                                                                                     WR-62,099-05
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 4/22/2015 7:18:35 AM
                                                                       Accepted 4/22/2015 8:33:18 AM
                                                                                       ABEL ACOSTA
               IN THE 156TH JUDICIAL DISTRICT COURT                 OF                         CLERK
                          BEE COUNTY, TEXAS
                                                                       RECEIVED
                                                               COURT OF CRIMINAL APPEALS
                                        and                            4/22/2015
                                                                  ABEL ACOSTA, CLERK
            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                         IN AUSTIN, TEXAS



     Ex parte Robert Lynn Pruett,
                                              Cause No. WR-62,099-05
              Applicant




               APPLICANT’S REPLY TO STATE’S RESPONSE

I.      The 2009 NAS Report does not “specifically exclude[] talking about
        physical evidence matching through fiber analysis, such as done in this
        case.” State’s Response at 7-8.

        The statement on page 162 of the 2009 NAS Report cited by the State in its

response in no way indicates that the testimony offered by the State at Pruett’s trial

at issue in this proceeding was excluded from the report. There was no need for

the authors of the report to discuss fiber analysis matching specifically, on that

page, because that type of analysis is “analogous to the matching of shoe and tire

prints” which is discussed on a previous page. Nat’l Research Council Comm. on

Identifying Needs of Forensic Sci. Cmty., Strengthening Forensic Science in the

United States: A Path Forward 162 (Nat’l Academies Press 2009) [hereinafter

2009 NAS Report]. Specifically, the discussion of this type of evidence begins on

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page 145 of the report. Included in the list of impression evidence (of which

shoeprint and tire tracks are examples) are bite marks and markings on bullets.

2009 NAS Report at 145.

      The problems noted in the summary quoted in Pruett’s application are found

to be present in this type of evidence – i.e., there is a lack of established protocols.

2009 NAS Report at 149 (“[T]here is no consensus regarding the number of

individual characteristics needed to make a positive identification, and the

committee is not aware of any data about the variability of class or individual

characteristics or about the validity or reliability of the method. Without such

population studies, it is impossible to assess the number of characteristics that must

match in order to have any particular degree of confidence about the source of the

impression.”).

II.   This Court has not considered an application from Pruett since his
      initial application – which was filed five years before the factual basis
      for Pruett’s instant claim came into existence.

      Pruett’s initial habeas application was filed on February 10, 2004 – five

years before the NAS Report. That application was the last habeas application

filed by Pruett that this Court considered.

      In enacting both article 11.071 and article 11.073, the Legislature

differentiated between applications that are merely filed and those that are

considered. Pruett filed a subsequent habeas application in July 2014. However,



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for that application to have been considered, the Court would have had to have

found it satisfied Article 11.071, section 5. Tex. Code Crim. Proc. art. 11.071, § 5.

The Court, on December 10, 2014, held that the application filed in July did not

satisfy section 5, and according to the Court, it did not consider the application.

Order, Ex parte Pruett, No. WR-62.099-02 (Tex. Crim. App. Dec. 10, 2014).

      Because the factual basis for the claim did not exist when the last application

of Pruett’s considered by the Court was filed (i.e., his initial application filed in

2004), there is no bar to the Court’s considering the merits of the claim raised in

Pruett’s application.

                              Respectfully submitted,

                                /s/ David R. Dow
                        ____________________________
                                  David R. Dow
                            Texas Bar No. 06064900
                        University of Houston Law Center
                                 100 Law Center
                            Houston, TX 77204-6060
                              Tel. (713) 743-2171
                              Fax (713) 743-2131
                           Email ddow@central.uh.edu

                             Counsel for Robert Pruett




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                        CERTIFICATE OF SERVICE

      I hereby certify that on the 22nd day of April 2015, I served a true and
correct copy of this Application upon Melinda Fletcher, counsel for the State, via
an email to mfletcher@sputexas.org.



                                            /s/ David R. Dow
                                            _____________________________
                                            David R. Dow




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