                                                            WR-62,099-05
                                             COURT OF CRIMINAL APPEALS
                                                              AUSTIN, TEXAS
                                             Transmitted 4/21/2015 9:32:33 PM
                                               Accepted 4/22/2015 8:33:07 AM
                                                               ABEL ACOSTA
        Cause Number WR-62,099-05                                      CLERK

                                                 RECEIVED
                                          COURT OF CRIMINAL APPEALS
                                                 4/22/2015
         Ex Parte Robert Lynn Pruett        ABEL ACOSTA, CLERK




               State’s Response
  to Application for Writ of Habeas Corpus
                      and
         Motion for Stay of Execution


  On Appeal in Cause Number B-01-M015-0-PR-B
From the 156th District Court of Bee County, Texas


            CAPITAL MURDER CASE
   EXECUTION DATE SET FOR APRIL 28, 2015




                                          Melinda Fletcher
                                            SBN 18403630
                                  Special Prosecution Unit
                                             P O Box 1744
                                   Amarillo, Texas 79105
                                     Phone 806.367.9407
                                        Fax 866.923.9253
                                  mfletcher@sputexas.org
                   Table of Contents



Index of Authorities .................................. 3
Statement of the Case ................................. 4
Statement of Facts .................................... 5
Summary of the Argument ............................... 7
Argument .............................................. 8
 Pruett’s authority specifically excludes physical
 matches through fiber analysis, as was performed in
 this case. Article 11.073 of the Texas Code of
 Criminal Procedure does not operate to grant Pruett
 relief under the facts of this case. ................. 8
Prayer ............................................... 14
Certificate of Compliance ............................ 15
Certificate of Service ............................... 15




WR-62,099-05         State’s Response               pg. 2
                    Index of Authorities


Texas State Case Law

Pruett v. State, 2004 WL 3093232
    (Tex. Crim. App. 2004) ....................... 11, 12



Texas Code of Criminal Procedure

Article 11.071 ....................................... 13

Article 11.073 ................................... passim



Other Authorities

Strengthening Forensic Science in the United States:
    A Path Forward (National Academies Press
    2009) ......................................... 9, 10




WR-62,099-05           State’s Response             pg. 3
                   Cause Number WR-62,099-05


                   Ex Parte Robert Lynn Pruett




To the Honorable Judges of the Court of Criminal Appeals:


     Respondent,     the     State    of      Texas,      respectfully

presents this response in opposition to the granting of

a Motion for Stay of Execution or a Writ of Habeas Corpus

to Robert Lynn Pruett. Pruett’s authorities for relief

do not apply to the facts of this case.



                   Statement of the Case

     Pruett is scheduled to be executed on April 28, 2015.

He seeks a stay of execution and a writ of habeas corpus,

alleging   that    the   testimony     of     the   DPS    Lab   expert

regarding the match of two pieces of masking tape is

“junk” science and that it has been discredited. He

asserts that the discredited evidence, combined with

evidence of a conspiracy to kill Nagle and frame Pruett,




WR-62,099-05               State’s Response                       pg. 4
would have probably resulted in a different outcome. The

State opposes the writ and the stay of execution.



                    Statement of Facts

      On April 23, 2002, Pruett was convicted of capital

murder. The weapon found at the murder scene was a steel

rod, about seven inches long. It was sharpened to a point

on one end and the other end was wrapped in masking tape.

(R.R. 42:275-276) Offender Jimmy Mullican testified that

he was standing outside the craft shop on December 17,

1999, when offender Phillips, who was inside the craft

shop, asked him to pass some masking tape on to Pruett.

(R.R. 42:204) The tape was rolled onto the handle of a

toothbrush. (R.R. 42:205) Offender Mullican slid it under

the door of the multipurpose room. (R.R. 42:205)

      Lisa Harmen Baylor, who is employed in the Texas

Department of Public Safety crime lab in Corpus Christi,

was   responsible   for   collecting     and   processing    the

physical evidence. (R.R. 42:296) Baylor examined over

fifty rolls of masking tape and was able to match the end


WR-62,099-05          State’s Response                      pg. 5
of the masking tape wrapped around the weapon to the end

of a roll of masking tape found in offender Phillips’

locked work station in the craft room. (R.R. 42:279, 338-

339)

       The DPS lab has guidelines to be followed in order

to do a physical match comparison for things such as torn

tape.    (RR   4:307,   313)   The   DPS   guidelines   include

standards and controls in order to insure consistency and

accuracy. (RR 4:307) Baylor followed DPS’s guidelines.

(RR 4:308) She has studied using patterns as a method of

matching items that were at one time connected. (RR

4:308) She also relied on an article entitled “Fractal

Surfaces as Models of Physical Matches.” (RR 4:308)

       Baylor looked at approximately 56 rolls of tape in

this case. (RR 4:309-310) She catalogued all of the

physical characteristics of each roll. (RR 4:309) She

then compared the rolls to the tape found on the weapon.

(RR 4:309) Some rolls were quickly eliminated by gross

features, such as being too wide, too thin, or the wrong

color. (RR 4:310) Using a stereoscope, her FBI and DPS



WR-62,099-05            State’s Response                  pg. 6
training,      and   DPS’s   procedures,    Baylor   ultimately

eliminated all but one roll of tape. (RR 4:310, 316) A

senior analyst then went behind Baylor, checked her work,

and arrived at the same conclusion. (RR 4:312) The match

was accurate and precise enough that Baylor considered

it reliable. (RR 4:311)

       Baylor performed a physical comparison, or “jigsaw

match”, between the tape from a roll of masking tape and

the tape that was taken off of the weapon. (RR 4:338) She

determined that the tape from the weapon came off of a

particular roll of masking tape, which had been recovered

from offender Phillips’s work station in the craft shop.

(RR 4:279, 339)



                 Summary of the Argument

     Pruett asserts that he has an authority holding that

the physical matching of two pieces of masking tape is

“junk science”       and is unreliable.     In fact, Purett’s

authority specifically excludes talking about physical




WR-62,099-05             State’s Response                 pg. 7
matching through fiber analysis, such as was done in this

case.

    Article 11.073 does not apply to the facts of this

case, and so Pruett should be denied the relief he seeks.




                           Argument

Pruett’s authority specifically excludes physical matches
through fiber analysis, as was performed in this case.
Article 11.073 of the Texas Code of Criminal Procedure
does not operate to grant Pruett relief under the facts of
this case.


     Article 11.073 grants relief to a person when (1)

there   is     relevant   scientific   evidence   that   was    not

available to be offered at the time of trial, and (2) the

court makes the finding that if the scientific evidence

had been presented at trial, on the preponderance of the

evidence the person would not have been convicted. Tex.

Code Crim. Proc. Art. 11.073.




WR-62,099-05              State’s Response                     pg. 8
     Pruett’s writ asserts that “it is likely that Pruett

would   not    have   been    convicted   had   his   jurors   been

presented with the finding of the 2009 NAS report which

describes the ‘science’ of physical match comparisons.”

(See p. 16 of Pruett’s writ.) He also quotes from the

introduction of the National Research Council’s Committee

on   Identifying      Needs   of   Forensic   Science   Community,

Strengthening Forensic Science in the United States: A

Path Forward (National Academies Press 2009), and uses

that as his authority for this writ.

     However, Pruett does not disclose to this Court the

portion of Chapter 6 of that same book, where it talks

about Analysis of Fiber Evidence, and states:

     Another type of fiber analysis consists of
     physically matching two remnants that appear to
     be torn from one another. By comparing the shapes
     of the matching edges, and aligning any patterns
     in the cloth, it can sometimes be possible to
     associate a fragment with the garment or other
     item from which it was torn. This is a form of
     pattern matching, analogous to the matching of
     shoe and tire prints, but it will not be
     discussed further here.




WR-62,099-05              State’s Response                     pg. 9
Strengthening Forensic Science in the United States: A

Path Forward, p. 162, emphases added. 1

      Pruett’s sole authority specifically states that it

does not include the type of matching performed in this

case and of which Pruett now complains. His authority

does not proclaim the pattern matching in this case to

be “junk” science. Nor does it discredit the pattern

matching used in this case, as Pruett asserts. Because

the   report     does    not    include      the   procedure       used   in

Pruett’s case, there is no rational argument that the

introduction of this report would have probably resulted

in a different result at trial. For this reason alone,

Pruett should be denied the relief he seeks.

      As he has repeatedly done in the past, Pruett also

throws in his conspiracy theory as a ground for relief.

He does not have proof to support his theory. Further,

this Court has already considered the admissibility of

this defense and found that the trial court did not abuse



1 A free download of this full report is available at
http://www.nap.edu/catalog/12589/strengthening-forensic-science-in-the-
united-states-a-path-forward


WR-62,099-05                 State’s Response                         pg. 10
its discretion when it excluded the evidence. See Pruett

v. State, 2004 WL 3093232, at *3 (Tex. Crim. App. 2004).

This Court wrote:

    In his fourth point of error, the appellant again
    argues that the trial court denied him the
    fundamental constitutional right to present a
    meaningful defense. He specifically complains
    that the trial court erroneously excluded
    evidence “that Nagle's death may have been
    related    to    an    investigation    involving
    correctional officers smuggling contraband into
    the prison.
    Defense counsel informed the trial court outside
    the presence of the jury that he wanted to
    question Thomas J. Prasifka, the warden of the
    McConnell prison unit, about “the fact that
    there were 30 or more officers indicted for
    smuggling dope into the prison and that Officer
    Nagle may have actually ratted some of them out.”
    Defense counsel argued that this evidence was
    necessary to show that “[t]here was a motive for
    the gang members who were getting the drugs to
    kill Mr. Nagle, and there was a motive for
    corrupt guards to kill Mr. Nagle.” Defense
    counsel questioned Prasifka outside the jury's
    presence   to   determine   if  Nagle   had   any
    involvement in the investigation of the indicted
    correctional officers. Prasifka testified that
    Nagle did not act as an informant and had no
    involvement in the investigation. The trial
    court refused to permit defense counsel to
    pursue this line of questioning with Prasifka in
    front of the jury.
    Defense counsel failed to produce any evidence
    in support of his speculative theory that Nagle
    was killed in retaliation for acting as an
    informant   against  his   fellow  correctional

WR-62,099-05         State’s Response               pg. 11
     officers. As this court noted in Wiley v. State,
     “The danger of ‘confusion of the issues' and
     ‘misleading the jury’ arises when circumstantial
     evidence tends to sidetrack the jury into
     consideration    of   factual    disputes   only
     tangentially related to facts at issue in the
     current case.” Prasifka denied that Nagle had
     any involvement in the investigation. Allowing
     the appellant to explore this issue without
     further evidence and in the face of Prasifka's
     denial of a link between Nagle and the
     investigation would serve no purpose but to
     “confus[e] the issues” and “mislead[ ] the
     jury.” The trial court did not abuse its
     discretion in refusing to permit defense counsel
     to question Prasifka about this issue in front
     of the jury. Point of error four is overruled.
Id., internal footnotes omitted.

     Additionally,      Article     11.073   only     applies   to

“relevant scientific evidence” that was not available to

be   offered   by   a   convicted   person   at     the   convicted

person's trial or that contradicts scientific evidence

relied on by the state at trial. Pruett has not produced

any “relevant scientific evidence” to this Court, and so

Article 11.073 does not operate to give him any relief.

     Lastly, the authority Pruett cites was published in

2009.   Article 11.073, the statute that he relies upon,

was passed in 2013. Pruett has filed multiple writs since

those dates, in which he could have raised these issues.


WR-62,099-05             State’s Response                    pg. 12
Failing to do so, he does not now have a statutory right

to raise the issue at this very late date. See Tex. Code

Crim. Proc. Art. 11.073 (c) and (d).

      Article 11.071 provides that subsequent applications

for writs of habeas corpus may only be considered when

there is sufficient specific facts establishing that the

current claims and issues have not been and could not

have been presented previously. Tex. Code Crim. Proc.

Art. 11.071 Sec. 5(a)(1). Article 11.073 provides that

subsequent writs may only be considered if the claim or

issue is based on relevant scientific evidence that was

not    ascertainable   through    exercise   of   reasonable

diligence on or before the date on which the original

application or a previous considered application was

filed. Tex. Code Crim. Proc. Art. 11.073 (c). Pruett’s

current claim is not relevant scientific evidence, but

it could have been presented in any of the previous

applications he has filed since September 1, 2013, the

effective date of Article 11.073.




WR-62,099-05           State’s Response               pg. 13
     The current claim is not timely, is not covered by

Article 11.073, and it has no supporting authority.




                         Prayer

     Because there is no new evidence, no finding that

the old evidence was unreliable, and no legal avenue for

relief, the State prays that this Honorable Court deny

Pruett’s Motion for Stay of Execution and his Writ of

Habeas Corpus.



                               Respectfully Submitted,

                               /s/ Melinda Fletcher

                               Melinda Fletcher
                               Appellate Attorney
                               SBN 18403630

                               Special Prosecution Unit
                               P O Box 1744
                               Amarillo, Texas 79105

                               Phone 806.367.9407
                               Fax   866.923.9253
                               mfletcher@sputexas.org




WR-62,099-05         State’s Response                 pg. 14
               Certificate of Compliance

    I hereby certify that, according to Microsoft Word,

this response contains a total of only 2139 words. The

length of this document is in compliance with the Texas

Rules of Appellate Procedure.



                                /s/ Melinda Fletcher



                                Melinda Fletcher



                 Certificate of Service

     I hereby certify that a true and correct copy of the

foregoing Brief for the State was served on David Dow and

Jeff Newberry, the attorneys for Pruett, and Assistant

Attorney General Jay Clendenin via electronic mail on

this the 22nd day of April, 2015.



                                /s/ Melinda Fletcher



                                Melinda Fletcher



WR-62,099-05         State’s Response                  pg. 15
