                                                                                                       WR-82,467-01
                                                                                  COURT OF CRIMINAL APPEALS
                                                                                                   AUSTIN, TEXAS
                                                                                  Transmitted 12/8/2015 4:52:11 PM
                                                                                    Accepted 12/9/2015 8:01:17 AM
                      IN THE COURT OF CRIMINAL APPEALS                                              ABEL ACOSTA
                           FOR THE STATE OF TEXAS                                                           CLERK

                                AUSTIN, TEXAS
                                                                                   RECEIVED
                                                                            COURT OF CRIMINAL APPEALS
                                                                                            '    I     __ :_




EXPARTE                                        §                                   12/9/2015
                                                                                   ""'"''':., 1:;\J ·' \
                                                                              ABEL ACOSTA, CLERK               ocrurY
                                               §                                -----           -~--~~-"




                                               §       NO. WR-82,467-01
                                               §
STANLEY ORSON MOZEE                           ·§

                                 CAUSE NO. F99-02631-R
                                WRIT NO. W99-02631-R(A)

EXPARTE                                        §       IN THE DISTRICT COURT
                                               §
                                               §       265ru JUDICIAL DISTRICT
                                               §
STANLEY ORSON MOZEE                            §       DALLAS COUNTY, TEXAS



  APPLICANT STANLEY MOZEE'S OBJECTIONS TO TRIAL COURT'S
              SUPPLEMENTAL FINDINGS OF FACT
               IN RESPONSE TO REMAND ORDER


TO THE HONORABLE JUDGES OF SAID COURT:

        NOW COMES STANLEY ORSON MOZEE, Applicant herein, and

submits these Objections to the Trial Court's Supplemental Findings ofFact In

Response to Remand Order, and would show the following:


                                      INTRODUCTION

        While it is not uncommon for a writ applicant to allege a Brady violation,

the due process claims brought by Mr. Mozee and his co-defendant, Dennis Allen,

Applicant Stanley Mozee's Objectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order- Page 1
are unusual and well-founded.            There is no dispute among any of the nllilierous

attorneys and judges who have reviewed the record - including the former trial

prosecutor himself - that a wealth of Brady/Giglio material regarding at least two

criminal informant witnesses (as well as several eyewitnesses) was not heard by

the juries that convicted either Applicant of capital murder.               Nor is there any

dispute that (1) the Brady material was known to the prosecutor well prior to trial,

and (2) if it was not disclosed, and/or if the informants testified falsely about these

matters, both Applicants are entitled to relief.           In addition, this is a case in which

the State has already agreed, based on the extensive record, that new trials should

be granted to both Applicants, and the district court reached a similar conclusion in

detailed, written findings entered over one year ago.

        This writ comes back to this Court after a remand hearing before a

newly-assigned district judge, the Hon. Teresa Hawthorne (at which it emerged

that Judge Hawthorne has !mown the trial prosecutor, Rick Jackson, for over

twenty-five years).       After the hearing, and without waiting for the reporter's

record, Judge Hawthorne summarily entered findings that Mr. Jackson was

"credible" in his personal belief that he must have turned over the core Brady

material in question to Mr. Mozee, which consisted of two letters written to the

prosecutor by the lead informant in his case, Zane Smith.                However, the trial

prosecutor actually admitted at the hearing that he ( 1) had no recollection of


Applicant Stanley Mo:r.ee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order- Page 2
actually tmning over the letters to Mr. l\11ozee's counsel, (2) fom1d no notes or

other documentation in any way indicating that he did so, and (3) did not disclose

at least one of these two letters, which specifically discussed the benefits that

Smith had been promised by the State in exchange for his testimony.

        The district court's Findings are clearly not supported by the record, because

they made no mention of these and other key concessions by former ADA Jackson.

Were that not enough, there are numerous other reasons why Judge Hawthorne's

view that Mr. Jackson was "credible" in his personal belief (but not his factual

recollection, as he admitted he had none) that he likely complied with Brady is not

supported by the record. These include that the court failed to consider

substantial, unrebutted evidence in the record that the trial prosecutor (1)

repeatedly violated what he claimed were his own practices regarding informant

testimony when it came to this case, (2) admitted that he failed to correct false

informant testimony at the Allen trial, and (3) committed numerous other Brady

violations in the course of prosecuting both defendants, by failing to disclose

exculpatory information that his own file notes confirm was known to him.                     Such

evidence is particularly significant where, as here, the former prosecutor admits

that he has no recollection nor documentation as to his compliance with Brady in

this case, but simply believes that he did not violate the law, whether intentionally

or inadvertently .. Yet the district court inexplicably failed to consider any of it.


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findiflgs of Fact in Response to
Remand Order - Page 3
         This Court has repeatedly declined to adopt a trial court's findings under art

 11.07 if they are not supported by the objective record.            Here, the record not only

does not support Judge Hawthorne's cursory factual findings- it strongly supports

the detailed Findings of Fact and Law entered by the district judge who had earlier

presided over these writs.        Indeed, as discussed infra, the correctness of the

former district judge's findings recommending Brady relief were only strengthened

by the additional testimony and documentary evidence presented on remand.


                                 PROCEDURAL HISTORY

         Applicants Stanley Mozee and Dennis Allen were convicted the

robbery-murder of the Rev. Jesse Borns, Jr. - a Dallas shopkeeper who was

stabbed to death in April 1999 -- at separate trials in August and September, 2000.

Both Applicants maintained their innocence of the murder at trial, and continue to

do so.

         No forensic evidence or eyewitnesses connected either defendant to the

crime.     Instead, the State relied on a highly problematic "confession" by Mr.

Mozee, who suffered from a history of mental illness (and whose diagnoses had

been confirmed by County and State officials).             The "confession" was written out

for him to sign by a lone detective, contained no information that was not already

known to police, and was inconsistent with much of what police did know to be

true about the murder and the crime scene.            Indeed, Mr. Mozee's "confession"

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 4
 bore numerous features common to other, proven false confessions, as reflected in

 both social scientific reseaxch and case studies of the more than 25% of

post-conviction DNA exonerations to date that involved false confessions. 1

         The remainder of the State's case against both Applicants rested on

uncorroborated claims made by a series ofjailhouse informants and other

witnesses with criminal records and/or pending charges. At Mr. Mozee's trial, a

single jailhouse informant (Zane Smith) testified; he claimed that Mr. Mozee had

confessed the murder to him while at the County Jail. The State relied heavily on

Smith's alleged "corroboration" for Mr. Mozee's custodial confession, as well as

his claim that Mr. Mozee was faking symptoms of mental illness as part ofhis

defense.       At the time Smith made these allegations, he was incarcerated at the

County Jail, facing up to 20 years in prison on pending theft charges as a prior

felony offender; however, three weeks before he testified against Mr. Mozee, he

was given a highly favorable plea and sentence in which he received only 365 days

State Jail time. . Smith also testified at Mr. Allen's trial, along with a veritable

parade of similarly dubious (and uncorroborated) criminal informants, who each

claimed to have overheard Mr. Allen admit to the crime or otherwise claimed that


         1
            See, e.g., Applicants' Joint Memorandum of Law in Support of Applications for Writs of Habeas Corpus,
filed Sept. 11, 2014, at 14-17 (discussing Mr. Mozee's false confession, including its Jack of corroboration/conflicts
with other known case facts); Writ hearing Exhs. 4-6 (scholarly articles and studies regarding false confessions,
including DNA exoneration cases); Innocence Project, False Corif'essions and Admissions, available at
http://www.innocenceproject.org/causes-wrongful-conviction/false-confessions·or-admissions (discussing data and
underlying causes of false confessions in DNA exoneration cases).

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Reman4 Order - Page 5
they could establish some link between l\/Ir. Allen and the murder victim.

        On September 11, 2014, both Mro Mozee and Mr. Allen filed Applications

for Writs of Habeas Corpus under Tex. Code Crim. Proc. art. 11.07 and 11.073.

The writs and their accompanying Joint Memorandum of Law represented the

culmination of a multi-year investigation into Applicants' claims of innocence,

conducted by their counsel at the Innocence Project and Innocence Project of

Texas, with the cooperation of the then-Dallas County District Attorney, Craig

Watkins.      The writ raised multiple grounds for habeas relief, including

DNA-based claims of actual innocence, and a claim that new scientific evidence

would have likely resulted in acquittal had it been available at trial (citing the

results of state-of-the-art DNA testing conducted by the parties over several years).

See Joint Memorandum of Law filed 9/11/15, at 64-84.

        In addition, both Applicants presented new evidence that the former trial

prosecutor had violated their rights to due process by (1) withholding numerous

items of exculpatory evidence regarding testifying jailhouse informants, and (2)

knowingly eliciting and/or failing to correct false testimony given by at least two

of those informants, as well as by the lead detective in the case.             See id. at 85-108

(discussing claims for relief under Brady v. Maryland, 3 73 U.S. 83 (1963 ), and

Napue v. Illinois, 360 U.S. 264 (1959).           These claims were based primarily upon

contemporaneous c01Tespondence from two of the informants - Zane Smith and


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response ta
Remand Order - Page 6
Lonel Hardeman - that expressly discussed the benefits that the trial prosecutor

had promised to give them, and/or that they were demanding from the State, in

exchange for their testimony, but which directly impeached what the jury had been

told about the trial prosecutor's communications with these witnesses. See id.

These materials were in the prosecutor's trial file, but were only disclosed to the

defendants as part of the Dallas County District Attorney's "open file" policy,

which was not in effect at the time Applicants were convicted.

        In light of all the evidence developed and reviewed during the pmiies'

respective investigations, the District Attorney concluded in October 2014 that

both Applicants were, at the very least, clearly entitled to Brady relief, and that the

case was of such a nature that both Applicants should be released on personal bond

pending this Court's review of the record.           (They were released on October 28,

2014 and, thanks in part to their family and community ties, have fully complied

with all terms and conditions of bond.          Due to his medical needs, Mr. Mozee has

lived primarily in a supportive housing community in Dallas, while Mr. Allen has

resided with his extended family in the Dallas County area.)

        Specifically, Judge Stolz found it "readily apparent" from the documentary

record tbat that the trial prosecutor had failed to disclose the State's extensive

correspondence with informants Smith and Hardeman regarding the benefits they

sought and/or expected to receive from the State, in violation of Brady as well as


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 7
the trial judge's written discovery orders.          The court held that the trial prosecutor

had fbrther suppressed "the substantive discussions with the informants that

underlies this correspondence," and had failed to correct false testimony by these

informants about the matters reflected in their letters. The court proceeded to find

that these violations were material, in that they "undermine[cl] confidence in the

verdict[s]" against both Applicants, and required relief under Brady and related

authorities.     The parties and the trial court further agreed to defer any action on

Applicants' remaining grounds for relief.

        On February 4, 2015, this Court issued identical remand orders in both

Applicants' cases, instructing the trial court to further develop the factual record

regarding both Applicants' Brady claims.             Specifically, this Comi ordered the

trial court to "provide the trial prosecutor with the opportunity to respond" to the

Brady allegations.       The trial court was further ordered to issue supplemental

findings of fact and conclusions of law regarding "the response, if any, of the trial

prosecutor."

        Upon receiving the remand order, the Judge of the 265th Judicial District

Court, Judge Jennifer Bennett, recused herself from hearing this case (Judge

Bennett had previously served as a felony prosecutor in the same District

Attorney's Office as Rick Jackson, the former lead prosecutor in both the Allen

and Mozee cases).        The original findings in this case were made by Judge Mark


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 8
Stoltz, who was at that time Judge of the 265th Judicial District Court, but who left

office at the end of 2014.

        Following Judge Bennett's voluntary recusal, Judge Teresa Hawthorne of

the 203rd Judicial District Court was assigned to preside over the cases.               Judge

Hawthorne did not work in the Dallas District Attorney's Office with Mr. Jackson.

However, it was revealed at the hearing that she and Mr. Jackson had known one

another for twenty-five years (indeed, Mr. Jackson reminded Judge Hawthorne of

that fact, and addressed the judge by her first name, while on the record)

(RR.I.:46).     The State was also represented by a new District Attorney, with

fonner Judge Susan Hawk having replaced former District Attorney Watkins as

Dallas County District Attorney as of January, 2015, and ADA Patricia Cummings

replacing Russell Wilson as the Chief of the Conviction Integrity Unit.

        On October 26-27, 2015, Judge Hawthorne held an evidentiary hearing

pursuant to this Court's remand order.          The focus of the hearing was former ADA

Jackson's testimony.        At the time of the hearing, Mr. Jackson had "retired" from

the practice of law.      (R.I: l 0.)   After leaving the Dallas District Attorney's

Office in 2007, he briefly worked as a defense attorney, and then was hired as an

assistant prosecutor in Denton. (Id. at 11.) He left Denton County in 2013 due to

what he characterized as a"[m]utual disagreement with my boss." (Id.) When

asked to explain what that disagreement was, Mr. Jackson stated, "It had nothing to


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 9
 do with anything except his desire for me to be weak orr crime and my desire to

 prosecute cases fully." (Id at 12.)

        As discussed in greater detail infra (and in the accompanying Objections

filed herewith by Mr. Allen) Mr. Jackson candidly admitted that he had no

recollection whatsoever regarding whether or not he provided the correspondence

from these informants to either Applicant's trial counsel.              He did not deny that all

of the letters were Brady/Giglio material; he simply maintained that, because it

would have been his practice to make timely disclosure of exculpatory

information, he presumes he did so in the Mozee and Allen cases.

        Mr. Jackson agreed that he was given a full and fair opportunity to review

his trial file weeks before the hearing (which included extensive handwritten notes

that he himself prepared, during and prior to trial, including detailed notations

regarding discovery he had shown or given to counsel).                He was also provided his

own copy of a CD with the entire reporter's record from both trials.                (R.R.II:

124-26, 146.) Mr. Jackson's practice was to keep well-organized and meticulous

documentation of his work on a case, including what was provided to defense

counsel in discovery, and he was known to be extremely thorough in his

documentation. (R.RJ: 109-10).

        During his file review, however, Mr. Jackson admitted that he found no

specific mention of any of the infonnants' letters in any of the detailed lists he


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Fb1dings of Fact in Response to
Remand Order - Page 10
111ade about what he showed or provided to defense counsel.                 Instead, he found

one -- and only one -- indication in the entire record that, he claimed, supported his

belief that he must have given this correspondence to either defendant's counsel

prior to trial. (Id. at 127, R.R.I: 106-08, 113.)         That notation consisted ofa single

entry in his personal notes from the first day of Mr. Allen's trial (which took place

after Mr. Mozee was already convicted), documenting that Mr. Jackson had

"show[n]" Mr. Allen's counsel, James Oatman, the "lmife and rest of physical
                                                     '
evidence." (Id. at 108.) This entry, Mr. Jackson maintained, was proof in his mind

that he had shown Mr. Oatman the documentary evidence to which the defense

was entitled under Brady and Giglio.            He was cross-examined at length about the

well-understood difference between "physical evidence" and documentary

evidence, as well as the fact that he himself made a separate list of the documents

he showed or gave to Mr. Oatman in the Allen case, which notably did not include

the informants' letters. (Id. at 108-09, 113; R.R. II: 132.)           Mr. Jackson further

testified that he presumed (though on this point, he had no notes to even arguably

confinn his assumption) that he did the same for Mr. Mozee's counsel.                   (R.R.II:

52-53.)

        Finally, Mr. Jackson testified at length about what he maintained were his

consistent and wholly lawful practices when dealing with informants, under which,

he maintained, (1) he would "never" provide assistance to any informant with his


Applicani Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 11
 or her own criminal matter until after the informant testified and lVIr. Jackson was

 satisfied with the testimony, and (2) he would not have any specific discussion as

to actual or even "potential" benefits the State might provide to an informant until

after he or she testified.      (See, e.g., R.RJ: 33-34, R.R.H: 42-43, 62-64, 86.)             And

he claimed that he followed these practices with respect to each and every

informant who testified for him at the Mozee or Allen trials. (Id.; R.RJ: 36-37.)

        At the conclusion of the hearing, both Applicants indicated that they would

amend their writs in response to new information supporting their Brady claims

that had been presented at the hearing (including through the trial prosecutor's own

testimony and notes), as well as additional issues and potential claims for relief

that emerged at the hearing.         Counsel for both Applicants and the State informed

the district court that they anticipated the need for further testimony and/or

development of the record to address these issues. (R.II: 166-67.) The court

asked if the parties were ready to set another date "to continue the hearing."

Applicants' counsel indicated that they would prefer to confer with the State and

get back to the court with a proposed date, and the court agreed. (Id. at 167.)

        On November 15, 2015, both Applicants filed Amended Applications for

Writs of Habeas Corpus.2 In their amended writs, they alleged that new


       2
       Due to an editing error in the original Amended Writ, which resulted in one of the
grounds for relief exceeding the maximum page limitations, Mr. Mozee filed a corrected copy of
his Amended Writ on November 18, 2015.

Applicant Stanley Mozee's Objections la Trial Court's Supplemental Findil1gs ofFact in Response to
Remand Order - Page 12
 documentary evidence and testimony revealed that the t:dal prosecutor had

committed still further Brady violations with respect to other informant witnesses

as well as eyewitnesses, similar to (but separate from) the violations regarding

informants Smith and Hardeman that were the principal focus of the remand

hearing.     (They also alleged, in the alternative, that if the trial prosecutor was

somehow correct in his assumption that he had disclosed any of what everyone

agreed was Brady material to defense counsel at trial, then trial counsel were

ineffective for failing to present that evidence to the jmy.)

        On November I 0, 2015, without waiting for the parties to schedule

additional hearing dates, nor for the record of the October 26-27 hearing to be

prepared, Judge Hawthorne issued Findings of Fact on remand.                   The court did not

disturb or challenge Judge Stoltz's Findings of Fact and Conclusions of Law

regarding the significance or materiality of the informants' correspondence, or Mr.

Jackson's underlying discussions with these informants, under Brady.                   The court

also did not disturb (nor address) Applicants' claims that ADA Jackson had

knowingly failed to correct false testimony from both informants at trial, which

Judge Stoltz had found to be supported by the record and the applicable caselaw.

Instead, in an extremely cursory fashion, the comt made a general finding that Mr.

Jackson was "credible," and proceeded to enter the following Findings of Fact:

               The court finds that Mr. Jackson testified that he did not violate Brady
               v. Maryland in this cause.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 13
                The court finds that l\/Ir. Jackson had no specific recall of handling the
                jail house letters from the informants to defense counsel. The Court,
                however, finds that while Mr. Jackson had no specific recall of
                handing over the letters, his meticulous trial notes indicate that he
                turned over all of the physical evidence to defense counsel. The Court
                finds that Mr. Jackson was convinced that he would have included the
                jailhouse letters as part of the physical evidence handed over to
                defense counsel.

                The Court finds that Mr. Jackson's testimony and his notes support
                that he turned over the jailhouse letters to defense counsel.

        Notably, the court entered identical Findings as to both Applicants, even

though, by the trial prosecutor's own admission, the "meticulous notes" relied

upon were prepared on the first day of the Allen trial -- which took place one

month after Mr. Mozee was convicted, and thus had nothing to do with any

discovery the prosecutor may have provided to Mr. Mozee.

        These Objections follow.



                                 STANDARD OF REVIEW

        As "the ultimate fact-finder" on any writ application, this Court has made

clear that it will only defer to a trial court's findings if they are supported by the

record as a whole.       See, e.g., Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim.

App. 2014 ).     That is so even where, as here, the trial court's findings are based

primarily on its evaluation of a witness's credibility or demeanor. See, e.g., id at

568-69 (declining to adopt district court's finding that complainant's recantation

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findillgs of Fact in Response to
Remmid Order - Page 14
was credible, in light of other record evidence undermining her hearing testimony);

see also Exparte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) (same); Ex

Parte Flores, 387 S.W.3d 326 (Tex. Crim. App. 2012) (declining to defer to trial

court findings where court did not address or resolve significant factual issues in

dispute).

        Here, there are even less compelling grounds for deference to Judge

Hawthorne's findings as to ADA Jackson's purported credibility, because Mr.

Jackson was not able to recall - and thus could not testify regarding -- whether he

actually complied with Brady.           Instead, the only factual matters upon which Mr.

Jackson was able to testify were what he claimed were his standard practices when

using criminal informants (which Judge Hawthorne did not address), and his

personal belief that he must have followed those practices (and thus, complied with

Brady) in this case.

        As for the substantive law governing Applicant's claims, this Court has

 emphasized that he need not prove that the trial prosecutor deliberately

 suppressed favorable evidence, since "the good or bad faith of the state is

 irrelevant for due process purposes." Thomas v. State, 841S.W.2d399, 402 (Tex.

 Crim. App. 1992) (en bane).          Furthermore, where the record shows that

 exculpatory evidence -including evidence impeaching the credibility of a State's

 witness - was not disclosed, for whatever reason, an applicant need not prove that


Applicant Stanley Mozee's Objectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 15
 disclosure would necessarily have resulted in his acquittal.               Instead, he is

 entitled to habeas relief if the State's failure to disclose Brady material

 "undermine[s] confidence in the verdict." Id. at 405; see also Smith v. Cain, 132

 S.Ct. 627 (2012}.       And where a prosecutor fails to correct testimony that he

 knew to be false or misleading, an even more generous standard applies, and

 relief shall be granted if"the false testimony could ... in any reasonable likelihood

 have affected the judgment of the jury." Giglio, 405 U.S. at 153-54 (quoting Napue

 v. lllinois, 360 U.S. 264, 269 (1959)).


                                          ARGUMENT

        I.      The District Court's Findings that the Brady Letters by
                Informant Zane Smith Were Turned Over to Mr. Mozee Are
                Not Supported by the Record Because- by the Trial
                Prosecutor's Own Account- Any Disclosure of the Letters Did
                Not Occur Until the Start of Co-Defendant Allen's Trial,
                Which Was One·Month After Mr. Mozee Was Already
                Convicted

        Mr. Mozee's first Objection to the district court's findings is as simple

as it is unassailable.     Judge Hawthorne's fmdings regarding Mr. Mozee are

clearly not supported by the record, because - in entering identical, verbatim

Findings as to both Applicants -- the only portion of the testimony and

exhibits that she relied upon to find that former ADA Jackson "tumed over

the jailhouse letters to defense counsel" have nothing whatsoever to do with

Mr. Mozee's trial nor any disclosures made to his lawyer. Instead, they

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact if• Response to
RemmidOrder-Page 16
relate solely to the prosecutor's recollection and notes regarding the Allen

trial, which occurred one month after Mr. Mozee was already convicted.

        This is plain error even if this Court were to fully accept the trial

prosecutor's testimony as to what he believes he provided to the defense by

way of discovery in either Mozee's or Allen's case, including his own

interpretation of his file notes.        This is because, by fonner ADA Jackson's

own admission, the "trial notes" cited by the district coUrt in its Findings

were prepared by Jackson on the first day of Mr. Allen's trial (August 28,

2000) and relate only to the discovery he gave to Mr. Allen's lawyer on that

date.    By that time, Mr. Mozee was already convicted, as his trial

concluded on August 1, 2000.            Thus, the trial prosecutor's notes and

alleged recollection as to the discovery he claims he provided - which was

the only evidence or testimony that the district court relied upon in finding

that the informant letters were disclosed to either counsel - reveal absolutely

nothing about whether Jackson had complied with his Brady obligations

towards Mr. Mozee.

        As noted supra, Mr. Jackson candidly admitted that he had no

recollection of turning over any of the jailhouse informant letters to either

defendant's counsel. (R.R.I:95-96.)           However, he conceded that all of the

letters in question were Brady/Giglio material, and were further subject to


Applicant Stanley Mozee's OfJjectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 17
 mandatory disclosure under the express tenns of certain pretrial orders

 entered in this case. (R.RJ:94, R.R.II:76.)         He also admitted that there was

 no indication anywhere in the Reporter's Record that either defense attorney

 had the letters, or knew about them, when they cross-examined these

informants.      (R.R.I:96.)     Upon reviewing his own extensive trial file,

including his "meticulous notes," Mr. Jackson found just one entry that he

claimed was corroboration for his "belief' that he disclosed the letters to

either defense counsel. (R.R.II: 127, 136.) This was the notation dated

8/28/00, in which Jackson wrote - under the header "Show Oatman" -

"knife and rest of physical evidence." (R.R.I:l 13.) James Oatman was Mr.

Allen's lawyer, but did not represent Mr. Mozee.

        According to Jackson, this "physical evidence" notation is "proof'

that on the first day of Mr. Allen's trial, he "show[ed] Oatman" not just

tangible items of property like the knife, the decedent's clothing, etc., but

also any and all documentary evidence - including all of the informants'

letters -that constituted Brady material.          (R.R.I: 106-107, R.R.II:l27, 132.)

It was this notation, and Jackson's testimony regarding it, that was the only

factual basis for Judge Hawthorne's fmding that "he turned over the letters

to defense counsel," in identical Findings she entered for both Applicants.

       Even assuming arguendo that this Court were to find that the record


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 18
supports Judge Hawthmne's conclusion that the informant letters were

included among the "physical evidence" made available to Mr. Allen

(which, for the reasons cogently stated in Mr. Allen's Objections, it does

not), by Mr. Jackson's own admission, the evidence relied upon by the

district court does not apply to Mr. Mozee's writ.            For Mr. Jackson

admitted at the hearing that (1) the notation in question was made on the first

day at Allen's trial, and described discovery he provided at the Allen trial

only, (2) in his extensive search of his trial file, he found no corresponding

notes regarding any discovery he provided to Mr. Mozee 's lawyer - either at

the start of the Mozee trial, or at any other time. (R.R.I: 113; R.R.II: 52-53.)

Thus, not only did Mr. Jackson admit that he has no recollection of

providing these letters to Mr. Mozee, he also admitted that in Mr. Mozee's

case (unlike Allen's), he also does not have a single item of documentation

to support his assumption that he did so.

       For these reasons, the district court clearly erred when she entered

Findings in Mr. Mozee's case that rest upon Mr. Jackson's "meticulous trial

notes."    By Mr. Jackson's own admission, no such notes exist as to the

discovery provided to Mr. Mozee.            For that reason alone, this Court should

reject the district court's Findings as to Mr. Mozee's writ.

       This leaves only the well-supported Findings (agreed to by the State)


Applimnt Stanley Mozee's Objections to Trial Court's Supplementul Findings of Fact in Response to
RemandOrder-Page 19
by Judge Stolz: that the letters written by Zane Smith, and the substantive

discussions between Smith and the trial prosecutor referenced in this

correspondence, were not disclosed to Mr. Mozee.                With all due respect to

Judge Hawthorne, it is troubling that the court made no mention of any

portion of the extensive record before her that applies to Mr. Mozee's case,

nor did she take into account the prosecutor's own admission that the very

portions of the record she relied upon actually do not apply to Mr. Mozee.

Combined with the fact that Judge Hawthorne entered her Findings without

waiting for the transcripts or exhibits from the writ hearing to be prepared,

Mr. Mozee respectfully submits that this Court should hesitate to defer to her

interpretation of the record.

        II.     The District Court Failed to Conside1· or Note that the Trial
                Prosecutor Admitted That He Violated His Duty to Disclose the
                Second (and Most Critical) of Two Brady Letters Written by the
                Lone Informant Who Testified Against Mr. Mozee
        As noted supra, unlike at Mr. Allen's trial (where the State relied on

six different informants who had pending or recently-adjudicated criminal

charges against them), only one jailhouse informant testified at Mr. Mozee's

trial: Zane Arlester Smith, a County Jail inmate who claimed that Mr. Mozee

made a full confession to the murder to him.            Smith wrote two letters to the

State regarding his allegations and testimony against Mr. Mozee, both of

which were received by ADA Jackson at the time, and preserved in his trial

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response ta
Remand Order - Page 20
file.   There is no dispute that Mr. Mozee's jury never heard about either of

the two letters, as no mention was made ofthern at Mr. Mozee's trial.

        In the first letter, Smith revealed some (but not all) of the inculpatory

information he claimed to have against Mr. Mozee; and even though Smith

had yet to meet with a single State official regarding his proffered

information, he wrote that he was "willing to testify."             This letter was

written on June 28, 2000- less than two weeks before Smith's highly

favorable plea and sentence were entered in his pending theft cases (on July

11, 2000), and one month before he testified for the State at Mr. Mozee's

                      3
trial. See Exh. 35.       •


        The second letter was written by Smith to ADA Jackson on August 2,

2000 - the day after Smith testified, and the same day Mr. Mozee was

convicted.      It was in the second letter that Smith referenced earlier

discussions he had with the prosecutor about assistance he believed the

prosecutor would provide regarding his own conviction and sentence after

he testified against Mr. Mozee.          Specifically, Smith sought confirmation

that the prosecutor would, in fact, deliver on what Smith believed had been

promised to him before he testified.          See Exh. 41 ("what I'd like to know is:

Will you still be able to intercede on my behalf as you said[?]") (emphasis

        3
          Cites to exhibits in these Objections refer to the exhibits admitted into evidence at the
writ hearing held on October 26-27, 2015.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 21
supplied); see also Joint MOL at 45-50 (discussing conflict with testimony,

in which Smith claimed he had no prior deal, agreement, or understanding

with the prosecutor regarding his own sentence, and was only "hoping" that

the prosecutor ''may" agree to assist him "at some point down the road").

        Whether or not Smith's letter accurately reflected what Mr. Jackson

promised to do for Smith in their pretrial meetings, Mr. Jackson nonetheless

agreed that this second letter (like the first) was clearly Brady/Giglio

material as to Smith. (R.R.II:76.)         Yet he admitted that he did not disclose

it to Mr. Mozee's lawyer.         Specifically, Mr. Jackson testified that while he

believed he disclosed this letter to Mr. Allen's lawyer (because it was

written several weeks before the Allen trial), he did not give the letter to Mr.

Mozee's lawyer "at any point," since Smith did not write it until the day

after the Mozee verdict. See R.R.II: 68-69.

        However, when asked about his continuing obligations under Brady,

Mr. Jackson conceded that he would, at the very least, have a duty to

disclose any such correspondence sent to him within the thirty-day period

during which Mr. Mozee could still file a motion for a new trial under Tex.

Rule App. Proc. 21.        (Id at 106-07.) By this time, Mr. Jackson had

already admitted that there was "no question" he had not notified Mr.

Mozee's lawyer about Smith's second letter (Id. at 69), and he did not retract


Applicant Stanley Mozee's Objections to Trial Court's Supplemelltal Findings of Fact in Response to
Remand Order - Page 22
that testimony. Yet Judge Hawthorne made no mention of these significant

concessions as to IVlr. Mozee when she entered identical findings in both

Applicants' cases.

          It has never been disputed that the second letter from Smith - the only

testifying informant in Mr. Mozee' s case - is significant Brady material. (Id.

at 76.)      It reveals that Smith immediately sought to capitalize on what he

believed was the prosecutor's promise to "intercede on [his] behalf' after he

testified against Mr. Mozee (Id. at 67.).          The significance of the letter was

only further confinned at the writ hearing, when ADA Jackson was

questioned about its contents and the pretrial communications that preceded

it.   In direct contradiction to what Smith asserts in his letter, Mr. Jackson

maintained that not only did he not promise Smith that he would "intercede

on [his] behalf," but insisted that he would "never" discuss even "potential"

assistance in securing a sentence reduction with Smith, or any other

jailhouse informant, until after the fact:

        Q:      So you are saying you would never tell somebody you would
                get them a - potentially get them a reduction in their sentence
                after they've testified?

        A:      I would never tell them that ahead of time, that's correct.

R.R.II: 63.

        Notably, Judge Hawthorne did not disturb Judge Stoltz's earlier


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findi11gs of Fact in Response to
Remand Orde,. - Page 23
 Finding of Pact and Law (which was also agreed to by the State) tha:c if

 Smith's correspondence was not disclosed, it would be a Brady violation

 requiring habeas relief for Mr. Mozee.           Instead, she simply found (without

 citation to the record) that Mr. Jackson "turned over the letters to defense

counsel" - without, apparently, recalling that he had admitted precisely the

opposite when he testified about Mr. Mozee's case.

        For this reason alone, this Court should decline to adopt Judge

Hawthorne's findings as to Mr. Mozee, as unsupported (and, indeed, directly

contradicted) by the record.         Instead, it should adopt the previous finding

by Judge Stoltz that the letter was not disclosed - a conclusion that has only

been strengthened by the former prosecutor's own testimony on remand -

and grant relief on that basis alone.

        III.    The Record Also Establishes That ADA Jackson Did Not
                Disclose to Mr. Mozee's Counsel the First of the Two Brady
                Letters Sent by Informant Smith, and Appears to Have
                Misled Counsel as to the Timing and Nature of the State's
                Pretrial Contacts With Smith
        In focusing exclusively on the file notations pertaining to what ADA

Jackson believed he provided by way of discovery on the first day of Mr.

Allen's trial, the district court also neglected to consider the substantial

record evidence that Mr. Jackson did not disclose to Mr. Mozee's counsel

the first of the two letters sent to him by informant Smith, dated June 28,


Applicant Stanley Mozee 's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 24
2000 (Exhibit 3 5 at the writ hearing),         The record evidence clearly shows

that Exhibit 3 5 was JJso not disclosed to l\1r. Mozee.            That conclusion is

supported, inter alia, by the fact that Mr. Jackson had no notes even

arguably documenting this alleged disclosure, whereas Mr. Mozee's counsel,

Matt Fry, prepared his own detailed, contemporaneous notes of his

discussions with ADA Jackson regarding Smith at the start of Mr. Mozee's

trial on July 31, 2000 (the date that ADA Jackson alleges he would have

disclosed the letter to Mr. Fry).        Defense counsel's notes make no mention

of the letter, and when considered alongside Smith's testimony, it is clear

that Mr. Fry was wholly unaware of the letter's contents.

       Equally troubling (though not necessary for Brady relief, given the

substantial Brady evidence already presented), the record also supports an

inference that Mr. Jackson withheld this letter from Mr. Fry after misleading

the defense about the timing and nature of his pretrial communications with

Smith.     This information was critical to Mr. Mozee's defense, because had

it been disclosed, the jurors would surely have viewed with great skepticism

Smith's claim that his highly favorable theft plea on July 11, 2000 had no

connection whatsoever to his written offer to testify against Mr. Mozee that

he made just two weeks earlier.




Applicant Sta11ley Mozee's Objections to Trial Coart's Sapplemental Findings ofFact in Response to
Remand Order - Page 25
        A. Contemporaneous Record From Mozee Trial Provides No
           Evidence that the Letter Was Disclosed, and Substantial
           Evidence That it Was Not
        Exhibit 35 (the "first Smith letter") was dated June 28, 2000, and was

sent by Smith from the County Jail to "whom it may concern" c/o the

Clerk's Office.      It was forwarded to ADA Jackson, who placed it in his

original trial file. (R.RII:70-71 ). It read as follows:

        To Whom it may Concern:

        My nam~ is Zane Smith and I am writing this statement in reguards
        [sic] to a homicide that happened several months ago. I am a relative
        of Stanley Orson Mozee and he is being charged with the Homicide
        case of a Dallas Preacher. I have spoken to Stanley Mozee on several
        occassions [sic] where he told me that he was involved in the
        Homicide. I am willing to testify to what Mr. Mozee stated to me.

        The Preacher who was killed his name is Jesse Borns Jr.
        Age: 70 yr. old.
                                       Sincerely,
                                      Zane Smith

        Unlike the August 2, 2000 letter from Smith (Exh. 41) or the letters

from Lone! Hardeman in the Allen case (Exhs. 12-13, and 18-20), this June

281h letter does not discuss the specific benefits Smith was expecting to

receive in exchange for being "willing to testify."           However, ADA Jackson

agreed at the hearing that he was obligated to disclose this correspondence

and any substantive discussions with Smith about his testimony that may

have followed, both under Brady-Giglio, as well as pursuant to the clear


Applicant Stanley Molf!e's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 26
terms of an Omnibus discovery order entered weeks earlier in the Mozee

case.

        The pretrial discovery order is significant, because it supports both a

finding of nondisclosure and confirms the resulting prejudice to Mr. Mozee.

Mr. Mozee's counsel filed a comprehensive Omnibus Motion on November

30, 1999 - more than seven months before his July 31, 2000 trial began.

The motion was granted by Judge Dean on June 26, 2000 (over a month

before trial, and just before Smith wrote his first letter). In the Motion and

Order, Mr. Mozee's counsel sought- and was granted- not only

constitutionally required Brady disclosures, but also timely disclosure of

precisely the s01t of basic background information necessary to give him a

fair opportunity to investigate and prepare to cross-examine jailhouse

informant witnesses like Smith.           This included the witnesses' prior written

statements; information as to any criminal charges they may have been

facing; and information regarding any assistance with those charges that the

witness may expect to receive from the State.             See R.RI: 56-58; Exh. 8

(State v. Mozee, Omnibus Motion and Order, at Pt. 9) (requiring disclosure

of"any and all written statements made or adopted by a witness who

testifies"); Id. at Pt. 12 (State "order[ed] the State to produce, prior to trial,

all criminal records of witnesses that they intend to call to the stand in the


Appli;;ant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 2 7
 trial of this case, and fhrther, to determine and disclose any pending charges

 that the prospective witnesses may have ... [and] whether [the State] has

 made, promised, or implied any promises, benefits, or concessions to any

prospective witness") (emphasis supplied).

        Thus, the record is clear that ADA Jackson was obliged to disclose

not just Smith's June 28, 2000 correspondence, but also to provide, "prior to

trial," a copy of Smith's criminal history, as well as information regarding

his pending charges and his discussions with the State about

potential/promised benefits to Smith.

        The record demonstrates, however, that none of this information was

provided to the defense before Smith testified.            As with the other informant

letters, Mr. Jackson agreed that he was obligated to disclose this letter to Mr.

Fry. (R.R.II: 52.)      He also admitted that had no recollection of doing so, but

only "believe[s]" he did. (Id.)        He further testified that it would have been

his practice to make this disclosure no later than on the first morning of trial

- which he would have done by pulling the letter out of his own file and

showing it to Mr. Fry, and giving a copy to counsel upon request. (Id.) ("I

would have done the same thing with [Fry] that I did with Oatman").

        Unlike in the Allen case, however, the State's file does not contain a

single notation regarding any discovery (either "physical evidence" or


Applicant Stanley Moz.ee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 28
documentaPJ evidence) that Mr. Jackson allegedly showed or gave to Mr.

Fry at the start of trial. . Mr. Jackson searched his file for notes that may

have confi11ned his assumption that he gave Mr. Fry the letter, yet found

none.     See RR:53.

        By contrast, Mr. Mozee's attorney did make a contemporaneous,

written record of the limited information that Mr. Jackson provided to him

regarding Smith on the first day of trial - which was when Mr. Jackson first

disclosed Smith's identity and allegations to the defense.             Mr. Fry's file

notation reads:

        7/31/00
        Prior to voir dire Rick Jackson tells me that in the last few days he has
        been contacted by a Zane Arlester Smith BD 04/19/65. An interview
        was done with Smith. Smith is D[efendant]'s cousin. He is in jail. He
        says he has talked to Din jail+ that D tells him just what he told Inv.
        Berry. He also says that D told him he was going to play crazy to get
        off.

        I tell D about it. He continues to want a trial. Will not consider
        helping the state on the Allen case. Rick Jackson continues to be
        willing to use D as a witness.

 Exh. 38 (emphasis supplied).

        This notation clearly makes no mention of being shown or given a

copy of Smith's June 28, 2000 letter.          Instead, it accepts ADA Jackson's

(inaccurate) representation that he was frrst "contacted" by Smith only "in

the last few days" (i.e., at the end of July).


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 29
        Similarly, when ADA Jackson called Smith 'if\ras c.alled to testify at

lVIr. Mozee's trial the following day, he repeatedly elicited testimony from

Smith that they had not even spoken about this case until after his own July

 11th plea and sentence were fmal.          See, e.g., Mozee T.T. at 119 (Q: "Now,

Mr. Smith, what you're telling me, you told me that after you were already

sentenced; is that right?" A: "Yes, sir."); Id. at 120-21 (Q: "Are you lying to

the jury hoping that I might help you?" A: "Oh, no, sir.              No, sir, I'm not."

Q;. Okay.     It's your testimony, you told me that knowing that your sentence

was already over and that I may or may not help you out in the future?" A:

"Yes, sir.") (emphasis supplied).          Moreover, when Mr. Fry attempted to

cross-examine Smith about his contact with the State and when it occurred

in relation to his plea, he was clearly unaware of the June date on which

Smith had first made his allegations.           See id. at 1212 (Q: "And your

testimony is you were already sentenced to [365 days in the State Jail]

before you ever got involved in this situation; did I understand you to say

that?" A: Yes, sir.") (emphasis supplied).

        The only reasonable conclusion from this record is that ADA Jackson

did not provide Mr. Fry with Smith's June 28, 2000 letter.               For it is, to say

the least, difficult to imagine that if Mr. Fry had been shown this letter prior

to voir dire, he would not have noted it in his detailed entry regarding what


Applica11t Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 3()
he v1as told about Smith on that same date. 4

        This is so for several reasons.       First, Smith was the only informant

called by the State at Mr. Mozee's trial, and Mr. Jackson waited to reveal his

identity and proffered testimony until the first day of trial.         As noted earlier,

Mr. Fry had filed a comprehensive pretrial motion more than seven months

earlier, on November 30, 1999, seeking discovery regarding any criminal

informant witnesses - including prior written statements, their criminal

histories, and information about pending charges and potential benefits from

the State.    Certainly, then, Mr. Fry would have had every reason to preserve

a claim of a discovery/Braqy violation and the resulting prejudice to his

client in a capital murder case, by making a complete record of whatever

information he was being given, at the 11th hour, about the State's only

informant witness - including, at the very least, a notation that the

prosecutor had shown or given him Smith's letter, had Mr. Jackson actually

done so.

        Second, had Mr. Fry seen the letter, he would have immediately

noticed the obvious discrepancy between the date of Smith's letter (nearly

five weeks before) and Mr. Jackson's representation that he was only


       4
         Alternatively, as noted in Mr. Mozee's Amended Writ, if by some chance Mr. Fry was
shown or given this letter and did not make use of it in his cross-examination of Smith, his
performance was ineffective.

Applicant Stanley Mozee's ONeclions to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 31
contacted by Smith "in the last few days."            Finally, if he had seen the letter

dated nearly five weeks earlier, rvrr. Fry would have used it to correct the

false (or, at best, highly misleading) impression left by Smith's trial

testimony that there were no communications with the State about his

potential testimony until after his July 11th plea and sentence were "already

over."

         Thus, not only did Judge Hawthmne err in entering Findings adverse

to Mr. Mozee's Brady claim by relying solely on the prosecutor's notes from

Mr. Allen's trial, which occurred several weeks later.             She also failed to

consider numerous aspects of the written record from the Mozee trial that

directly contradict Mr. Jackson's present claim that he disclosed this letter to

the defense at the start of the Mozee trial.


         B. Additional Material in ADA Jackson's Trial File Reveals That
            He Was Aware of Smith's Claim that Mozee Had Confessed to
            Him and His Offer to Testify Weeks Before Mr. Mozee's Trial
            Began, Yet Falsely Stated Otherwise to Defense Counsel


         Prior to the writ hearing before Judge Hawthorne, the District

Attorney made ADA Jackson's original trial file available to undersigned

counsel for inspection Gust as ADA Jackson was given the opportunity to go

through the file before testifying).        During that review, counsel discovered

additional material in Mr. Jackson's trial file that further demonstrates the

Applicant Stanley Mozee 's ONections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 32
prejudice caused by his failure to disclose Smith's first letter.             The contents

of this file are compelling evidence that l\!fr. Jackson affirmatively misled

defense counsel when he claimed, at the start of trial, that he only became

aware of Smith's allegations "a few days" before trial began.

        The document in question was entered at the writ hearing as Exhibit

36.    See R.R.II: 36-37.       It is an original printout of a Dallas County

criminal history check on Zane Smith dated July 7, 2000, and was located in

l\!fr. Jackson's own trial file for this case, in a subfolder he had labeled:

"Zane Smith." (Id. at 65-66.)

        When shown this document, l\!fr. Jackson conceded that (1) either he

or someone acting at his direction ran Smith's criminal history while

preparing for trial in the Mozee case, (2) the criminal history search was

performed on or before July 7, 2000 (as he explained, it could have been

done even earlier, and not printed out until July ih), and thus, (3) on or

before July 7, 2000-four days before Smith's own highly favorable plea

was entered -- ADA Jackson was personally "aware of the letter" that Smith

had sent on June 28, 2000, in which he claimed that JVfr. Mozee had

confessed to him and offered to testify for the State. (R.R.Il:37-39, 49.)5


        5
         Mr. Jackson admitted that Smith was a significant witness against Mr. Mozee, whom he
would have wanted to interview as soon as possible after receiving Smith's June 28th letter.
R.R.II:35. When asked why he told Mr. Mozee's lawyer on Jnly 31st that he had only spoken

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fltet in Response to
Remand Order - Page 33
        The discovery of this document imd the above concessions by l\l!r.

Jackson appear to foreclose the only innocent explanation for why he waited

so long to inform the defense about Smith's testimony: that Smith's June

28 1h letter took several weeks to make its way from the clerk's office into

Mr. Jackson's hands.         For Mr. Jackson has now admitted that he was

personally aware that Smith claimed that Mr. Mozee confessed to him, and

was "willing to testify" about that allegation, at least three weeks before Mr.

Mozee's trial. Yet he did not disclose this information (nor Smith's

criminal history, nor the pending theft charges that were resolved by plea on

July 11th - all of which were subject to mandatory pretrial disclosure per

Judge Dean's order) until July 31 '1, on the morning of trial.            Even more

troubling, the record contains substantial evidence that Mr. Jackson was less

than truthful with Mr. Fry when he explained the reason for the late notice,

i.e., by assuring Mr. Fry that he was only "contacted" by Smith "a few days"

earlier.

        Thus, regardless of whether this Court finds that Mr. Jackson himself

played any role in securing Smith's highly favorable plea and sentence,

which was entered days after Mr. Jackson learned of his availability as a

with Smith "in the last few days," he speculated that he might have been busy with other trkils at
that time. Id at 50-51. Yet the State's records showed that the Mozee and Allen trials were the
only ones that entire year in which Mr. Jackson was lead prosecutor; furthermore, between May
and August, he only helped pick juries in two other cases. Id. at 138-42.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 34
wi1ness and ran his criminal history, the nondisclosure of this letter is

significant.     It clearly "undermine[s] confidence in the outcome" ofivfr.

Mozee's trial, see Smith v. Cain, supra, because (1) the State provided

defense counsel with belated and inaccurate information about Smith's offer

to testify, (2) deprived counsel of the timely pretrial disclosures (Smith's

criminal history, current or recently-pending cases, and pretrial discussions

with the State about actual or implied benefits) to which the defense was

entitled under Brady and Judge Dean's written order, and (3) prejudiced the

defense's ability to impeach Smith's false testimony as to the actual

sequence of these events, i.e., is claim that he did not "get involved" in Mr.

Mozee' s prosecution until he was "already sentenced" in his own case.

        IV.    The Record Demonstrates that the Trial Prosecutor Went to
               Extraordinary Lengths to Reward Smith After He Testified
               By Procuring iu1 Illegal Judgment and Reduced Sentence for
               Him, Further Impeaching His Representation to Mr.
               Mozee's Jury that He Had "No Deal" With Smith
        Mr. Mozee's allegation that Zane Smith testified falsely at his trial (as

well as at Allen's) when he claimed to have no deal, agreement, or

understanding with the State regarding a potential sentence reduction is not

only supported by Smith's undisclosed letter to ADA Jackson, seeking

confirmation that the prosecutor would "intercede on [Smith's] behalf' as he

had promised. It is also demonstrated by the evidence developed at the writ


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 35
hearing that ADA Jackson went to extraordinary lengths to deliver on that

prollllse.

        Specifically, Mr. Jackson's effmis resulted in the entry of a highly

favorable new judgment and resentencing in Smith's previously-pled theft

case, leading to Smith's immediate release from custody -- even though the

district judge from whom Mr. Jackson unwittingly secured this new

judgment had no jurisdiction to grant this relief.           Moreover, these were

precisely the so1i of actions that Mr. Jackson swore at the hearing he would

"never" take on an informant's behalf (testimony he gave before being

confronted with the original record from Smith's case fifteen years ago).

        The logical and inescapable inference from this evidence is that Mr.

Jackson went to such remarkable lengths for Smith in order to deliver on

precisely the sort of "deal" he now denies making. . For these reasons, this

Court should view with great skepticism Mr. Jackson's professed confidence

that he complied with Brady at Mr. Mozee's trial.

        A. Testimony Regarding Alleged Informant Practices
        At the writ hearing, Mr. Jackson testified at length about the practices

he purportedly followed in every case he handled when negotiating with

jailhouse informants or other witnesses with pending criminal charges.

        First, Mr. Jackson testified that he "never" told any informant that he


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 36
would provide any kind of benefit, or even discuss what sorts of things he

"might" or even "potentially" do for the witness, before the witness testified.

(See, e.g., R.R.!: 33-34; R.R.U:64, 86).          He testified that with respect to

Zane Smith, this meant that (despite Smith's letter stating otherwise) he

would never have discussed even the possibility of a future sentence

reduction with Smith, until after Smith had testified in the Mozee and Allen

trials. (Id. at 62-63.)    Second, Mr. Jackson stated that if the informant's

case was not in his own court, he did not get involved in providing these

benefits, even after the informant testified.         He stated that decision

regarding post-testimony benefits would be solely up to the prosecutor

handling the informant's case; Mr. Jackson would "never just go take over

the case." (Id. at 64.)     Instead, the most that he would do is speak to the

other prosecutor and advise him or her that the infonnant had cooperated

and ask for some consideration. (Id.; see also R.I.: 37: "I would go to

whomever was the lead prosecutor on that case, on the witness' case, and

say, look, this person came in, cooperated, testified for us, thought he told

the t1uth, you know, I don't know whatever your recommendation is, if you

can give them the benefit of that cooperation, that would be great.") · He

believed it was important, in his words, to "reward the behavior" of

testifying informants like Smith. (R.R.II: 84, 85, 89.)           But he maintained


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 37
that the most he would do was "talk to the other prosecutor about, you know,

what might be fair based upon their knowledge of the [informant's] case,"

since he himself was not "intimately familiar with what the facts are" and

thus should not decide the benefit the infonnant was to receive, if any.

(R.R.I: 37; see also id at 145 ("because I wouldn't have known the strength

of their case, I wouldn't have got involved ... I would have just told them of

the person's cooperation.")

        Third, Mr. Jackson testified that not only did he make clear to all of

his infonnants and their lawyers that he would not even discuss any specific

benefit they might receive in the future, but that sometimes - because of the

infonnant's circumstances - it might tmn out that he ultimately could do

nothing for the witness, and that was a risk the informant had to take. See,

e.g., R.R.I:34 ("there have been cases where a witness has testified and there

wasn't anything I could do for them and they ... didn't get the benefit of

their cooperation. There was nothing that I could change").

        Mr. Jackson did not remember anything about Smith or his

discussions with him regarding this case. (R.R. II: 63, 77).              Other than

Smith's letters, the State's file contains no notes or other record of what, if

anything, they may have discussed about potential benefits in exchange for

Smith's cooperation.        However, he was confident that he followed his


Applicant Stanley Mozee's Objectio11s lo Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 38
standard practices when dealing with Smith, before and after trial.

Specifically, Mr. Jackson was certain that he "did not agree prior to [Smith]

testifying that I would do anything for him. (R.RJI:75.)                Nor did he even

tell Smith that he "might" be able to get him a reduced sentence after he

testified. (R.R.II: 86).      As with other informants, Mr. Jackson stated that he

would have followed his "normal practice" and rewarded Smith's

cooperation only by speaking with the prosecutor handling Smith's case

after he testified.     (Id. at 64) (Q: "[Y]ou would go to the prosecutor on

Smith's case and tell him he helped you out, it's up to them whether they're

going to do anything for him.") (A: "Correct.").

        In addition, Mr. Jackson agreed that, because Smith had already pied

guilty and been sentenced in his own case before he testified in the Mozee or

Allen trials (with his plea entered in between the time he wrote to the State

and when Mr. Mozee's trial began), he likely had little or no incentive to

proceed to testify without an "offer to cut his sentence for him" - yet Mr.

Jackson maintained he would never have made such an offer, nor even

discussed it as a "potentialO" outcome.            (Id at 62-63; see also id at 86 (Q:

You never said I might get you a sentence reduction after you testify?") (A: I

never said that.")).

                Bo Benefits Given to Zane Smith


Applica11t Stanley Mozee's Objections to Trilli Court's Supplemental Findings of Fact in Response to
Remaml Order - Page 39
        The record indicates that Mr. Jackson effectively followed none of his

self-described rules for dealing with informants when it came to Smith's

testimony and the actions Mr. Jackson took on Smith's behalf in the wake of

that testimony.

        First, it is undisputed that Smith wrote to Mr. Jackson immediately

after he testified against Mr. Mozee, directly referencing the prosecutor's

earlier promise to "intercede on my behalf as you said" (Exh. 41 ).               Even

assuming Jackson had not made a specific promise as to what assistance he

would provide Smith, the letter clearly references at least some prior

conversations between Mr. Jackson and Smith about a potential sentence

reduction, which Mr. Jackson admitted was the only benefit the State could

provide him at that point.       Yet this was exactly the sort of pre-testimony

discussion that Mr. Jackson maintained he "never" engaged in with any

informant, including Smith.

       Second, and more fundamentally, because of the timing of the two

capital murder trials in which Smith testified for Mr. Jackson, it tmned out

that there was, in fact, "nothing [the State] could do" to reward his

cooperation - at least, not lawfully.        This is because, as Mr. Jackson

acknowledged, the only way to reduce Smith's sentence after his plea was

for the State to work with Smith's counsel to do an agreed motion for a new


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 40
triaL       (Id. at 60-61.) However, Mr. Allen's trial did not conclude until

September 1, 2000.             (See Exh. 40 and R.R. II: 60-61.)               By that thne, 52

days had passed since the entry of Smith's judgment and sentence - meaning

that the limited 30 day window in which Smith could bring such a motion

had expired. (Exh. 31; R.RJI: 83-84.).                  Mr. Jackson did not dispute that by

the time the Allen trial ended, the district court lacked jurisdiction to grant

Smith a new trial or otherwise reduce his sentence. (Id. at 83.) Thus,

Smith's was precisely the sort of situation Mr. Jackson had earlier described

as a potential outcome of his "no deal" practices when it came to infmmants

- that is, one in which he would be forced to tell Smith that there was

"nothing [the State] could do" to assist him after he testified, because it was

simply "too late" to reduce his sentence. (Id. at 86).

        Yet this is not what Mr. Jackson said or did.                   Rather than speaking

with the ADA who had prosecuted Smith, learning that the jurisdictional

window to reduce his sentence had already expired, and simply informing

Smith of that fact, Mr. Jackson took matters into his own hands.                          He

personally worked with Smith's counsel to prepare and file an out-of-time

Agreed Motion for a New Trial. (Exh. 42), which Mr. Jackson (not Smith's
                                                               6
own prosecutor) signed on behalf of the State.


        6
            Mr. Jackson was asked to explain how hls appearance on this Agreed Motion could possibly be

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
RemandOrder-Page 41
          JV!.r. Jackson does not have any present recollection as to how the

 parties presented the motion to the district judge in Smith's theft case (the

 Hon. Karen Greene, who is now deceased) (R.R.U: 87).                              Nor does he recall

 whether he made Judge Greene aware of the fact that this was an out-of-time

 motion that she had no jurisdiction to grant. (Id.)                     He had no explanation as

to why Judge Greene would have agreed to grant an out-of-time motion if

informed of this fact, particularly since Mr. Jackson knew her to be "a

stickler for the law"; his only explanation was that "she missed it somehow."

(Id. at 88.). Mr. Jackson also could not recall any other case in his career in

which he had asked a judge to ignore jurisdictional constraints in order to

reward an informant (although he maintained that he "didn't invent" this

remedy and that he believed other prosecutors had done it in the past). (Id. at

90).

         The benefit to Smith from Mr. Jackson's extraordinary action on his

behalf was substantial.             Indeed, Smith received the maximum possible

sentence reduction the State could provide - a recalculation of his 365-day

State Jail sentence to 244 days in the County Jail, which he had already

served.       Smith had originally faced up to 20 years in the Texas Department

reconciled with his earlier testimony that he would never "go take over a case" assigned to another prosecutor, and
that even a motion for a new trial would only be done "at my behest" in the other prosecutor's discretion. (R.R.!: 37;
R.R.11:77-79.) He had no answer except that Smith's was an "already disposed of case" in which he would spare
the other prosecutor the work of providing the benefit, and conceded that his earlier testimony as to his standard
practices could be fairly characterized as "true, except sometimes it's not." (Id at 79-80.)

Applicant Sta11ley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order· Page 42
 of Con-ections if convicted in his enhanced felony theft cases, and his case

 file jacket reflects thsJ his initial plea offer was for five years incarceration at

 TDC. (Id. at 144-45.) Within weeks of testifying for Mr. Jackson, however,

 Smith was freed directly from the County Jail after serving less than nine

months at County, without a day of State Jail time. (RR.II: 91, 142-43).

        In sum, had Mr. Jackson followed what he claimed to were his usual.

practices, he would have done the following: (1) had no discussions with

Smith about any actual or potential benefits before he testified; (2) warned

him and his lawyer that the State might not be able to do anything at all to

benefit him after he testified, because of his existing plea and sentence; (3)

after both the Mozee and Allen trials were over, gone and spoken with the

prosecutor who handled Smith's theft case on his behalf and asked for some

consideration; (4) learned that Smith's time to file a motion for a new trial -

the only way to lawfully reduce his sentence - had already expired; and (5)

gone back to Smith and said, "you know, Zane, there's nothing I can do, it's

too late." (R.II: 86).      Instead, after receiving a letter from Smith confim1ing

their earlier agreement to "intercede on my behalf as you said," Mr. Jackson

failed to disclose that letter to either defense counsel, then went to

extraordinary -- and apparently illegal -- lengths to reward Smith for his

cooperation.


Applicant Stanley Mozee's   Objectio11~' to   Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 43
        This record powerfully impeaches lVIr, Jackson's claims -- to ML

Mozee's jury (Tr. at 119), and in his testimony below -- that he had "no

deal" of any kind with Smith.           It is simply inconceivable that Mr. Jackson

would have personally intervened in Smith's theft case, and presented the

district court with an out-of-time sentence reduction that it had no

jurisdiction to grant, if he did not consider himself bound by an earlier

commitment he had made to reduce Smith's sentence, whether express or

implied.      That he wanted to generously reward Smith for his cooperation

was not surprising, since Smith was the was the only infonnant who testified

for him at both capital murder trials.          But Mr. Jackson was required to fully

disclose these anticipated benefits to defense counsel, and to refrain from

presenting false testimony by Smith about this issue.               Because the record as

a whole shows otherwise; this Court should vacate Mr. Mozee's conviction.

        V.      The Record Developed Below Also Contains Substantial
                Evidence of Other Violations by ADA Jackson Relating to
                Jailhouse Informants in This Case That the District Court
                Did Not Consider, but Which Strongly Support Mr. Mozee's
                Principal Brady Claim

        As discussed supra, ADA Jackson candidly admitted that he has no

present recollection of disclosing either of infonnant Smith's two letters to

Mr. Mozee's counsel, Matt Fry; that he did not, in fact, disclose the second

letter to Mr. Fry because he received it after trial, even though he was

Applicant Stanley Mozee's Objections to Trial Cou1"t's Supplemental Findings of Fact i11 Response to
Remand Order- Page 44
 obligated to do so; and that he also has no file notes that support his personal

belief that he disclosed the first letter (Exh. 35) to Iv'IJ. Fry. He also

maintained at the writ hearing that he played no role in helping Smith secure

his highly favorable plea and sentence three weeks before he testified; had "no

deal" whatsoever with Smith as to what the State might do for him after he

testified; and did not even tell Smith he would "potentially" help him with a

sentence reduction down the road.

        In essence, then, Mr. Jackson's defense to the overwhelming

circumstantial evidence on record that he did not disclose either of Smith's

letters, nor the underlying discussions/benefits that are reflected in them, is

that he is the sort of prosecutor who followed strict iules when it came to

informants, and would never commit Brady violations of this sort. In other

words, because it was his personal practice to make such disclosures in a

timely fashion and otherwise comply with Brady, he must have faithfully

honored those obligations when it came to Smith.

        Yet the record below contains substantial evidence that Mr. Jackson

clearly did not comply with Brady (regarding his disclosure obligations) and

Napue (regarding the duty to correct false statements or testimony) with

regard to numerous witnesses in both the Mozee and Allen trials.

Specifically, and as discussed below, the record contains new documentary


Applica11t Stanley Mozee's Ohjeclions to Trial Court's Supplemental Findings of Fact in Response to
Remand Order· P11ge 45
 evidence that Mr. Jackson (1) was personally aware that the lead detective

working with him on the Mozee and Allen cases had assisted at least two

 infonnants who testified against Mr. Allen with pending probation violations

before they testified, yet failed to disclose these benefits and represented

otherwise to the jury; and (2) failed to disclose that several eyewitnesses who

had seen the suspect(s) in possession of the murder victim's stolen property

had not identified either defendant, and/or had recanted their earlier

identifications of Mr. Allen as one of the suspects. (This latter violation was

just as harmful to Mr. Mozee as to Mr. Allen, because ADA Jackson knew of

this exculpatory eyewitness evidence yet still presented false testimony from

Det. Berry regarding the alleged identifications of Allen, and cited it as

"corroboration" for Mr. Mozee's false confession.)

        Even though some of these violations occurred at Mr. Allen's trial, they

go directly to whether Mr. Jackson made all of the required Brady disclosures

about Zane Smith, and did not present false testimony from Smith, in Mr.

Mozee's case. Put another way, since Mi:. Jackson has no recollection or

record of making these disclosures to Mr. Mozee's counsel, and admits that

his defense to the present Brady allegations rests solely on what he claims

were his standard practices and integrity as a prosecutor, this Court should




Applicant Stanley Mozee 's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 46
certainly consider any evidence that Mr. Jackson violated Brady in other

respects when prosecuting Mr. Mozee and/or his co-defendant.

        Both Applicants amended their writs after the hearing to specifically

plead these claims based upon the evidence presented to date, and all pmiies

are continuing to investigate these additional Brady issues. Nonetheless, Mr.

Jackson's answers to date, and the reports and notes in his own file, show that

he repeatedly violated Brady and Napue in the course of these prosecutions.

        The district court erred when she summarily found that Mr. Jackson

was "credible" in his personal belief that he turned over the Smith and

Hardeman letters, without addressing any of this additional Brady evidence,

nor even giving the pmiies the additional hearing dates they had requested to

further develop those facts. The evidence of these additional violations is

summarized below, so that this Court may duly consider its significance.


        A. The Trial Prosecutor Failed to Disclose Direct Assistance
           Provided to Two Testifying Informants Facing Probation
           Violations, Despite Claiming That He Would "Never" Assist An
           Informant Before Trial and Would Disclose that Information If
           the State Had Done So

        As noted above, Mr. Jackson did not remember any of his interactions

with Zane Smith before he testified, nor when they first met to discuss Smith's

allegations. But he was certain that he did not assist Smith in securing his

highly favorable plea and sentence on July 11th (three weeks before the Mozee

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of F11ct in Response to
Remand Order - Page 47
trial)-- because, I\1.:r. Jackson testified, he "never" provided any pre-testimony

benefits to an informant, and this would have applied to Smith. See, e.g.,

R.R.II: 43 ("I can tell you for sure that I didn't go and intervene on anyone's

behalf before they would have testified .... [b]ecause I never did it.") He

also maintained that he never directed or authorized anyone working for him,

including "a detective or an investigator,'' to provide a witness with any

assistance whatsoever before he or she testified. (R.R.I: 66.) He clarified that

he would authorize a detective to do something innocuous like "maybe give

[the witness] a ride to the courthouse or something,'' but certainly not to assist

with a pending criminal case. (Id.)

        ADA Jackson presumed that he followed these practices in the Mozee

and Allen cases. IfDet. Berry had provided a witness in the Mozee or Allen

cases with pre-testimony assistance in a pending criminal matter, it would

have been without Mr. Jackson's knowledge and not at his behest. (Id. at

66-67.) He readily agreed that ifDet. Berry had done so, that would be

Brady/Giglio material. (Id. at 130, 133, 140.) And if not disclosed to the

defense, it would be a Brady/Giglio violation "attributable to the

prosecution," whether or not Det. Berry told Mr. Jackson about what he had

done. (Id. at 130, 140.) He claimed it would greatly "surprise" him to learn

that Det. Berry had helped any witness in these cases before they testified, and


Applicant Stanley Mozee 's Objections to T/'i(ll Court's Sapplemen/(ll Findings of Fact in Response to
Remand Order - P11ge 48
 was certain that Det. Berry "never told him" about anything like that in this

 case. (Id. at66-67, 140.)

        However, the documentary record shows that (1) Det. Berry did

provide such assistance to at least two infonnants before they testified at the

Allen trial, and (2) Mr. Jackson was fully aware of what Det. Berry had done,

having recorded this information in his own pretrial notes for the Mozee and

Allen cases. Yet none of it was disclosed, and it is clear from the trial record

that the defense knew nothing about it

                1. Charles Manning

        Charles Manning testified for the State at the Allen trial. At the time

he testified, he was not in custody and told the jury that he was employed at a

local TV news station. However, at the time Rev. Borns was killed, he had

been homeless and addicted to crack, and the murder victim (Rev. Borns) had

hired him for odd jobs and allowed him to stay inside his store. Manning

then testified that he knew both Mr. Mozee and Nfr. Allen, and that the two

defendants frequently "hung out" together around that time. (See Allen. T.T.

Vol.III: 215-18). No mention was made of any criminal charges pending

against Manning, either at the time he testified or in the recent past (Id.)

       Although Manning provided no evidence tying Nfr. Allen or Mr. Mozee

to the murder, the State relied heavily on his testimony to establish an alleged


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Fimlings ofFact in Response to
Remand Order - Page 49
 link between them, MI. Jackson's co-counsel, ADA Eric Mountin, then

 went to great lengths at srumnation to distinguish }\/fanning from the other

testifying informants the State had presented. Unlike the informants with

pending criminal problems, ADA Mountin told the jury, Manning had none,

 and thus had no "reason to lie" for the State:

                 Remember Charles Manning? Remember the gentleman, the
                 homeless gentleman who talked about getting his life back
                 together? Remember how he told you what he remembered from
                 the streets, the people he knew, the people who ran in that
                 neighborhood? Remember one of the things that he talked about
                 was the fact that Dennis Allen and Stanley Mozee ran together
                 all the time. They were with each other all the time.

                 Now, why would Charles Manning lie about that? And what do I
                 mean lie about that? Well, Dennis Allen told you that he didn't
                 even know Stanley Mozee, didn't hang with Stanley Mozee,
                 didn't smoke crack cocaine with Stanley Mozee, had nothing to
                 do with Stanley Mozee. And yet Charles Manning pointed out to
                 you folks, that that was somebody that spent a lot of time
                 together. Why would Charles Manning lie? He is probably the
                 most credible witness of any witness in this case. Because he is
                 the one witness that no matter what Mr. Oatman may try to paint
                 on those other witnesses about deals that they may have made or
                 he alleges of thinks occurred or suggests occurred, there's no
                 deal with Charles Manning. There's no reason for Charles
                 Manning to lie.

(Exh. 25; R.R.II: 140.)

            What prosecutors did not tell the jury, 7 however, is that Manning was

in fact in legal jeopardy during the entire year he cooperated with the State's


        7
            It is unclear whether Mr. Mountin himself knew, at the time he made this argument,

Applicant Stanley Mozee's Objections to Trial Court's Supplemeltfal Findings of Fact ill Response to
Remand Order - Page 50
investigation into the Borns homicide, including when he testified.

Moreover, Det. Berry had personally intervened to keep him out of jail duxing

that time. Manning was on probation for aggravated theft at the time Rev.

Borns was killed in April 1999, and in August 1999, he was charged with

violating his probation. (R.R.I: 135-36; Exh. 24.) Yet he was not remanded

as a result of the violation, with the State's motion to revoke his probation

passed on several times in the ensuing months. Finally, after Det. Berry

intervened on his behalf(see infra), in January 2000 he was allowed to remain

free on a personal bond pending resolution of the motion. (Id.). The

revocation motion was still pending at the time Manning testified at the Allen

trial. (Id.)

        Mr. Jackson was fully aware of this information. At the hearing, what

Judge Hawthorne would later describe as Mr. Jackson's own "meticulous

notes" from his trial preparation in the Mozee and Allen cases were entered

into evidence. See Exhs. 14-17, 50-51; R.R.I: 109. In those notes, Mr.

Jackson documented the following: "Berry helped out Manning and

Degraftenreed with their probation violations." (Exh. 17; R.R.I: 127)

(emphasis added).



that Manning had a pending probation violation and that Det. Berry had intervened on his behalf
as a direct result of his cooperation. But Mr. Jackson clearly did know, as reflected in his notes
(see infra), and failed to correct Mr. Mountin's false argwnent to the jury.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 51
        ADA Jackson claimed to have no present recollection ofDet Berry's

 actions on l\1anning's behalf, nor did he recall whether he told the defense

 about it. (Id. at 129-30.) He swore under oath that Det. Berry "never told

 [me]" about any assistance provided to Manning in connection with this case.

(Id. at 140.) However, he eventually conceded that he would not have made

his file notation about Berry "help [ing] Manning and Degraftenreed with their

probation violations" if someone had not told him about that assistance. (Id. at

137.) He also agreed that any undisclosed actions Det. Berry had taken on

behalf of a witness with a pending probation violation would be a clear

violation of Brady. (Id. at 130.)

        Confronted with his file notes -- as well as the fact that he remained

silent at Mr. Allen's trial while his co-counsel argued to the jury in summation

that Manning had no pending criminal cases, and thus no "reason to lie" (id. at

138-39) -- Mr. Jackson proceeded to speculate that perhaps Manning's history

was not disclosed because Det. Berry had helped him with a prior violation,

resolved long before Manning became an informant in this case. See, e.g., id.

at 139 ("it could have been on a previous deal"); id. at 134 ("if we helped him

out years before then, I don't think it would" be covered by Brady).

        However, the record squarely refutes Mr. Jackson's hypothesis (which

he admitted was only speculation), for three reasons. First, Manning's own


Applicant Stanley Mozee's Objections to Trial Court's Suppleme11tal Findings of Fact in Response to
Remand Order - Page 52
official records, as noted above, show that he did in fact have a J;Jending

violation and motion to revoke at the time he testified in this case. Second,

the assistance Det. Berry provided was documented in Mr. Jackson's own

pretrial notes for the Mozee and Allen cases, further demonstrating the

connection to this case (and its exculpatory value) at the time. Third, shortly

after the foregoing evidence and testimony was presented at the hearing, the

current District Attorney investigated the circumstances surrounding

Manning's probation violation and why he was allowed to remain on bond in

1999-2000. The State's own records apparently confirmed that Manning's

cooperation with the State in the Mozee/Allen cases was specifically cited by

the State as a reason for the comt to allow Manning to remain on bond, and

that this intervention on his behalf occmred before he testified for Mr.

Jackson at Allen's trial. 8

          Like Zane Smith, Manning was also immediately rewarded for his

testimony. The State finally withdrew its long-pending motion to revoke his

probation on September 20, 2000 - less than three weeks after Mr. Allen was

convicted at the trial in which Manning testified. (Id.)


          8
          See Supplement to Amended Applications for Writ of Habeas Corpus, filed Nov. 18,
2015 (setting forth State's post-hearing Brady disclosures to Applicants regarding Manning).
The State has also informed the undersigned that Manning acted as a police informant on other
cases besides this one, and was suffering from severe mental problems at the time of the Borns
investigation. These are still further Brady disclosures that were not made by Mr. Jackson.
See id.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 53
                2. Alvin Degraftenreed

        Mr. Jackson's nondisclosure ofDet. Beny's pre-testimony assistance

to another witness, Alvin Degraftenreed, essentially mirrors what transpired

with Manning. Degraftenreed identified Mr. Allen at trial as the taller

companion of a "short" man he claimed to have seen arguing with the

homicide victim on the night of the murder. (Allen T.T., Vol. 3 at 183.) At

the conclusion of his testimony, Mr. Jackson asked ifDegraftemeed had any

"prior felony criminal record," and the witness answered affirmatively. The

jury was then told that his sentence for this offense was long ago "lived out,"

and that the State had not assisted him for "any reason or on any subject":

                        Q: [D]o you have any prior felony criminal record?
                       A: Yes.
                       Q: Okay. What was that?
                       A: Arson.
                       Q: Okay. How long ago?
                       A: Oh, ten years-probably ten years.
                       Q: Okay. Did you get probation or penitentiary time?
                       A: I got probation
                       Q: Did you live it out or did you get revoked and sent to
                       the pen?
                       A: I lived it out.
                       Q: Do you have any other prior felony convictions.
                       A:No.
                       Q: Do you have any other theft convictions?
                       A:No.
                       Q: Have you asked me or have I said that I would
                       intercede in your behalf on any reason or any subject?
                       A:No.

Id. at 185-86; Exh. 22 (emphasis supplied).

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 54
        This was incorrect As with ]\!fanning, the record shows that

Degraftenreed in fact had a 2ending probation violation while the Borns

investigation was ongoing. Mr. Jackson was aware of that violation, as well

as the fact that Det. Berry had "helped" him with the violation, recording that

information in his pretrial notes. (See Exh. 17, 22; R.R.I: 130-32.) In fact,

the State withdrew its motion to revoke Degraftenreed's probation on

December 9, 1999 - between when Degraftenreed first spoke with Det. Berry

about the Borns homicide in May 1999, and when he testified at Mr. Allen's

trial in September 2000. (Id.)

        When confronted with this record, Mr. Jackson initially defended

himself by noting that Det. Berry "can't withdraw a motion" to revoke

probation (the benefit that Degraftem·eed actually received). Id. at 132. But

he quickly conceded that Det. Berry could certainly go talk to the ADA on

Degraftenreed's case about his cooperation in a pending homicide. Id. at

133. He further conceded that ifDegraftenreed's 1999 probation violation

was the one in which Det. Berry had intervened, it would be a Brady violation

if not disclosed to the defense before Degraftenreed testified. (Id. at 133-34.)


                                     *       *
        The evidence of the above violations regarding Manning and

Degraftenreed is of great significance for Mr. Mozee, even though they did

Applicant Stanley Mozee's Objections to Trial Court's Suppleme11tal Findings ofFact in Response to
Rema11d Order - Page 55
not testify at his trial.    For when it carne to these two witnesses, Mr.

Jackson did precisely what he swore he would "never" do and "did not" do

with respect to Zane Smith, the informant who testified against both Mr.

Mozee and Mr. Allen: (I) provide pre-testimony benefits to a witness with a

pending criminal case, (2) fail to disclose any benefits he knew about, and

(3) remain silent while the jury was given false information about the

witness's own criminal case, and any benefits that had been given or

promised.

        Thus, because Mr. Jackson clearly suppressed Brady material and

suborned false testimony at the Allen trial, this Court has all the more reason

to doubt his assumption that he did not engage in such conduct at Mr.

Mozee's trial.      Indeed, it is even more likely that Mr. Jackson gave similar

undisclosed benefits to Smith, who was a far more crucial witness for the

State - he was the only informant who claimed that Mr. Mozee had

"confessed" to him, and was faking symptoms of mental illness - than either

Manning or Degraftenreed.

        B. The Trial Prosecutor Failed to Disclose Exculpatory Evidence
           Regarding Numerous Alleged Eyewitnesses
        The substantial evidence of ADA Jackson's non-compliance with

Brady and Napue in the Mozee and Allen cases was not limited to informant

testimony.      In Applicants' 2014 writs, and at the hearing below, they

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact i11 Response to
Remand Order - Page 56
 offered substantial evidence that .Mr. Jackson also repeatedly engaged in a

pattern of such violations with respect to eyewitness testimony.

        Although each of the eyewitnesses in question reportedly identified

.Mr. Allen (if anyone), the violations were equally if not more prejudicial to

Mr. Mozee.        This is because at .Mr. Mozee's trial, ADA Jackson elicited

highly damaging hearsay testimony from Det. Berry regarding allegedly

positive identifications of.Mr. Allen by three store clerks, each of whom had

witnessed two suspects trying to use victim's stolen credit cards on the night

of the murder.       .Mr. Mozee's jury was led to believe that only these three

clerks "saw [the suspect] actually using the card[s ]," and that each one

identified .Mr. Allen. (Mozee T. T. Vol., 2, pp. 208-09). 9 The State then cited

this testimony as objective corroboration for Mr. Mozee's custodial

confession. (See Mozee T.T. Vol. 4 at 92: "He says it's he and Dennis Allen.

Lo and behold, Dennis Allen is the one using the credit cards, selling the

pager. He's been identified.") Unbeknownst to .Mr. Mozee's jury, however,

none of the store clerks ever identified .Mr. Allen in court-with one of them

recanting his alleged identification at trial, and the State electing not to call the


       9
          In his Amended Writ, Mr. Mozee also alleged that his trial counsel was ineffective for
failing to object to this hearsay testimony by Det. Betry, rather than have the State bring the
eyewitnesses to court to be examined about their alleged identifications. The prejudice from
this error is clear, since none of the store clerks in fact identified Mr. Allen at his own trial. The
district court entered its findings before this claim could be fully developed, despite earlier
indicating that it would provide the parties an opportunity to present further testimony.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 57
other two as witnesses. See Writ MOL at 54-64. Moreover, the record

developed below indicates that Mr. Jackson was personally aware that several

eyewitnesses did not identify Allen or Mozee or had made statements casting

doubt on the accuracy of their allegedly positive identifications - yet this

information was not disclosed to the defense.



                 1. Kyoung Jang

        As noted in Applicants' opening writ memorandum (see Joint MOL at

59-60, 103-04), Mr. Jackson's trial file contained substantial impeachment

information regarding the alleged identification of Mr. Allen by store clerk

Kyoung Jang. According to Det. Berry, Ms. Jang was one of the clerks who

identified Mr. Allen as the man who had tried to use the victim's stolen credit

card in July 1999. Yet ADA Jackson did not call Ms. Jang to testify at either

trial. See id.

        Yet ADA Jackson's trial file contained an undisclosed document that

appears to explain why Ms. Jang was not called as a witness: an interview of

Ms. Jang by a different detective that was conducted eight weeks before Det.

Berry secured this allegedly positive identification from her. In that report;

Ms. Jang candidly stated that she "could not recognized [sic] anyone in

relation to the attempt [sic] use of the complainant's credit card, as she had not


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact i11 Response to
Remand Order- Page 58
gotten a close look at the individual trying to use it" See id. at 59; Joint MOL,

Exh. QQ; R.R.II: 113-14 (emphasis supplied).

        At the hearing, Mr. Jackson agreed that this report was clearly

exculpatory evidence that he was obligated to disclose to defense counsel.

(R.R.II: 113-14.) Yet it was never mentioned at either trial, nor is the report

in defense counsel's file. See Joint MOL at 59-60, 113-14. Mr. Jackson had

no recollection of providing this report to either defendant. He also could not

explain why, if he did provide it, the disclosure of this report was not

mentioned in any of his detailed notes. See id at 114 ("I tried to make [the

notes] thorough but I'm not always perfect about it").

        2. Roderick May

        Roderick May (also referred to in certain portions of the record as

"Mays") was another non-testifying eyewitness. Yet neither May's initial

interview report, or any report of the photo arrays he was shown, were

provided to the defendants. May's name appears in the record for the first

time in the middle of Mr. Allen's trial, when Det. Berry stated, on

cross-examination by Mr. Oatman, that "Roderick Mays" was one of the

witnesses who reported seeing two black men trying to sell pagers near the

vicinity of the Rev. Borns' store on the night of the murder (the store's pagers

had been stolen).


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
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        Det. Berry then admit-ted he had shown May a photo lineup, but

 clain:ied he did not have the report, nor did he know where to find May:


                Q: Let's st[art] with Mays. Did you show him a photographic
                lineup?
                A: Yes, I did.
                Q: Where is he today?
                A: I have no idea.
                Q: "Have you looked for him?
                A: Today?
                Q: Well, could you find the report that says you showed it to Roderick
                Mays?
                A: I don't have that report.
                Q: You don't have it?
                A: No, I don't

(Allen TT Vol. IV: 152-153).

        The evidence presented below, however, established that (1) a copy of

the initial interview report with May was in Mr. Jackson's trial file, revealing

that he had given detailed descriptions of two black males attempting to sell

pagers near the scene that night, and (2) with good reason, Mr. Jackson

inquired, during his pretrial preparation, "Did May ever see a lineup of

defendants or anyone else? Anybody know who those two B/M' s were?"

(R.R.II: 109; Exh. 50). In additional notes, Mr. Jackson at some point

answered his own question about the results of May's photo lineup: "didn't

                                                   10
pick anyone." (Id.) (emphasis supplied).



        w In an effort to avoid the obvious implications of this file notation, particularly in light

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
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        At the hearing, Mr. Jackson agreed that ifJ'vfay had been shoWI1 photo

arrays of these defendants and asked whether either of them was one of the

black males he saw attempting to sell pagers, "and didn't pick them out," that

would be exculpatory evidence. (Id. at 110.) He would have been obligated

to reveal that information to the defense, but he has no recollection or record

of doing so. (Id) And it is clear from the questions that Mr. Oatman asked

Det. Berry at trial that he was wholly unaware of this information.

        Thus, as with numerous other witnesses, the record developed below

regarding Roderick May shows that Mr. Jackson was personally aware of

exculpatory evidence (that May had seen two suspects attempting to sell the

victim's property, but "didn't pick anyone" when shown the defendants'

photographs) that he failed to disclose. The record further indicates that- as

with Zane Smith and Lonel Hardeman - Mr. Jackson breached his duty to

correct the record when a witness (here, Det. Berry) gave false or misleading

testimony regarding that undisclosed exculpatory evidence.

                3. Other Eyewitnesses




ofDet. BetTy's testimony at trial that May was shown a photo lineup, Mr. Jackson stated at the
hearing that one of his investigators in the DA's Office had the first name "May," and said, "I
don't know if that's her or somebody- if it's Roderick Mayes." (Id. at 109.) But of course,
there would have been no reason for Mr. Jackson's own investigator to be viewing photo lineups
of suspects in this case to see if she herself could "pick anyone." And the reference in
Jackson's notes to a witness who had already described "two B/Ms" in connection with this case
corresponds directly to the infonnation in Berry's report on witness Roderick May.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 61
        Finally, Det. Berry's notes strongly suggest that there may be

additional Brady material he failed to disclose with respect to other

store-clerk witnesses. In addition to Ms. Jang, supra, three additional

witnesses viewed two men attempting to use the victim's stolen credit card:

Inson Chon, Sang Kwoon, and Sun Jung. However, none of these witnesses

testified at either trial- even though Kwoon was listed in Det. Berry's reports

as a witness who had allegedly made a positive identification of Mr. Allen,

and even though Mr. Chon (the store manager) was the one who viewed the

primary suspect most clearly and gave a detailed description to Det. Berry.

See Joint MOL at 102-107 (discussing reports in Mr. Jackson's file for

each). 11

        Mr. Jackson had no recollection as to why he did not call any of these

witnesses who may have identified Mr. Allen to testify. His practice would

be to interview any eyewitnesses himself before putting them on the stand.

(R.R.II: 104.) He agreed that if any witness indicated to him, or anyone else

working for the State, that a defendant was not the man they saw, or recanted

an earlier positive ID, that would be Brady material; he said he would disclose

it "ifl knew that, yes." (R.R.II: 104-05.) In fact, Mr. Jackson's notes indicate



        11
         Sun Jung identified another suspect - Darryl Adkins - when she viewed the array,
although this fact was brought out at Mr. Allen's trial.

Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 62
that he personally met with both Jang and Kwoon prior to trial (having put

check marks next to their names on his "Meetings" list). See Exh. 17.

        Regarding witness Chon (the store manager), he made a note to himself

to "subpoena Chon and ... put [him] on standby." However, elsewhere in

his file, as part of his pretrial preparation, he wrote himself a note asking

whether Chon had "ID['d] Defendant Allen" - and then answered his own

question, "NO." (Exh. 50.) The fact that Chon had apparently not identified

Allen - the person whom the State alleged had tried to use the Rev. Borns'

credit cards at multiple locations -was never presented to either defendant's

jury. Nor did Mr. Jackson correct or qualify the highly misleading testimony

given by Det. Berry at Mr. Mozee's trial the three store clerks Det. Berry

interviewed during his investigation into the stolen credit cards had identified

Mr. Allen.

        In sum, the substantial evidence already developed below that Mr.

Jackson personally knew about recanted identifications and/or "no-ID"

results of photographic arrays, yet failed to disclose this to the defense or

correct false and misleading testimony by Det. Berry, is still further evidence

in support of Mr. Mozee's other Brady claims that the district court failed to

consider. It is paiiicularly troubling that the court did not consider these

other violations even though its fact findings in Mr. Mozee's case were based


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 63
on nothing but the court's acceptance of Mr. Jackson's personal belief that he

did not violate Brady (i.e., by accepting his representation that he fully

complied with Brady in every case, and thus, that he must have done so here).

        C. Trial Prosecutor's Admission that He Did Not Correct
           Testimony from Informant Lonel Hardeman that He
           Personally Knew to Be False

        Last, but certainly not least, this Court should hesitate to defer to the

district court's interpretation of the record and Mr. Jackson's personal belief

in his compliance with Brady, because the court failed to consider Mr.

Jackson's concession at the hearing that he in fact violated his

well-established duty to correct false testimony given by info1mant Lonel

Hardeman at Mr. Allen's trial.

        The egregious falsity ofHardeman's testimony (disclaiming not just

any "deal" with the State, but even any desire for assistance with the

numerous felony charges pending against him) in light of his explicit letters to

the contrary is clear. That portion of the record is discussed in detail in Mr.

Allen's Objections to the court's findings (also filed on this same date). It

bears emphasizing, however, that in addition to the documentary evidence

that Hardeman repeatedly gave false testimony, ADA Jackson specifically

admitted that Hardeman lied at trial. See, e.g., R.R.I: 75-76 (Mr. Jackson

agreeing that, when he asked Hardeman, "Have I told you that we would talk


Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 64
about maybe doing something in your case when this [testimony] was over?"

and Hardeman responded, "No, sir," that Hardeman was in fact "lying.'')

Mr. Jackson then conceded that if he did not correct this testimony (which the

trial transcript shows he did not), it would be a clear Giglio violation on his

part. (Id. at 76-77.)

        Judge Hawthorne did not consider any aspect of either defendant's

false testimony claims when she summarily found Mr. Jackson "credible" in

his belief that he complied with Brady and Giglio throughout their trials -

even the portion of the record in which he admitted that he allowed testimony

from a key informant in this case that he knew to be false. The district court

thus overlooked a critical aspect of the record that goes to the heart of the trial

prosecutor's integrity and practices. As a result, this Court should exercise

caution before deferring to Judge Hawthorne's review and interpretation of

the record.




Applica11t Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
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                                    CONCLUSION

        WHEREFORE, Applic:mt respectfully requests that this Court grant

his claim for relief under art. 11.07 based upon the State's failure to disclose

material, exculpatory evidence; or, in the alternative, remand the case for

further factual development of his Brady claims and the other claims in his

Amended Writ application.



Respectfully submitted,




                                           I


Nina Morrison
(Appearing Pro Hae Vice)
INNOCENCE PROJECT, INC.
40 Worth Street, Suite 701
New York, NY 10013
Telephone: (212) 364-5340
Facsimile: (212) 364-5341


Ezekiel Tyson, Jr.
Texas Bar. No. 24034715
THE TYSON LAW FIRM
342 W. Montana Ave.
Dallas, Texas 75224
Telephone: (214) 942-9000
Facsimile: (214) 942-9001




Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 66
                                 CERTIFICATE OF SERVICE


          I hereby ce1iifythat true and correct copies of the foregoing Objections to

   Trial Court's Supplemental Findings of Fact in Response to Remand Order

   were served on the Dallas District Attorney's Office, Attn: Patricia Cummings

   and Cynthia Garza, Assistant District Attorneys, by first class mail and electronic

   mail, on this 8th day ofDecember, 2015.




Nina Morrison, Esq.
Counsel for Applicant Stanley Mozee




Applicant Stanley Mozee's Objections lo Trial Court's Supplemental Findings of Fact in Response to
Remand Order-Page 67
     CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 73.l

        Pursuant to Tex. R. App. Proc. 73.l(f), I hereby certify that the foregoing

 Objections comply with the word limitations of Rule 73.1(d), in that the

memorandum does not exceed 15,000 words, excluding those portions exempted by

the Rule. The total word count for those portions of the Memorandum covered by

Rule 73.l(d) consists of 14,891 words.




Nina Morrison, Esq.
Counsel for Applicant Stanley Mozee




Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
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