hervey, J.

Delivered: November 19, 2014

Publish
