              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                           NO. WR-78,545-02

                         EX PARTE DAVID MARK TEMPLE, Applicant

                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                              IN CAUSE NO. 1008763-A
                             TH
                 FROM THE 178 DISTRICT COURT OF HARRIS COUNTY

      R ICHARDSON, J., delivered the opinion of the Court in which M EYERS, J OHNSON,
and A LCALA, JJ. joined. Y EARY, J., filed a concurring opinion. K ELLER , P.J., and
K EASLER and H ERVEY, JJ., dissented. N EWELL, J. did not participate.

                                               OPINION

       Applicant, David Mark Temple, was convicted of the murder of his wife and was

sentenced to life in prison. The Fourteenth Court of Appeals affirmed Applicant’s

conviction,1 and this Court affirmed the judgment of the court of appeals, holding that the

evidence was legally sufficient to support Applicant’s conviction.2 Applicant filed this post-

conviction application for writ of habeas corpus pursuant to Texas Code of Criminal

Procedure Article 11.07.3 The trial court judge did not preside over the habeas proceedings.


       1
           Temple v. State, 342 S.W.3d 572 (Tex. App.–Houston [14th Dist.] 2010).
       2
           Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013).
       3
           T EX. C ODE C RIM. P ROC. art. 11.07.
                                                                          Temple Opinion — 2

Judge Larry Gist was assigned to preside over the writ hearing. Judge Gist conducted a two-

and-a-half-month writ hearing, which involved the lengthy examination of over 30 witnesses

and over 200 exhibits. He prepared Findings of Fact and Conclusions of Law addressing

each of Applicant’s claims for relief. We agree with the habeas judge’s recommendation.

Relief is granted.

A.     Background

       Applicant and his wife, Belinda Temple, met in college, married, and bought a home

in Katy, Texas, near Applicant’s parents’ house. Applicant worked as a teacher and coach

at Alief Hastings High School, and Belinda worked as a teacher at Katy High School. On

the afternoon of January 11, 1999, Belinda, who was seven months’ pregnant, was at work

when she was informed that their three-year-old son, “E.T.,” was running a fever. During

lunch, Belinda picked up E.T. from day care and brought him home. Around 12:30 that

afternoon, Applicant arrived home to watch E.T. so that Belinda could return to work for an

afternoon meeting. Between 3:30 and 3:45 p.m., Belinda arrived at Applicant’s parents’

house to pick up some soup. She then left for home. Applicant testified at his trial that, after

Belinda arrived home, he and E.T. left so Belinda could rest. According to Applicant, he

took E.T. to two different parks, then to a store to pick up some drinks and cat food.

Applicant and E.T. were seen on the store video surveillance entering the store at 4:32 p.m.

and leaving at 4:38 p.m. After Applicant made one more stop, he and E.T. returned home.

        Applicant testified that he pulled his car into the garage, left E.T. in the garage, and

went into the backyard where he noticed that the back door to the house was open and the
                                                                        Temple Opinion — 3

door’s window was broken. Applicant said that he immediately grabbed E.T., took him

across the street to the neighbors’ house, and asked them to call 911 because the house had

been broken into. Applicant and his neighbor ran back to Applicant’s house. The neighbor

stopped at the gate when confronted by Applicant’s dog, but Applicant ran into the house.

Applicant testified that he went upstairs and found Belinda’s body in the closet of the master

bathroom. She had been killed by a twelve-gauge shotgun blast to the back of the head. At

5:38 p.m., Applicant called 911. Officers began to arrive on scene. Thereafter, Applicant

was questioned by police. He was considered a suspect from the outset, in part because it

was discovered that he was having an extramarital affair; however, Applicant was not

indicted until 2005. Police had also suspected a neighbor, R.J.S., who was a high-school

student living with his parents next door to Applicant and Belinda. However, the police did

not pursue their investigation of R.J.S.

       Applicant’s trial began in October of 2007. In his opening statement, Applicant’s

defense counsel presented a time-line to the jury that he stated would show that Applicant

did not have enough time to commit the murder. The State’s theory of the case was that

Applicant was motivated to murder Belinda because he was having an affair with another

woman. Applicant’s defense counsel was aware that the State had questioned R.J.S. about

Belinda’s murder, but he was told by the prosecution that R.J.S. was not a suspect, and he

did not receive the police reports until trial. Applicant’s counsel made every attempt at that

time to develop an alternate perpetrator defense. Applicant’s defense counsel filed a motion
                                                                                 Temple Opinion — 4

for continuance based upon the State’s failure to timely disclose exculpatory evidence after

the State had rested and he had begun presenting the defense’s case. That motion was

denied. Applicant was found guilty of murder and sentenced to life in prison.

        After Applicant exhausted his direct appeals, he filed a post-conviction application

for writ of habeas corpus4 seeking relief based on (1) a claim of ineffective assistance of

counsel under Strickland v. Washington,5 (2) a claim that his due process rights were violated

under Brady v. Maryland,6 and (3) a claim of actual innocence under this Court’s opinion in

Ex parte Elizondo.7         With regard to the claim of actual innocence, the habeas judge

concluded that relief based on actual innocence is not justified.8 After reviewing the record,

we agree with the habeas judge and deny relief based upon actual innocence.9 We will next

address Applicant’s claim of Brady violations.

B.      Applicant’s Brady Claim

        Applicant asserts that the State wrongfully failed to disclose certain exculpatory

evidence and wrongfully failed to timely disclose other exculpatory evidence. In Brady v.


        4
            T EX. C ODE C RIM. P ROC. art. 11.07.
        5
            466 U.S. 668 (1984).
        6
            373 U.S. 83 (1963).
        7
            947 S.W.2d 202 (Tex. Crim. App. 1996).
       8
       Id. See also Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014); Ex Parte Holloway,
413 S.W.3d 95 (Tex. Crim. App. 2013).
        9
        See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). See also Ex parte Reyes,
474 S.W.3d 677, 681 (Tex. Crim. App. 2015) (noting that, because a declaration of actual innocence
might constitute “greater relief than merely granting a new trial,” it is appropriate to address an actual
innocence claim even though we may grant habeas relief in the form of a new trial on another ground).
                                                                              Temple Opinion — 5

Maryland, the Supreme Court held “that the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.”10 The Supreme Court has since held that the duty to disclose such evidence is

applicable even though there has been no request by the accused,11 and that the duty

encompasses impeachment evidence as well as exculpatory evidence.12 “Such evidence is

material ‘if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’”13 There are three essential

components of a Brady violation: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching; (2) the evidence must have been

suppressed by the State, either willfully or inadvertently; and (3) prejudice must have

ensued.14 In order to obtain relief based on a Brady violation, Applicant “must convince us

that ‘there is a reasonable probability’ that the result of the trial would have been different

if the suppressed [evidence] had been disclosed to the defense.” 15 Favorable evidence

includes exculpatory evidence and impeachment evidence. “Exculpatory evidence is that



       10
            373 U.S. at 87.
       11
            United States v. Agurs, 427 U.S. 97, 107 (1976).
       12
            United States v. Bagley, 473 U.S. 667, 676 (1985).
       13
            Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Bagley, 473 U.S. at 682).
       14
            Id. at 281-82.
       15
            Id. at 289 (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
                                                                          Temple Opinion — 6

which may justify, excuse, or clear the defendant from fault, and impeachment evidence is

that which disputes, disparages, denies, or contradicts other evidence.” 16

       Applicant claims that the State failed to timely produce favorable evidence to the

defense. Most of the Brady evidence about which Applicant complains was contained within

the several hundred pages of police offense reports that were not provided to defense counsel

until some time during the trial. There was a clear discrepancy between the defense counsel’s

recollection of what information he received prior to trial and the prosecutor’s recollection

of what information she gave to defense counsel prior to trial. The prosecutor maintained

that she timely gave the defense all of the Brady evidence they were entitled to get. The

prosecutor believed, as evidenced by her testimony at the writ hearing, that she was not

required to turn over favorable evidence if she did not believe it to be relevant, inconsistent,

or credible. She testified that she did not have an obligation to turn over evidence that was,

based on her assessment, “ridiculous.” She claimed that, when it came to what constituted

Brady evidence, her opinion is what mattered. The prosecutor stated, when asked, that if

information does not amount to anything, the defense is not entitled to it. However, although

the prosecutor does have the initial responsibility to assess whether evidence may be

favorable to the defense, the prosecutor is not the final arbiter of what constitutes Brady

evidence. A prosecutor who errs on the side of withholding evidence from the defense runs

the risk of violating Brady if the reviewing court ultimately decides that it should have been


       16
        Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (citing Harm v. State, 183
S.W.3d 403, 408 (Tex. Crim. App. 2006)).
                                                                              Temple Opinion — 7

turned over. The habeas judge found, and we agree, that this prosecutor’s misconception

regarding her duty under Brady was “of enormous significance.”

       There were at least five detectives who generated reports of their investigation of the

murder, and there were approximately 1400 pages of offense reports in this case. Prior to

trial, defense counsel requested copies of these reports, which he believed contained Brady

evidence—including statements by R.J.S. and his friends, who were “rumored” to have some

involvement in the murder, and evidence provided by witnesses that could have supported

an alternate suspect theory. However, defense counsel was denied access to them. At the

writ hearing, both the prosecutor and the defense counsel testified that there was a Harris

County District Attorney’s Office policy that, if a defense counsel asked for an examining

trial, the prosecution would “close” its file and not give any information over to the defense.17

And, according to defense counsel, after the prosecution’s file was closed, he was told by the

prosecution that the police investigations were thorough and had not resulted in any alternate

suspects. Defense counsel testified, and the prosecutor confirmed, that the police reports that

were given to defense counsel (some were not given at all), were not turned over until trial.

Defense counsel testified that he “requested copies of all the statements very early in the




       17
          Although the prosecutor and the defense counsel discussed by telephone on February 23,
2005 (a Wednesday), the existence of certain pieces of evidence in the prosecution’s file, and defense
counsel was informed that he could, at that time, come view that evidence, the prosecution’s file was
suddenly closed to defense counsel on that following Monday, February 28, 2005, the day defense
counsel requested the examining trial.
                                                                               Temple Opinion — 8

game, and of course [he] was told [he] wasn’t going to get any statements unless and until

somebody testified.”

       In Little v. State,18 this Court held that, if late-disclosed “evidence was turned over in

time for the defendant to use it in his defense, the defendant’s Brady claim would fail.” But,

this rule is applicable only if the defendant “received the material in time to use it effectively

at trial.”19 Defense counsel testified at the writ hearing that, had he been given this evidence

prior to trial he could have “strongly developed an alternative suspect theory and started it

from the very beginning of trial.” He claimed that “there’s no question [he] would have tried

the case differently.” Defense counsel stated that “what was disclosed to [him] was disclosed

in a fashion that was both untimely and confusing and late,” and he “did not have enough

time to utilize the information.” And, although defense counsel filed a motion for

continuance, that motion was denied. The habeas judge found that the State’s late disclosure

of favorable evidence prevented defense counsel from being able to timely investigate or

effectively use such evidence at trial.

       After a thorough review of the habeas record, including the findings of the habeas

judge and the State’s objections to such findings, we hold that the State did not properly

follow the rule of Brady requiring the timely disclosure of favorable evidence.20 It is true


       18
            991 S.W.2d 864, 866 (Tex. Crim. App. 1999).
       19
            Id. (emphasis added).
       20
           On January 1, 2014, the Legislature enacted the Michael Morton Act to ensure that
defendants, such as Applicant in this case, would receive evidence that the State had in its possession
in order to prepare a defense against it. See Michael Morton Act, 83rd Leg., R.S. ch. 49, § 3, 2013
                                                                                 Temple Opinion — 9

that the prosecutor may not have purposely or actively hidden the existence of information

uncovered by the police investigation;21 however, she was not forthcoming with what could

be viewed as Brady evidence contained within the police reports. And, although defense

counsel was able to raise at trial the defensive theory that there was an alternate perpetrator,

that effort was limited and hampered by the State’s failure to turn over to the defense the

police offense reports containing favorable evidence that would have allowed a more

effective presentation of an alternate suspect.22 We find that the method of “disclosure”

utilized by the prosecution did not satisfy the State’s duty under Brady. We hold, therefore,

that Applicant is entitled to relief under Brady v. Maryland.

C.      Ineffective Assistance of Counsel

        The habeas judge found that Applicant’s ineffective assistance of counsel claim has

not been shown to meet the requirements of Strickland v. Washington.23 This conclusion




Tex. Sess. Law Serv. 1611 (codified as T EX. C ODE C RIM. P ROC. art. 39.14); Ex parte Pruett, 458
S.W.3d 537, 542 (Tex. Crim. App. 2015). The Michael Morton Act created a general, ongoing
discovery duty of the State to disclose before, during, or after trial any evidence tending to negate the
guilt of the defendant or reduce the punishment the defendant could receive. We believe that the
Michael Morton Act was created to avoid problems exactly like those that arose in this case.
       21
           The prosecutor testified that she was willing to read information to the defense prior to trial
from the police reports, but they could not see them. “I would give them all the discovery they were
entitled to. Piece-by-piece, day-by-day, very slowly and very miserably they got what they were
entitled to have.” She said she was going by “the hard rules, . . . where you go through it piece-by-
piece, paragraph-by-paragraph.”
       22
         See Ex Parte Villegas, 415 S.W.3d 885 (Tex. Crim. App 2013); Ex parte Miles, 359 S.W.3d
647 (Tex. Crim. App. 2012) (holding that “the disclosure of all of this information to the jury could
have significantly undermined the confidence in the State’s case”).
        23
             466 U.S. 668 (1984).
                                                                           Temple Opinion — 10

appeared to be based on the findings by the habeas judge that defense counsel received

several hundred pages of offense reports to digest during trial, including portions dealing

with the investigation of R.J.S. and his friends, and that much of the difficulty defense

counsel faced was driven by a constant resistance of the trial prosecutor to reveal necessary

information. The habeas judge opined that, while substantial information was disclosed by

the prosecutor during the trial, it was “literally impossible” for defense counsel to sufficiently

investigate, verify, or dispute the evidence that was disclosed. We agree with this assessment.

       One of Applicant’s key assertions forming the basis of his claim of ineffective

assistance of counsel concerns what we agree was a critical piece of evidence—Applicant’s

father’s (Kenneth Temple’s) testimony as to the time of day that Belinda left their house for

her 15 minute drive home. Had Kenneth (a defense witness) testified consistently with his

prior statement (of which defense counsel had possession long before trial)—that Belinda

left Applicant’s parents’ house at 3:55 p.m. and drove the 15 minutes to her house—this

evidence would have supported the defensive theory that Applicant did not have time to

commit the murder, clean up afterwards, ditch the murder weapon, and still be on a store

surveillance camera with his son at 4:32 p.m. Defense counsel admitted during the habeas

hearing that he made a mistake by not refreshing Kenneth’s memory with Kenneth’s written

statement before he testified. Defense counsel testified at the writ hearing that he had no

strategic reason for failing to communicate with Kenneth regarding this point, and that his

failure to do so harmed Applicant. Nevertheless, even though defense counsel admitted that
                                                                               Temple Opinion — 11

he erred as to this piece of evidence, we find that the State’s failure to timely disclose

favorable evidence to the defense handicapped defense counsel’s overall performance and

caused him to lose focus of the importance of this critical piece of evidence.24 Therefore, to

the extent that defense counsel’s performance could even be viewed as being deficient, such

deficiency was the direct result of the State’s Brady violations. We therefore decline to grant

relief based on Applicant’s ineffective assistance claim, particularly since there is no cause

to, since we are granting relief based upon Applicant’s Brady violation claim.25

D.     Conclusion

       Relief is granted. The trial court’s judgment is set aside, and Applicant is remanded

to the custody of the Sheriff of Harris County to answer the charges in the indictment. The

trial court shall issue any necessary bench warrant within ten days after the issuance of this

Court’s mandate.




DELIVERED:                     November 23, 2016

DO NOT PUBLISH




       24
          Defense counsel testified at the writ hearing that he “was learning stuff that was vital that
[he] should have known months before trial so [he] could have properly investigated it.” He said that
he “did what [he] could at the time and during trial,” but “[t]here was too much to digest, there was
too much to investigate in the middle of trial.”
       25
          See e.g., Ex parte Saenz, 491 S.W.3d 819, 833 (Tex. Crim. App. 2016); Ex parte Allen, Nos.
AP-75580 and AP-75581, 2009 WL 282739, *9 (Tex. Crim. App. 2009) (not designated for
publication) (holding that, in light of our disposition of the case granting relief on one of the
applicant’s grounds, we did not need to address all of the applicant’s claims).
