                                                                                  AP-77,046
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 2/17/2015 7:34:26 PM
February 18, 2015                                              Accepted 2/18/2015 9:30:43 AM
                                                                                 ABEL ACOSTA
                              No. AP-77,046                                              CLERK
                         _______________________

            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                             AT AUSTIN
                       _______________________

                            HENRY W. SKINNER,
                                Appellant

                                      v.

                          THE STATE OF TEXAS,
                                    Appellee
                          _______________________
                      On Appeal from the Finding Under
                      Tex. Code Crim. Proc. art 64.04 by
                    the 31st District Court of Gray County
                          _______________________

                       APPELLANT’S REPLY BRIEF
                         _______________________

 ROBERT C. OWEN                                DOUGLAS G. ROBINSON
 Texas Bar No. 15371950                        1440 New York Avenue, N.W.
 Bluhm Legal Clinic                            Washington, D.C. 20005
 Northwestern University Law School            (202) 371-7800 office
 375 East Chicago Avenue                       (202) 393-5760 facsimile
 Chicago, IL 60611-3069                        douglas.robinson@skadden.com
 (312) 503-0135 voice
 (312) 503- 8977 facsimile
 robert.owen@law.northwestern.edu

                                Counsel for Appellant

 Dated: February 17, 2015
                                        TABLE OF CONTENTS


REPLY TO APPELLEE’S STATEMENT OF THE FACTS ................................... 1

SUMMARY OF ARGUMENT IN REPLY .............................................................. 5

ARGUMENT .............................................................................................................6
I.       This Court Should Reject the State’s Articulation of the Applicable
         Legal Standards. ..............................................................................................6

         A.       The convicting court’s articulation of the governing legal
                  standard was not a “mere[ ] ... affirmative restatement” of art.
                  64.04, but a wholesale inversion of the statute’s language, and
                  had the effect of requiring Mr. Skinner to show clear and
                  convincing evidence of actual innocence. ............................................. 6

         B.       The Court should decline the State’s invitation to superimpose a
                  “preponderance of the evidence” requirement atop the
                  “reasonable probability” standard. ........................................................ 9

         C.       In arguing that the results of DNA testing on the blanket from
                  Randy Busby’s bed – which showed no trace of Mr. Skinner’s
                  DNA – are not exculpatory, the State invokes an erroneous
                  recounting of the legislative history of art. 64.04. ..............................14

         D.       Keeping faith with Texas’s traditional emphasis on the
                  importance of juries requires a standard of review that focuses
                  on how a reasonable juror could evaluate the evidence. .....................18

II.      The State’s Efforts to Downplay the DNA Test Results Favorable to
         Mr. Skinner Are Unavailing. .........................................................................21
         A.       The finding by the State’s expert that three hairs found in Twila
                  Busby’s hands were “visually dissimilar” from those of any of
                  the victims cannot be casually brushed aside......................................21

         B.       The State fails in its effort to demonstrate that the absence of
                  any finding of Mr. Skinner’s DNA mixed with that of any of
                  the victims anywhere but on the knife is not exonerating................... 23


                                                           i
         C.       The State fails to rebut Mr. Skinner’s showing that the results
                  of the testing on the dishtowel would have given him another
                  basis for a finding of reasonable doubt. ..............................................24

III.    The State Exaggerates the Impact of the Test Results Showing Mr.
        Skinner’s DNA Profile on the Knife and at Various Locations in the
        House. ............................................................................................................25

CONCLUSION ........................................................................................................27

CERTIFICATE OF COMPLIANCE .......................................................................29

CERTIFICATE OF SERVICE ................................................................................30




                                                            ii
                                  TABLE OF AUTHORITIES

                                         FEDERAL CASES

Carella v. California, 491 U.S. 263 (1989) .............................................................20

Evans v. United States, 504 U.S. 255 (1992) .............................................................6

Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) ......................................................7

Lytle v. Household Manufacturing., Inc., 494 U.S. 545 (1990) ..............................20

Nix v. Whiteside, 475 U.S. 157 (1986).......................................................................7

Purdy v. Zeldes, 166 F. Supp. 2d 935 (D. Vt. 2001) .................................................7

Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 3, 5, 6, 19

United States v. Dominguez Benitez, 542 U.S. 74 (2004) .........................................7

Williams v. Taylor, 529 U.S. 362 (2000) ...................................................................7

Youngblood v. West Virginia, 547 U.S. 867 (2006) ..................................................7

                                           STATE CASES

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) ......................................12

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................20

DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) ..........................................12

Hagos v. People, 288 P.3d 116 (Colo. 2012) ............................................................7

In re Towne, 86 A.3d 429 (Vt. 2013)................................................................ 12, 14

Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002) ................................ 15, 16

Liverman v. State, 448 S.W.3d 155 (Tex. App. – Ft. Worth, 2014) ........................12
                                                     iii
Skinner v. Quarterman, No. 2:99-CV-45, 2007 WL 582808 (N.D. Tex. Feb. 22,

   2007) (unpublished) ...............................................................................................3

Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) .....................................11

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)......................................20

                                             STATE STATUTES

Vt. Stat. Ann. tit. 13 .................................................................................................13

Tex. Code Crim. Proc. art. 64.03 .......................................................... 10, 12, 15, 16

Tex. Code Crim. Proc. ch. 64...................................................................................17

Tex. Code Crim. Proc. art. 64.04 ..................................................................... passim

                                 STATE LEGISLATIVE HISTORY

House Debate on SB 3, 77th Leg., R.S. (March 21, 2001)......................................16




                                                           iv
      Appellant Henry W. Skinner respectfully replies to the Brief of Appellee

filed January 26, 2015 (“Appellee’s Br.”).


          REPLY TO APPELLEE’S STATEMENT OF THE FACTS
      The State asks the Court to take judicial notice that in 2004, Mr. Skinner was

allowed in federal court discovery to obtain both the plastic bag that police

collected from the living room where Twila Busby was killed and a sample of

Robert Donnell’s fingerprints, and that Mr. Skinner’s counsel “ha[ve] never

disclosed the results of that [fingerprint] comparison.” Appellee’s Br. 5 n.7. The

fingerprints from the bag did not match Donnell’s.          That certainly does not

exonerate Donnell, as those prints could have been left by any of the many law

enforcement officers and court personnel who subsequently handled the bag.

      If the Court is to take judicial notice of the record of Mr. Skinner’s federal

habeas proceeding, as Respondent urges, it should also take notice of the following

more important facts from that proceeding. First, in federal court Andrea Reed

recanted those parts of her trial testimony that likely had tipped the balance for the

jury in favor of conviction. 1 Most important, she disavowed her descriptions of the

functions Mr. Skinner was able to perform on the night of the crimes (which had



1
 The State cites Ms. Reed’s testimony as important evidence of Mr. Skinner’s guilt. See
Appellee’s Br. 6-7.


                                          1
undermined the defense theory that he was too impaired by alcohol and drugs to

have committed the murders). 2 She acknowledged the following falsehoods:

       •   Ms. Reed testified at trial that she had told Mr. Skinner not to enter her
           house and that he “somehow” got in anyway. (Tr. 26:491) This claim
           was important because it portrayed Mr. Skinner, only minutes after the
           murders, as performing a feat requiring considerable dexterity and
           presence of mind. (EH I:228.3) Ms. Reed admitted in federal court that
           she had fabricated that account out of fear that the police would charge
           her as an accessory if she told the truth. After becoming aware that Mr.
           Skinner was “banging on the side of the trailer,” Ms. Reed went outside
           and had to help him up the steps. (Id.) Even then, he stumbled, fell over
           backwards and had to lean on Ms. Reed’s arm to get into the house. (Id.
           II:270-71.)

       •   At trial, Ms. Reed claimed that, after Mr. Skinner was inside, he took off
           his shirt and laid it over the back of a chair. The truth was that he could
           not remove his shirt without her assistance, and it was she, not he, who
           draped it over the chair. (Id. I:229.)

       •   At trial, Ms. Reed testified that Mr. Skinner heated sewing needles and
           tried to bend them. In fact, it was Ms. Reed who did so, as he was too
           impaired to perform such acts. (Id. at I:230.)

       •   At trial, Ms. Reed said that Mr. Skinner went from the dining room to the
           bathroom on his own. In truth, he could not walk down the hall and
           return to the living area without her assistance. (Id. I:230-31, II:272.)

       •   At trial, Ms. Reed testified that Mr. Skinner threatened to kill her if she
           called the police. In fact, while he told her not to call anybody, “he never

2 Even so, at trial Ms. Reed acknowledged that Mr. Skinner was “f***** up” from both alcohol
and drugs (Tr. 26:515), talked about things that she knew had never happened (Tr. 26:522), at
times seemed unaware of where he was or who he was talking to, sometimes calling Ms. Reed
“Twila” (Tr. 26:522, 26:526), and told a number of inconsistent and largely incoherent stories
about what had happened that evening (Tr. 26:494, 26:500), including that he had been stabbed
several times and “gut shot” (Tr. 26:491), neither of which was true.
3We cite the transcript of the federal evidentiary hearing as “EH,” followed by the volume and
page number. Petitioner’s Exhibits from that hearing are cited as “EH PX,” with number.


                                              2
           said that he would kill me” (id. I:231), and she never felt threatened by
           him. (Id. II:266.) Nor did she believe he was a threat to Twila. (Id.
           II:278.)

       •   At trial, Ms. Reed testified that of all the fanciful stories Mr. Skinner told
           her on the night of the murders, he swore her to secrecy respecting only
           one: that he believed he might have kicked Twila Busby to death. (Tr.
           26:528.) That, too, was untrue. He told “a whole lot of stories” and
           swore her to secrecy with “[e]very story.” (EH II:277, I:231.) 4

       Second, compelling evidence of Donnell’s guilt – in addition to that

presented at trial – was introduced in the federal proceeding. Debra Ellis, who

lived next door to Donnell and his wife and had known them for about three years

at the time of the murders, offered particularly significant testimony. (EH I:34.) In

addition to corroborating several witnesses’ testimony that Donnell had a temper

and a history of serious violence, especially toward women, Ms. Ellis recounted

the time, only a few days after the murders, when she observed Donnell giving his

pickup truck a fanatically thorough cleaning, even though it was cold outside. (Id.

I:23.) Donnell stripped down the interior, removed the carpet, and scrubbed the


4 Ms. Reed’s testimony in habeas was offered to support a claim that the prosecution had coerced
her into testifying falsely at trial. The State’s witnesses at the federal hearing addressed the
coercion issue rather than whether her trial testimony was true. In that light, the federal
magistrate’s choice not to credit Ms. Reed’s habeas testimony is best understood as finding that
her trial testimony was not coerced, not that it was true. See Skinner v. Quarterman, No. 2:99-
CV-45, 2007 WL 582808, at *16 (N.D. Tex. Feb. 22, 2007) (unpublished). That focus also
explains why the federal court failed to address the fact that the scientific evidence about Mr.
Skinner’s condition corroborated Ms. Reed’s recantation, and that she lacked any motive to
recant other than clearing her conscience – standing fast even after being threatened with a
perjury charge. See Petitioner’s Motion in Limine at 2-4 & Exs. 1-3, Skinner v. Quarterman, No.
2:99-CV-0045 (N.D. Tex.), ECF No. 128 (grand jury transcript showing that prosecutor
aggressively threatened Ms. Reed with indictment if she did not withdraw her recantation).


                                               3
metal floorboards with an astringent cleaner. (Id.) Donnell’s intense activity was

particularly noteworthy because, in three years as his neighbor, Ms. Ellis had never

before seen him clean his truck, which was a “clunker” to begin with. (Id. I:23-

24.) Donnell spent “hours” at the task; he took everything out, including the seats.

After removing everything and scrubbing the entire interior of the cab, Donnell

hosed it out thoroughly. He replaced the seats but not the carpet. (Id. I:23-24.)

Within the next two weeks Donnell also repainted his pickup by hand. (Id. I:26,

I:42.)

         Ms. Ellis also testified at the federal hearing that she’d often seen Donnell

wearing a windbreaker jacket “just like” the one police collected as evidence after

finding it next to Twila Busby’s body. (Id. I:30-31.) Ms. Ellis has since been

shown photographs of the jacket recovered from the crime scene and was prepared

to testify at the art. 64.04 hearing that it is the one she saw Donnell wear.

However, the State objected to Ms. Ellis’s testimony on the ground that because

the jacket was not DNA tested, it was irrelevant to any issue at the hearing. See

Hearing Tr. 2:190-95. The convicting court sustained the objection, despite the

fact that the jacket was one of the items Mr. Skinner requested to have DNA tested.

(Record 7-8). The jacket was not tested because, sometime between Mr. Skinner’s

trial (when it was marked as an exhibit, see Tr. 26:715) and the testing at issue

here, the State, without explanation, “lost” it. See DX-6. The jacket is potentially

                                           4
the most significant item of evidence in the entire case in terms of what DNA

testing might yield, 5 and yet is the only item the State somehow failed to

safeguard.


                     SUMMARY OF ARGUMENT IN REPLY
       The legal standard applied by the convicting court was not, as the State

argues, a mere “affirmative restatement” of the standard set forth in art. 64.04, but

rather a complete perversion of it. Nor is the “preponderance of the evidence”

standard argued for by the State permissible under art. 64.04, which by its plain

terms adopts the well-understood “reasonable probability” standard of Strickland v.

Washington, 466 U.S. 668 (1984).

       The State’s efforts to downplay the DNA test results favorable to Mr.

Skinner are unavailing, in large measure because it views them through the lens of

an improper legal standard.          At the same time, the State exaggerates the

significance of test results showing Mr. Skinner’s DNA on the knife and in the

boys’ bedroom, results entirely consistent with his having had a profusely bleeding

cut on his hand and the scientific evidence of his highly intoxicated condition.




5
  The jacket was found lying next to Twila Busby’s body, see SX-22, and photos of it, DX-1-5,
show blood spatter and human hairs, as well as sweat stains around the collar and cuffs that
could identify its owner.


                                             5
                                      ARGUMENT

I.     This Court Should Reject the State’s Articulation of the Applicable
       Legal Standards.
       A.     The convicting court’s articulation of the governing legal
              standard was not a “mere[ ] ... affirmative restatement” of art.
              64.04, but a wholesale inversion of the statute’s language, and had
              the effect of requiring Mr. Skinner to show clear and convincing
              evidence of actual innocence.
       Art. 64.04 requires the convicting court to determine whether it is

“reasonably probable” that a defendant “would not have been convicted” had DNA

test results been available when his case was tried. Tex. Code Crim. Proc. art.

64.04 (emphasis added). Here, however, the convicting court held against Mr.

Skinner after finding that had the post-conviction DNA test results been available

at trial, “it is reasonably probable that [Mr.] Skinner would nevertheless have been

convicted.”     See Appellant’s Brief at 18-19 (citing Record 186 (emphases

supplied)). As Mr. Skinner’s opening brief explained in detail, the legal standard

of “reasonable probability” that the Legislature chose for art. 64.04 has a settled

meaning.6 It describes a degree of doubt that “undermines confidence in the

result” of the proceeding under review but does not rise to the level of a

preponderance of the evidence.          See, e.g., Strickland, 466 U.S. at 693-94 (a

6
  The Legislature’s choice of a term that has a fixed meaning understood by courts around the
Nation is significant. “[A]s Justice Frankfurter advised, ‘if a word is obviously transplanted
from another legal source, whether the common law or other legislation, it brings the old soil
with it.’” Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting F. Frankfurter, Some
Reflections on the Reading of Statutes, 47 COLUM L. REV. 527, 537 (1947)).


                                              6
reasonable probability is “somewhat lower” than a preponderance of the

evidence). 7

       So this Court’s review must begin with the recognition that a “reasonable

probability” is less than a preponderance of the evidence. On its own terms, then,

the convicting court’s finding means that it ruled against Mr. Skinner because it

concluded that even if jurors had heard the DNA test results, there was some

likelihood – and necessarily a likelihood less than “more likely than not” – that

they nevertheless would have convicted Mr. Skinner. It follows ineluctably from

the plain language of the convicting court’s order that Mr. Skinner, to prevail,

would have been required to show that there was no reasonable probability of

conviction if the jury had heard the DNA test results. That is a far heavier burden

7
  The cases echoing this proposition are legion. E.g., Williams v. Taylor, 529 U.S. 362, 404–06
(2000) (O’Connor, J., for the Court) (state court improperly applied “preponderance of evidence”
standard to defendant’s claim of ineffective assistance of counsel); United States v. Dominguez
Benitez, 542 U.S. 74, 83 n.9 (2004) (citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)) (“The
reasonable-probability standard is not the same as, and should not be confused with, a
requirement that a defendant prove by a preponderance of the evidence that but for error things
would have been different”); Nix v. Whiteside, 475 U.S. 157, 175 (1986) (to show reasonable
probability of a different verdict, defendant “need not establish that [counsel’s errors] more
likely than not altered the outcome”); Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (in
the context of a claim under Brady v. Maryland, 373 U.S. 83 (1963), proof of a reasonable
probability of a different outcome “does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted [in] acquittal”) (citation omitted);
Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (a reasonable probability of a different
result “lies between prejudice that ‘had some conceivable effect’ and prejudice that ‘more likely
than not altered the outcome in the case’”); Purdy v. Zeldes, 166 F. Supp. 2d 935, 941 (D. Vt.
2001) (“the ‘reasonable probability’ standard is lower than the preponderance standard”); Hagos
v. People, 288 P.3d 116, 120 (Colo. 2012) (“The word ‘probability’ [in “reasonable probability”]
does not require a defendant to show that the deficient performance more likely than not altered
the outcome of the case.”).


                                               7
than the one the statute imposes – that the defendant need show only a reasonable

probability that, if presented with the DNA testing results, at least one juror would

have harbored a reasonable doubt about his guilt.

      The State contends that the convicting court’s misstatement is innocuous and

in any event harmless. See Appellee’s Br. 27. But that argument assumes that the

art. 64.04 standard and the one the convicting court articulated are merely two

ways of saying the same thing. That is the only way to make sense of the State’s

insistence that the convicting court’s version is a “mere[ ] ... affirmative

restatement” of the statutory language.      See Appellee’s Br. 27.    But the two

standards are not the same, and the difference between them is not semantic. The

standard the Legislature wrote into art. 64.04 – that the court must assess the

likelihood that the defendant “would not have been convicted” – is the only one

that gives meaning to the presumption of innocence and attends to the fundamental

principle that the State cannot obtain a conviction unless it proves guilt beyond a

reasonable doubt. The statutory standard aims to honor those basic rights by

requiring the convicting court to focus on whether, in light of the new DNA test

results, a juror might have been left with reasonable doubt and thus the defendant

“would not have been convicted.”

      The convicting court went far beyond that standard. Indeed, it went far

beyond the preponderance-of-evidence standard.        By its terms, the convicting

                                         8
court’s standard required Mr. Skinner not just to show a reasonable probability that

he would not have been convicted, but to rule out any possibility that he would

have been convicted had the jury heard the post-conviction DNA testing results.

That is the same thing as requiring Mr. Skinner to prove his innocence by clear and

convincing evidence – contrary to the statutory text and the Legislature’s obvious

aim in enacting it. 8

       B.     The Court should decline the State’s invitation to superimpose a
              “preponderance of the evidence” requirement atop the
              “reasonable probability” standard.
       Mr. Skinner’s opening brief inadvertently, but admittedly, contained

conflicting statements concerning the applicable standard of review under art.

64.04. See Appellant’s Br. 15 (citing Smith v. State, 165 S.W.3d 361, 365 (Tex.

Crim. App. 2005), for the proposition that this Court must “examine[ ] the entire

record to determine whether the appellant established, by a preponderance of the

evidence, a reasonable probability that he would not have been convicted if the

post-conviction DNA results had been available at trial”); but see id. at 16-18

(arguing that the “reasonable probability” standard in art. 64.04 stands alone, such

that “the reviewing court [must] make a finding favorable to the defendant even if

8
  The State’s further defense of the convicting court’s order – that what matters is “whether DNA
results affirmatively cast doubt upon the validity of [a defendant’s conviction],” Appellee’s Br.
28, 39 – comes closer to the actual language of art. 64.04 (which does not, however, contain any
variation of the word “affirmative”), but is a far cry from the standard actually articulated and
applied by the convicting court.


                                               9
his showing of that degree of doubt falls below a preponderance of the evidence, as

long as his showing undermines confidence in the verdict”).

      Mr. Skinner’s apparent endorsement of Smith’s “preponderance of the

evidence” language, which of course refers to the standard contained in art. 64.03,

rather than the one reflected in art. 64.04, was unintended. Further review and

research, see infra, only reinforces the position Mr. Skinner took in the remainder

of his opening brief: that the Legislature in art. 64.04 articulated only one unitary

standard, “reasonable probability,” and that it would be inappropriate to

superimpose on that standard a requirement that such a reasonable probability be

shown by a preponderance of the evidence.

      According to the State, this is an issue of first impression. Appellee’s Br. 2

(requesting oral argument, in part because this case “involves ... issues of first

impression regarding the standard of review”); id. 25-26 (citing intermediate Texas

appellate court opinions that have employed simultaneously the preponderance and

reasonable probability standards, and “urg[ing]” this Court “to expressly

incorporate the preponderance-of-the-evidence standard into its review”). This

Court has stated in cases arising under art. 64.03 of the statute that both standards

should apply in tandem with respect to the initial question of whether DNA testing

should be ordered at all (as opposed to the finding to be made after test results are

available). Indeed, it did so in an earlier appeal in this case. See Skinner v. State,

                                         10
122 S.W.3d 808, 813 (Tex. Crim. App. 2003) (“Article 64.03(a)(2)(A) requires a

petitioner to demonstrate, by a preponderance of the evidence, that a reasonable

probability exists that he or she would not have been ... convicted if exculpatory

results were obtained through DNA testing”). But our research has not identified

any decision in which this Court appears to have expressly considered and decided

the matter with respect to art. 64.04, and for that reason we concur with the State

that the question is one of first impression.

      The State begins with the unremarkable observation that, in order for a

defendant to show a reasonable probability that he would not have been convicted

had post-conviction DNA test results been available at trial, “his evidence must

necessarily be important.” Appellee’s Br. 25. We agree. But the State bounds

from that premise to the conclusion that it would be “fully consistent” with the

Legislature’s choice to make “reasonable probability” the governing standard in

art. 64.04 for this Court “to require an appellant to show that new DNA results

make[ ] this reasonable probability more likely than not.” Appellee’s Br. 25.

There is no warrant for this Court to join the State in that inferential leap.

      First and foremost, the straightforward language of the statute forecloses the

interpolation the State would have this Court undertake.            In art. 64.04, the

Legislature used only the phrase “reasonable probability” – a term which, as

already mentioned, is well-known in the law. That the Legislature knew the

                                           11
distinction between the two standards is even more evident when the language of

art. 64.04 is compared to that of art. 64.03, where the Legislature was explicit in

requiring a showing “by a preponderance of the evidence” that the movant would

not have been convicted if exculpatory results are produced from further DNA

testing (see art. 64.03(a)(2)) – showing conclusively that when the Legislature

meant “preponderance of the evidence,” it knew how to say it.9 Where a statute is

unambiguous, reading other requirements into its text is forbidden, as such judicial

rewriting would “invade the lawmaking province of the Legislature.” Boykin v.

State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).

       The Supreme Court’s hierarchical distinction between “reasonable

probability” and “preponderance of the evidence” was well articulated recently by

the Vermont Supreme Court in analyzing a very similar statutory scheme. In In re

Towne, 86 A.3d 429 (Vt. 2013), the court was called upon to interpret a provision

of Vermont’s “Innocence Protection Act,” a statutory scheme for post-conviction

DNA testing. Under the Vermont statute, DNA testing is to be granted if the


9
  See, e.g., DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995) (it is a “familiar canon of
[statutory] construction” that “‘when the legislature uses certain language in one part of the
statute and different language in another, the court assumes different meanings were intended’”)
(quoting 2A N. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 46:06 (5th ed. 1992));
Liverman v. State, 448 S.W.3d 155, 158 (Tex. App. – Ft. Worth, 2014) (“A corollary to the
presumption that every statutory word and phrase used has a legislative purpose is that when the
legislature uses certain language in one part of the statute and different language in another, we
presume different meanings were intended”), petition for discretionary review granted,
February 4, 2015.


                                               12
defendant shows that, had the results of the requested DNA testing had been

available to the trier of fact at the time of the original prosecution, “a reasonable

probability exists that [he] would not have been convicted.” See 13 V.S.A. §

5566(a)(1). In discussing this standard, the Vermont court explained why it would

be improper to superimpose a “preponderance of the evidence” standard atop

statutory language requiring only a “reasonable probability”:

      The difference in standards may be subtle, but is nonetheless of
      sufficient importance to warrant the U.S. Supreme Court’s explicit
      clarification that the reasonable probability standard is a less onerous
      one than a preponderance of the evidence standard. See Strickland,
      466 U.S. at 694 (“The result of a proceeding can be rendered
      unreliable, and hence the proceeding itself unfair, even if the errors of
      counsel cannot be shown by a preponderance of the evidence to have
      determined the outcome.”); see also Williams v. Taylor, 529 U.S. 362,
      405–06 (2000) (explaining that a preponderance of the evidence
      standard would be “opposed to our clearly established precedent ...
      that the prisoner need only demonstrate a reasonable probability
      that ... the result of the proceeding would have been different”
      (quotation omitted)).
      Similar to the U.S. Supreme Court, we previously rejected—albeit in
      a nonprecedential manner—this precise accumulation of standards in
      the context of the prejudice prong of an ineffective-assistance-of-
      counsel claim for two reasons: one, because of the difficulty in
      defining what this awkward construction would mean in practice, and,
      two, because of the further difficulty it would engender in ascertaining
      on review whether a trial court applied the correct standard. See In re
      Combs, 2012 WL 2880535, at *3 (Vt. 2012) (unpub. mem.) (“[I]n
      ruling that petitioner here failed to ‘prove by a preponderance of the
      evidence that there was a reasonable probability’ of a different
      outcome, the trial court conflated the preponderance and reasonable-
      probability standards that the [U.S] Supreme Court has carefully
      distinguished, and rendered it impossible to determine which standard
      the court applied.”

                                         13
      The same concerns exist in the case of DNA testing. Therefore, we
      eschew the preponderance standard in this context and adopt the
      Strickland standard ….
Towne, 86 A.3d at 433 (parallel citations and paragraph numbers omitted).

      The Vermont Supreme Court’s reasoning in Towne is persuasive here. As a

legal matter, piling a “preponderance of the evidence” standard atop the statutory

“reasonable probability” standard would judicially rewrite art. 64.04 to make it

harder to satisfy.   And, as a practical matter, endorsing such an “awkward

construction” would introduce needless complication and invite confusion among

trial courts called upon to make such determinations. This Court should firmly

reject the State’s proposal, and should affirmatively disavow any contrary

inference that might be drawn from dicta in earlier decisions.

      C.     In arguing that the results of DNA testing on the blanket from
             Randy Busby’s bed – which showed no trace of Mr. Skinner’s
             DNA – are not exculpatory, the State invokes an erroneous
             recounting of the legislative history of art. 64.04.
      The State asserts that DNA test results “are not exculpatory where, as here,

Appellant appears to offer the evidence (or lack thereof) to rebut a part of the

prosecution’s case.” Appellee’s Br. 39 (emphasis added). This is the State’s entire

response to Mr. Skinner’s claim that the absence of his blood on the blanket

covering Randy Busby’s body would have been viewed by the jury as exculpatory

because it would have rebutted a key element of the prosecution’s theory of how

the murders were committed. See Appellant’s Br. 34-36.

                                         14
      For this remarkably crabbed view of what constitutes exculpatory evidence,

the State relies on Kutzner v. State, 75 S.W.3d 427, 438 n.23 (Tex. Crim. App.

2002) (superseded by statute as stated in Ex parte Gutierrez, 337 S.W.3d 883, 890

n.16 (Tex. Crim. App. 2011)), in which this Court stated that “[d]uring debate over

the DNA statute, the Senate rejected a House Floor Substitution to article

64.03(a)(2)(A) that would have read ‘had exculpatory results been obtained

through DNA testing before or at trial, the convicted person could have used those

doubts to raise a reasonable doubt as to the person’s guilt or to rebut a part of the

prosecution’s case.’”     Id. (citing House Debate on SB 3, 77th Leg., R.S.,

(www.house.state.tx.us, House Archived Chamber Broadcasts at 1:08:00-2:37:00,

March 21, 2001), at 2:14:00)). From this premise, the State argues that DNA test

results that conclusively rebut only a part – even a key part – of the State’s trial

theory about how the crimes were committed “present[ ] no basis for th[is] Court

to reject the trial court’s finding under article 64.04.” Appellee’s Br. 39.

      Regrettably, Kutzner erred in its accounting of what happened in the cited

House debate, and the State multiplies the error by relying on that mistaken

account here. Kutzner cites the House debate for the proposition that the House

“declined to pass” a proposed amendment to art. 64.03(a)(2)(A) by Rep. Dutton

that would have added language to the effect that DNA results would be

exculpatory if they could have been used, inter alia, “to rebut a part of the

                                          15
prosecution’s case.”      Kutzner, 75 S.W.3d at 438 n.23. The State turns that into

“the Senate rejected a House Floor Substitution to article 64.03(a)(2)(A)” that

would have added the language about rebutting a part of the prosecution’s case.

Appellee’s Br. 39. In fact, the record of the cited House debate actually shows that

after discussion of the proposed amendment, Rep. Dutton withdrew it, and the

committee chair stated that Rep. Dutton was doing so because, with a previous

change in the relevant section, the statute was “acceptable” to him. House Debate

on SB 3, 77th Leg., R.S. (www.house.state.tx.us, House Archived Chamber

Broadcast at 2:22:50, March 21, 2001). Thus, there was no vote in either the

committee or the full House on Rep. Dutton’s proposed amendment (i.e., the

House did not “declin[e] to pass” it). 10 More important, Rep. Dutton withdrew the

proposal because he was persuaded that it was unnecessary. That, in turn, strongly

suggests that under the original language of the new post-conviction DNA testing

legislation, it was understood that DNA test results could be exculpatory if they

“rebut[ted] a part of the prosecution’s case.” 11




10
   The State somehow transmuted these events into the Senate’s “reject[ing]” Rep. Dutton’s
amendment. See Appellee Br. 39. In any event, the House debate record shows that no
legislative body actually rebuffed the proposed change, which is the inference the State urges.
11
   Moreover, both Kutzner and the Dutton amendment addressed art. 64.03, not art. 64.04 –
which, as discussed, incorporates a different standard. That fact greatly limits their relevance
here.


                                              16
      And that conclusion – that evidence can be exculpatory within the

framework of the post-conviction DNA testing statute even if it “only” rebuts a key

part of the State’s case – is altogether reasonable. Strictly speaking, a DNA test

result on a vaginal swab from a rape victim that does not match the DNA profile of

the accused may only “rebut a part of the prosecution’s case” (where, for example,

the prosecution also presents an eyewitness who claims to be able to identify the

accused as the assailant). Yet no one would say that in light of those competing

circumstances, the DNA exclusion is not exculpatory because it only “rebut[s] a

part of the prosecution’s case.” The State’s argument is just another attempt to put

the old wine of requiring “proof of actual innocence” into a new bottle (this time

labeled “affirmative doubt about the validity of a conviction,” see Appellee’s Br.

39). The Legislature made clear in response to Kutzner that no showing of actual

innocence is required under Chapter 64, and this Court should not accept the

State’s invitation to reintroduce such a requirement under the guise of “affirmative

doubt.”

      The bottom line is this: the State had a theory about how these three murders

could have been committed by one person acting alone, a theory that the killings

were committed in a particular order, as well as a theory about why the jury should

not accept the deep cut on Mr. Skinner’s hand as evidence that he was a surviving




                                        17
victim of the crime rather than its author. 12 The State’s claim that Mr. Skinner

stabbed Randy Busby to death as he lay asleep in the top bunk, and that in doing so

he cut himself on the blade of the murder weapon, was absolutely essential to

fitting together the other facts and circumstances of the crime in a way that could

lead a reasonable juror to conclude that Mr. Skinner was guilty. Thus, the DNA

test results that powerfully rebut that claim – because no DNA from Mr. Skinner

appears where, according to the State’s theory, it should surely be found – are

certainly exculpatory.

       D.      Keeping faith with Texas’s traditional emphasis on the
               importance of juries requires a standard of review that focuses on
               how a reasonable juror could evaluate the evidence.
       Mr. Skinner’s opening brief argued that in making the art. 64.04 finding, a

convicting court should consider how a reasonable lay juror might have viewed the

competing evidence. See Appellant’s Br. 21-23. The convicting court here, in

contrast, repeatedly made its own credibility findings and assigned weight to


12
   Namely, the State theorized that Mr. Skinner first assaulted Twila Busby, then had to kill her
two adult sons to eliminate them as witnesses. The State contended that after strangling and
bludgeoning Twila, Mr. Skinner went to the boys’ bedroom, where he stabbed Elwin Caler first
(when Caler purportedly came out of his lower bunk and grappled with Mr. Skinner), and then
stabbed Randy Busby. See Tr. 30:1556-57, 1607-08. The State’s theory can be squared with the
physical evidence only if Mr. Skinner cut his hand in the course of the third murder (the stabbing
of Randy Busby), because, despite Mr. Skinner’s copiously bleeding hand wound, no blood was
seen on the end of the axe handle wielded by whoever bludgeoned Twila. Thus, the absence of
any DNA from Mr. Skinner on the blanket that covered Randy Busby’s body is a fact that
destabilizes the State’s whole explanation for how one massively intoxicated person could have
murdered all three victims and come away with a severe cut to his hand.


                                               18
various items of evidence. Id. In short, it acted as a direct fact-finder rather than

assessing what a reasonable lay juror might have found.

      The State defends the convicting court’s approach, albeit without much

argument beyond simply asserting that this Court typically defers to a trial court’s

resolution of factual questions that turn on credibility or demeanor. Appellee’s Br.

28-29.

      Our point is a subtler one. Where a statute (like art. 64.04) requires a

reviewing court to assess the probable impact upon a prior proceeding of changes

in the evidence, and the prior proceeding was before a jury, the reviewing court

should make its findings through the lens of how a reasonable juror might view the

new constellation of facts, rather than how the court itself subjectively views them.

See Appellant’s Br. 23 n.11 (discussing how this approach is indicated by

Strickland, 466 U.S. at 700).

      In effect, the State’s argument is that the convicting court’s adoption of one

particular view of the evidentiary picture rules out the possibility that a reasonable

jury would reach different conclusions. That assumption is mistaken. Saying that

a judge’s findings are “supported by the record” is far from saying that no rational

fact-finder could have reached a different conclusion.       Two such fact-finders

viewing the same evidentiary record could draw different conclusions, and neither

finding would be “clearly erroneous” if both interpretations “ha[d] support in

                                         19
inferences . . . drawn from the facts in the record.” Id. The Supreme Court has

“long recognized [that] a jury and a judge can draw different conclusions from the

same evidence.” Lytle v. Household Mfg., Inc., 494 U.S. 545, 555 (1990) (citation

omitted). This is particularly so where the fact-finding body is a criminal trial jury

duty-bound to apply the presumption of innocence and resolve all reasonable

doubts in favor of the defendant at trial.

      The convicting court’s approach is also misguided because it affronts the

importance Texas, the nation’s “most jury-deferential state,” has historically

attached to the jury’s role. See Brooks v. State, 323 S.W.3d 893, 923 (Tex. Crim.

App. 2010) (Cochran, J., concurring). The Framers of the 1876 Texas Constitution

“had great faith in juries” that has been a cornerstone of Texas jurisprudence ever

since. Watson v. State, 204 S.W.3d 404, 429 & n.47 (Tex. Crim. App. 2006)

(Cochran, J., dissenting on other grounds). Texas has many “unusually jury-

deferential laws and policies.” Id. at 429 n.47 (listing examples, and citing George

D. Braden, THE CONSTITUTION        OF THE     STATE   OF   TEXAS: AN ANNOTATED   AND

COMPARATIVE ANALYSIS 53–57 (1977)). Texans agree that the right to trial by

jury “reflect[s] a fundamental decision about the exercise of official power—a

reluctance to entrust plenary powers over life and liberty of the citizens to one

judge or group of judges.” Carella v. California, 491 U.S. 263, 268 (1989) (Scalia,

J., concurring) (alteration in original). Given the emphasis Texas historically has

                                             20
placed on the jury’s role, this Court should make it clear to trial courts making

findings under art. 64.04 that they must avoid the temptation to substitute their own

subjective view of the evidence for that of a reasonable juror.


II.   The State’s Efforts to Downplay the DNA Test Results Favorable to Mr.
      Skinner Are Unavailing.
      A.     The finding by the State’s expert that three hairs found in Twila
             Busby’s hands were “visually dissimilar” from those of any of the
             victims cannot be casually brushed aside.
      Mr. Skinner’s opening brief showed that three hairs found clutched in Ms.

Busby’s hands had the mitochondrial DNA profile of the maternal line of the

Busby family (including the alternative suspect Donnell), but were found by a

Department of Public Safety trace analyst to be “visually dissimilar” to that of any

of the three victims. This evidence would have given the jury a compelling

additional basis to suspect that Donnell was the real killer. Appellant’s Br. 24-29.

      The State’s principal response is that Mr. Skinner “overinflates” the alleged

significance of ‘visually dissimilar’ hairs.” Appellee’s Br. 31. The State points

out that the trace analyst who made the hair comparisons testified at the art. 64.04

hearing that, despite his official finding of visual dissimilarity, he did not

definitively exclude the victims, or for that matter any of their other maternal

relatives, as the contributors of those hairs, and thus the evidence falls short of

affirmative proof that the hairs came from Donnell. Appellee’s Br. 31-34.


                                         21
       The State’s response misses the point.             To be sure, other possible

explanations exist for the presence of “visually different” hairs in Ms. Busby’s

hands with her MtDNA profile, including that they came from Ms. Busby herself,

but the State cannot walk back the fact that their highly trained and qualified

analyst, when asked in the laboratory to do a comparison under magnification of

the three suspect hairs to the 70 known samples taken from the victims, declared

all three to be visually dissimilar. See Appellant’s Br. 27-28 & n.13. Furthermore,

while it is also possible that the hairs belonged to some other maternal relative, the

State ignores Mr. Skinner’s showing that there was ample room for the jury to

reject that explanation as well, given the evidence that Ms. Busby’s mother almost

never visited the home while Mr. Skinner lived there, and the absence of evidence

that any other maternal relative regularly visited. Id. at 28-29.13 As discussed

above, Mr. Skinner does not have to show that the MtDNA results of the three

dissimilar hairs rose to the level of clear and convincing proof of his innocence, as

the State urges this Court to require, but only that it would have formed a basis,

when coupled with the other evidence, for a reasonable juror to question whether

Donnell was the real murderer. That it certainly does.

13
   The State inconsistently argues that the MtDNA results were in fact inculpatory because a
fourth hair found in Ms. Busby’s hand had Mr. Skinner’s MtDNA profile. Appellee’s Br. 32.
However, the record was clear that Mr. Skinner lived in the house for at least the six weeks
preceding the murders, making the presence of his hair much more likely to be innocuous than
can be said for the Busby maternal relatives other than Donnell.

                                            22
       B.     The State fails in its effort to demonstrate that the absence of any
              finding of Mr. Skinner’s DNA mixed with that of any of the
              victims anywhere but on the knife is not exonerating.
       In his opening brief, Mr. Skinner showed that the failure of the post-

conviction round of DNA testing to find his DNA mixed with that of any of the

victims anywhere other than on the knife used to kill Elwin Caler and Randy

Busby was exonerating because, if he were the real killer, he would have likely had

the blood of the two boys mixed with his own on his bleeding right hand.

Appellee’s Br. 30-33.

       The State argues that the absence of Elwin’s or Randy’s blood from the door

knobs leading out the back of the house has no evidentiary significance because,

even if someone else had killed them, by Mr. Skinner’s theory that alternative

killer would also have had to exit the house through the rear door and would have

left their blood on the door knobs. Appellee’s Br. 36. What the State fails to take

into account, however, is that the alternative perpetrator could well have had the

presence of mind, which Mr. Skinner in his highly intoxicated state lacked, to wash

or wipe the victims’ blood from his hands before leaving.14

       The State also argues that Mr. Skinner’s argument ignores the fact that

pretrial DNA testing showed the blood of two victims, Twila Busby and Elwin

14
  The evidence at trial showed that Mr. Skinner was at best in a stuporous condition at the time
of the murders, see, e.g., Tr. 29:1371, while Donnell, though drunk, was obviously much more
functional than that. E.g., Tr. 29:1281.


                                              23
Caler, on his clothes. Appellee Br. 37. But this argument is a non-sequitur. The

presence of their blood on his clothes is fully consistent with his theory at trial that

he was unconscious on the couch when Twila was being beaten and that had

contact with Elwin’s bloody body at some point in the melee. The point the State

does not rebut is that in all of the many places where Mr. Skinner’s blood was

found to have dripped from his bleeding hand, it was not once found to have been

mixed with any of the victims, an improbability if he were the real killer. See

Appellant’s Br. 30-31 (the fatal knife wounds to both Elwin and Randy penetrated

to the full length of the blade and beyond).

      C.     The State fails to rebut Mr. Skinner’s showing that the results of
             the testing on the dishtowel would have given him another basis
             for a finding of reasonable doubt.
      Mr. Skinner’s opening brief also pointed to the absence of Mr. Skinner’s

DNA on a dishtowel on which the blood of Twila Busby was found as a further

basis on which defense counsel could have argued reasonable doubt. Appellee’s

Br. 36-40. The State’s principal response is that these DNA test results cannot be

considered exculpatory under art. 64.04 because they would only have “muddied

the waters.” Id. (quoting Ex Parte Gutierrez, 337 S.W.3d 887, 892 (Tex. Crim.

App. 2011)).

      Gutierrez is inapplicable here because it dealt with denial of an original

motion for DNA testing and thus was governed by arts. 64.01 and 64.03, which, as


                                          24
discussed above, have different threshold standards. Under art. 64.04, the issue is

whether the evidence could form a basis for creating reasonable doubt in the mind

of at least one juror. While perhaps inartful, the term “muddy the waters” is not an

inapt description of the role of a defense attorney in creating reasonable doubt.

Indeed, in any case in which conflicts in the evidence exist, the exonerating

evidence could be said to “muddy the waters.” Under a system in which the

presumption of innocence applies, the appropriate jury response in any case in

which the waters are “muddied” is to acquit.

       The State also argues that it was Mr. Skinner’s burden to show that it was

“more probable than not” that the extraneous alleles found on the dishtowel were

deposited there at the time of the murders. Appellee’s Br. 41-42. Again, the State

misunderstands the applicable standard, as discussed supra.


III.   The State Exaggerates the Impact of the Test Results Showing Mr.
       Skinner’s DNA Profile on the Knife and at Various Locations in the
       House.
       The State contends throughout its brief that the DNA testing results are more

inculpatory than exonerating because they “identified [Mr. Skinner’s] DNA profile

in 20 locations” at the crime scene, including on “at least 8 locations in the boys’

bedroom including on a cassette tape (2 profiles), a tennis shoe (2 profiles), on a

cassette tape, on a dresser, on a wall near a dresser, and on a comforter.”

Appellee’s Br. 39.       There is nothing remarkable, and certainly nothing

                                         25
incriminating, about the finding that a person with a profusely bleeding hand left

blood droplets wherever he went. Indeed, given that the prosecutor argued to the

jury that if Mr. Skinner was, as claimed, in a stuporous, staggering state, then his

fingerprints would have been found in more locations throughout the house, Tr.

30:1554, the DNA evidence could be said to have filled that gap and supported the

defense theory.

      The State particularly emphasizes that many of these locations were in the

sons’ bedroom, where Randy was murdered. The implication, apparently, is that

Mr. Skinner had no reason to be in that room other than to kill the two boys. But

equally plausible explanations are that Mr. Skinner went to check on Elwin and

Randy’s condition after regaining consciousness and finding Twila dead, or that he

merely staggered in there in his stuporous state. In any event, the DNA testing

added nothing significant in this regard because the jury already knew that Mr.

Skinner had gone into the sons’ bedroom after his hand was cut because his bloody

handprint was found on a door jamb in that room. Tr. 27:913. Even this evidence

was more exonerating than inculpatory, as its location near the floor corroborated

the defense theory that he was falling-down drunk as he made his way through the

house. See Tr. 28:1384 (palm print was consistent with Mr. Skinner’s impaired

balance and staggering gait).




                                        26
      Finally, the State points out that Mr. Skinner’s DNA, along with that of the

stabbing victims, was found on samples taken from the knife. This is to be

expected if he was cut by the knife on the night of the murders. See Hearing Tr.

86-90 (Dr. Heinig) (blood of victim often transfers from blade to handle when

knife is dropped or during swabbing process in laboratory).       It is also to be

expected if, as a resident of the house, he used it prior to the murders for normal

household chores. Id. Thus, the presence of Mr. Skinner’s DNA on the knife or at

several locations in the boys’ bedroom does not support the State’s contention that

a jury would necessarily view these results as inculpatory.


                                 CONCLUSION
      Mr. Skinner respectfully renews his request for the relief prayed for in his

opening brief.

                                       Respectfully submitted,


                                       /s Robert C. Owen

                                       _____________________
                                       ROBERT C. OWEN
                                       Texas Bar No. 15371950
                                       Bluhm Legal Clinic
                                       Northwestern University Law School
                                       375 East Chicago Avenue
                                       Chicago, IL 60611-3069
                                       (312) 503-0135 voice
                                       (312) 503-8977 facsimile


                                         27
                           DOUGLAS G. ROBINSON
                           1440 New York Avenue, N.W.
                           Washington, DC 20005-2111
                           (202) 371-7800 voice
                           (202) 393-5760 facsimile

                           Counsel for Appellant

Dated: February 17, 2015




                            28
                        CERTIFICATE OF COMPLIANCE
      I certify that the foregoing brief complies with the typeface requirements of

Tex. R. App. Proc. 9.4(e) because it has been prepared using Microsoft Word 2010

in Times New Roman font using 14-point font for text and 12-point font for

footnotes. This document also complies with the word-count limitations of Tex. R.

App. Proc. 9.4(i)(2)(C), limiting “[a] reply brief in an appellate court” to 7,500

words, because it contains 7,455 words, excluding any parts exempted by Tex. R.

App. Proc. 9.4(i)(1).




                                          /s Robert C. Owen
                                          ________________________
                                          ROBERT C. OWEN
                                          Counsel for Appellant




                                        29
                         CERTIFICATE OF SERVICE
      I hereby certify that on February 17, 2015, I caused a true and correct copy

of the foregoing Reply Brief to be sent electronically to the following counsel, with

hard copies to follow via Federal Express:

       Franklin McDonough
       District Attorney for the
       31st Judicial District of Texas
       P. O. Box 1592
       Pampa, Texas 79066
       Franklin.McDonough@graycch.com

       Edward L. Marshall
       Chief, Criminal Appeals Division
       Katherine D. Hayes
       Assistant Attorney General
       Office of the Attorney General
       P.O. Box 12548 (MC 059)
       Austin, TX 78711-2548
       edward.marshall@texasattorneygeneral.gov
       katherine.hayes@texasattorneygeneral.gov




                                             /s Robert C. Owen
                                             ________________________
                                             ROBERT C. OWEN
                                             Counsel for Appellant




                                         30
