                                                                WR-62,099-03
                                                 COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                                Transmitted 4/2/2015 1:12:45 PM
                                                  Accepted 4/2/2015 1:35:07 PM
                                                                   ABEL ACOSTA
          Cause Number WR-62,099-03                                        CLERK

                                                     RECEIVED
                                              COURT OF CRIMINAL APPEALS
                                                     4/2/2015
                   Robert Pruett                ABEL ACOSTA, CLERK

                         vs.
                 Williams Stephens,
                 Director, TDCJ, CID


State’s Response to Petition for Writ of Prohibition


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




                                               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
 Evidence from the Trial .............................. 5
 Evidence from the DNA Hearing ....................... 16
 Timeline ............................................ 17
Summary of the Argument .............................. 18
Argument ............................................. 19
 No Negligent Act Was Committed by the State ......... 19
   DNA ............................................... 19
   Incentives ........................................ 21
   Nagle ............................................. 21
 No Constitutional Violations ........................ 23
Prayer ............................................... 24
Certificate of Compliance ............................ 25
Certificate of Service ............................... 25




WR-62,099-03         State’s Response               pg. 2
                   Index of Authorities


Federal Constitution

Eighth Amendment ..................................... 24

Fourteenth Amendment ................................. 24

Federal Case Law

Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285,
    50 L. Ed. 2d 251 (1976) .......................... 25

Texas State Case Law

Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) .. 23

State v. Holloway, 329 S.W.3d 247 (Tex. App.
    –Texarkana 2010), affirmed 360 S.W.3d 480
    (Tex. Crim. App. 2012) ........................... 21

Whitaker v. State, 160 S.W.3d 5
    (Tex. Crim. App. 2004) ........................... 20




WR-62,099-03           State’s Response             pg. 3
                    Cause Number WR-62,099-03


                             Robert Pruett
                                  vs.
                 William Stephens, Director TDCJ, CID




To the Honorable Justices of the Court of Appeals:
     Respondent,      the     State     of     Texas,     respectfully

presents this response in opposition to the granting of

a Petition for Writ of Prohibition filed on behalf of

Robert Lynn Pruett. Pruett’s assertions are unsupported

and do not rise to the level of evidence needed to grant

this writ.



                     Statement of the Case

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

He seeks a writ of prohibition to halt that execution,

alleging       violations    of   the    Eighth     and     Fourteenth

Amendments. The State opposes the writ, asserting that




WR-62,099-03                State’s Response                     pg. 4
there are no constitutional violations and no evidence

to support many of Pruett’s allegations.

                          Statement of Facts

Evidence from the Trial1
      Robert Pruett, Petitioner, was incarcerated at the

Texas Department of Criminal Justice - Institutional

Division’s (hereafter TDCJ-ID) McConnell Unit on December

17, 1999, for the offense of murder. (R.R. 41:135; R.R.

43:8-9) Daniel Nagle, the victim, was employed as a

correctional officer at the TDCJ-ID’s McConnell Unit and

working     on     that     same     date.     (R.R.    41:50)      Nagle’s

assignment that date was to work alone at the desk in

Three Building. (R.R. 41:99)               Other corrections officers

saw Nagle alive and well at 3:20 and 3:25 p.m.                         (R.R.

41:263,     276)    A     few    minutes     later,    Nagle    was    found

stabbed, laying in a pool of blood and unresponsive.

(R.R. 41:113) CPR was unsuccessfully performed and Nagle

was pronounced dead at 3:55 p.m. on December 17, 1999.



1 All references in this section are to the reporter’s record of the original

trial, as filed in the direct appeal and the writ of habeas corpus filed with
this Court in cause numbers AP-74,370 and WR-62,099-01.


WR-62,099-03                    State’s Response                        pg. 5
(R.R. 42:236.)   The pathologist testified that Nagle died

from a heart attack brought on by the stab wounds and

assault. (R.R. 44:24.)

    Nagle had a reputation among offenders and officers

for sticking to the rules and expecting everyone else to

do the same. (R.R. 41:86, 155; R.R. 42:49, 143, 171, 211;

R.R. 43:16) Although there had been some problems at the

unit with corrupt officers, Nagle was not one of them and

Nagle had not reported other officers. (R.R. 41:88-97)

    Officer Latham testified that on the morning of

December 17, 1999, Pruett went to work the fields, which

was his normal assignment. (R.R. 41:135-136)    When they

returned from the fields, Pruett and one other offender

pointed out to Latham that they needed new boots. (R.R.

41:136)   Latham checked their boots and found they truly

did need to be replaced. (R.R. 41:138) He took both

offenders to the laundry room and got them new boots.

(R.R. 41:136) He then took them to the chow hall but they

were finished serving lunch and the chow hall was closed.

(R.R. 41:136) Latham got Pruett a “johnny”: a sack lunch



WR-62,099-03          State’s Response               pg. 6
with a peanut butter sandwich. (R.R. 41:136-137) Pruett

was then sent back to his own building. (R.R. 41:136)

    Officer Johnson testified that according to the rules

on the unit, there is no problem with an offender having

a johnny. However, the offenders are not allowed to take

anything, including a johnny, into the recreation yard.

(R.R. 41:274) Pruett and Nagle had a heated discussion

over Pruett’s johnny. (R.R. 41:274) Nagle told Pruett to

eat the sandwich, throw it away, or take it to his cell.

(R.R. 41:274) Pruett finally ate his sandwich and Nagle

then let him into the rec yard. (R.R. 41:287)

    On December 17, 1999, Offender Anthony Casey was in

a pod preparing to start a tattooing project. (R.R.

42:59) Pruett came into the pod and talked to another

offender   about   a   weapon.   (R.R.     42:57)     After      the

conversation   about    the   weapon,      Pruett   went   to    the

showers, opened and closed the door and then immediately

returned and told Casey not to start tattooing because

something was going to happen. (R.R. 42:57-59) Casey went




WR-62,099-03            State’s Response                        pg. 7
to the multipurpose room later and Pruett told him not

to come in. (R.R. 42:60)

    Offender Jimmy Mullican 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)

    Officer Johnson spoke to Nagle at 3:25 p.m. and then

went to take his own lunch break. (R.R. 41:276)

    Offender Harold Mitchell was in the multipurpose room

on December 17, 1999, when Pruett came in and told him

he might want to leave. (R.R. 42:241) Mitchell asked

Pruett what he was going to do and Pruett responded “Kill

someone.” (R.R. 42:241) When asked who, Pruett              said

“Nagle.” (R.R. 42:242) Mitchell tried to calm Pruett and

talk him out of hurting Nagle, but Pruett was determined.

(R.R. 42:243) Mitchell saw Pruett and Nagle start talking




WR-62,099-03          State’s Response                      pg. 8
and as he walked away he heard Nagle say “Inmate stop.

What are you doing? Stop.” (R.R. 42:244)

    Offender Johnny Barnett said that Pruett and Nagle

had been having trouble with each other all day. (R.R.

42:12) Barnett heard Nagle say “Look, I’m tearing up the

case.” and Pruett replied “It’s too late for that.” (R.R.

42:13) Barnett turned and saw Pruett and Nagle on the

floor in the bathroom. Nagle was on his back, holding his

hands up in a defensive posture. (R.R. 42:14) Pruett was

hitting Nagle in the hands, then moved down his body, and

then back up to the face and chest area. (R.R. 42:16)

Nagle got up, went to the door and fell back down. Pruett

then hit him three more times in the neck. (R.R. 42:16)

Pruett was in a rage:     he must have had a weapon because

Barnett could see all the blood. (R.R. 42:16-17)

    Offender Mullican saw Nagle laying on his back with

Pruett standing over him. (R.R. 42:209-210) Offender

James Dale Keller saw Pruett laying over Nagle in the

doorway and he saw Pruett stab Nagle three times. Nagle’s

hands were not moving at the time. (R.R. 42:153-154) Once



WR-62,099-03            State’s Response              pg. 9
Nagle   fell,   he   never   moved   again.     (R.R.   42:155)

Similarly, Offender Lewis saw Pruett on top of Nagle,

hitting down on him. (R.R. 42:175)        Nagle was not moving.

(R.R. 42:177) Lewis did not see a weapon in Pruett’s

hand, but Pruett was striking Nagle as if Pruett were

holding a weapon. (R.R. 42:176) Offender Thompson walked

into the multipurpose room of Three Building and saw

Pruett and Nagle struggling. (R.R. 41:158) Pruett’s arms

were swinging in a hitting motion and there was a lot of

blood. (R.R. 41:159) Nagle suddenly fell to the floor and

Thompson ran away. (R.R. 41:158) Pruett walked out of the

room, laid down in front of the desk and put his hands

behind his back and waited. (R.R. 41:160, 179) Nobody

came to take custody of Pruett, so Pruett got up and

left. (R.R. 41:161)

    Pruett came to offender Mitchell’s pod, very hyped

up. Pruett swung his shirt in the air and yelled, “Yeah!”

(R.R. 42:244)

    Several offenders saw Pruett in the gym wearing

bloody clothes. (R.R. 42:125, 209-210; R.R. 43:18, 24)



WR-62,099-03           State’s Response                  pg. 10
Pruett’s right hand was bleeding. (R.R. 42:127) He washed

his hands and it looked like blood was running off of

them. (R.R. 42:41, R.R. 43:25) While washing his hands,

Pruett asked offender Kirkpatrick if he had an extra

change of clothes and then told offender Kirkpatrick not

to testify against him. (R.R. 43:26)

    Within a few minutes, it was common knowledge among

the offenders on the unit that Pruett had killed Nagle.

(R.R. 42:43)

    Warden Prasifka, Capt. Crites, and Lt. Wallace were

together when offender Flaco told them he heard that an

officer was being assaulted in Three Building. (R.R.

41:113, 126) They ran to the building and found Nagle on

the floor, unresponsive. (R.R. 41:113) They sent the

alarm through the unit and attempted to rescue Nagle.

(R.R. 41:113, 114)

    The   stipulated   testimony   of     Dr.   Maximiliano   J.

Herrera was that Officer Nagle was brought into the

infirmary with no pulse, no heartbeat, and not breathing.

He was unconscious and had no visible reflexes.               Dr.



WR-62,099-03           State’s Response                  pg. 11
Herrera pronounced Nagle dead at 3:55 p.m. on December

17, 1999. (R.R. 42:236)

     Sergeant Ortiz, who responded to Three Building with

the officers named above, stayed to lock down the unit.

(R.R. 41:226-227) Once the building was secured, he was

told to find offenders Pruett and Shelton. (R.R. 41:227)

He   went   the    gym   where   there    were    about    a    hundred

offenders. (R.R. 41:228) He told them to lineup and show

their identification cards: every offender had his card

except Pruett. (R.R. 41:228) Ortiz reported back that he

had found Pruett without his identification card. (R.R.

41:229) Ortiz then got backup and a video camera and

returned to the gym to take Pruett into custody. (R.R.

41:229)     When   the   officers   entered      the    gym,    Pruett

surrendered without incident. (R.R. 41:230)

     They took Pruett to a holding cell and had medical

personnel come check on him. (R.R. 41:231) He had an

injury to his right thumb. (R.R. 41:251) Pruett told the

officers    that    he   injured    his   thumb    on     the   weight

machines. (R.R. 41:255)



WR-62,099-03              State’s Response                       pg. 12
     Offender Kirkpatrick was a Support Service Inmate

(SSI) in Three gym.        He has been lifting weights in Three

gym for over two years and has never seen Pruett work out

with weights. (R.R. 43:31) Offender Jacobs has been

lifting weights in TDCJ-ID for about eight years and has

never seen anyone injure their thumb on the machines.

(R.R. 42:129-131)

     Officer King was processing the multipurpose room

for evidence.       He saw the weapon and also found a torn

disciplinary      report    that   Officer    Nagle    had   prepared

against Pruett. (R.R. 42:274-277) Baylor reconstructed

the report out of seven pieces of paper. (R.R. 42:333)

Officer Davis reported that Pruett was joking around

during this time while he was in the holding cell. (R.R.

41:250) Pruett told the officers to “go ahead and run

that disciplinary case on me now.             Oop, I want to call

my   first     witness.     Officer   Nagle,    oop,    he’s   dead.”

Pruett then laughed. (R.R. 41:251)

     Offender Thompson told Officer Gina Dancer what he

had seen. (R.R. 41:181)        Although he did not name Pruett



WR-62,099-03               State’s Response                    pg. 13
at that time, he did tell Dancer which cell the offender

lived in and later that evening he picked Pruett out of

a photo lineup that Officer Davis showed him. (R.R.

41:191-192; R.R. 41:253-254) Mary Ann Gonzalez, a TDCJ-

ID employee who is responsible for housing assignments,

confirmed with her records that Pruett was the offender

who   lived    in    the   cell    indicated    by    Thompson.   (R.R.

41:199-200)

      Matthew Koenig, investigator for TDCJ-ID’s Office of

the   Inspector      General      (OIG)   saw   the    weapon   in   the

multipurpose room.         He described it as having a masking

tape handle, the kind of tape used in the craft shop.

(R.R. 41:212-216) The weapon 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) This weapon was capable of causing death or serious

bodily injury. (R.R. 41:220) It was a deadly weapon: it

was not designed for anything else. (R.R. 41:220, R.R.

42:276; R.R. 43:10)




WR-62,099-03                State’s Response                      pg. 14
      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)       According to her, the

blood on the sharp end of the weapon was Nagle’s. (R.R.

42:337) Baylor was unable to get a DNA profile from the

end of the weapon that had been wrapped in tape and was

therefore unable to say whose blood it was. (R.R. 42:337)

Two pairs of pants and a white towel that Baylor found

in the trash can of the gym had Nagle’s blood on them.

(R.R. 42:346-347, 350) A piece of cloth Baylor found in

the hallway had Nagle’s blood on it. (R.R. 42:347) This

cloth was a pants pocket that came from one of the pairs

of pants she recovered from the gym. (R.R. 42:351) Baylor

also examined over fifty rolls of masking tape and was

able to match the end of the masking tape wrapped around

the weapon to the end of a roll of masking tape found in

offender Phillips’ locked work station. (R.R. 42:279,

338-339)




WR-62,099-03          State’s Response                  pg. 15
Evidence from the DNA Hearing
     There was no live testimony presented at the hearing

on the Chapter 64 requests. (RR 1) The only evidence is

Defendant’s Exhibit 1 (DX1), a report from Mitotyping

Technologies.   The    report   indicates   that   Mitotyping

Technologies would have conducted the same DNA tests, in

the same manner, as the other laboratory. (DX1) There is

not, and was not, a sufficient amount and quality of DNA

to perform an analysis. (DX1) Mitotyping Technologies

would have reported the results as inconclusive, as did

the other lab. (DX1)

     There is only one allele at one locus that is above

the reporting threshold. (DX1) “It is inappropriate to

report a match based on one allege at one locus, therefore

this result is inconclusive.” (DX1) The report concludes:

     “In   summary,   while   it  can   sometimes   be
     appropriate to analyze STR data below threshold
     for the purpose of excluding individuals, it is
     my opinion that it would not be appropriate to
     do so in this case. This is due to the
     insufficient DNA in the torn paper sample
     resulting in a high degree of uncertainty in the
     peaks    observed.   Therefore,   a    meaningful
     comparison between the torn paper sample and any
     known samples cannot be performed.”


WR-62,099-03           State’s Response                pg. 16
     The record is devoid of any mention from any of the

three DNA labs that results were not achieved due to

inappropriate handling or storage of the evidence.

Timeline
     The major events now at issue in this case occurred

in the order shown below.

    December 1999           Nagle was murdered and
                            physical evidence was gathered

    June 2001               Pruett was indicted

    April 2002              Pruett was convicted

    May 2007                DPS presents first edition of
                            Best Practices Handbook

    2007/2008               “[a] process known as testing
                            for    touch     DNA   became
                            available.” (RR 1:6)

    October 2012            DPS presents first edition of
                            Physical Evidence Handbook

    June 2013 and           Pruett requests DNA testing on
    November 2013           torn pieces of disciplinary
                            report




WR-62,099-03         State’s Response                pg. 17
                  Summary of the Argument

       The State did not violate Pruett’s constitutional

rights    by   storing    evidence        in   a   manner    contrary    to

guidelines that were published five or more years after

the evidence was stored. Possible harm is only suggested

by Pruett: there is no evidence that any harm actually

occurred in this case.

       The evidence at trial included multiple eyewitnesses

who saw Pruett murder Nagle. The DNA evidence now sought

by Pruett would not exonerate him, even if it does exist

and is found. The DNA is located on a state form that is

handled by many people, including the printers, shippers,

and stockers. It is also feasible to consider that the

form    may    have    been   handled     by   multiple      inmates    who

reviewed it to see why Pruett was angry at Nagle.

       Pruett has had his due process and is now subject to

execution.      Writ     should     not    issue     to     prohibit    his

execution as ordered by the trial court.




WR-62,099-03                  State’s Response                     pg. 18
                           Argument

No Negligent Act Was Committed by the State

     DNA

     As shown in the Statement of Facts, there is a

substantial amount of evidence from various sources,

directly probative to Pruett’s guilt. More than one

witness testified to Pruett’s intent and preparation to

kill Nagle. More than one witness saw him assaulting

Nagle. More than one witness saw him bloody and hyped up

after the killing. And immediately after Nagle’s death,

Pruett laughed and joked that Nagle could no longer

pursue     the    disciplinary     action    against     him.     The

substantial      amount   of   non-DNA   evidence   supports      the

jury’s decision to find Pruett guilty. That same evidence

also supports the DNA hearing judge’s determination that

inconclusive      post-trial     DNA   results   would   not     have

probably resulted in a different verdict. See Whitaker

v. State, 160 S.W.3d 5, 9 (Tex. Crim. App. 2004) (finding

other evidence of guilt obviated the need for post-trial

DNA testing); and State v. Holloway, 329 S.W.3d 247, 253


WR-62,099-03              State’s Response                      pg. 19
(Tex. App. –Texarkana 2010), affirmed 360 S.W.3d 480

(Tex. Crim. App. 2012) (affirming the hearing court’s

determination unfavorable to the appellant and declaring

“[t]here    is   a   substantial    amount   of   other   evidence

directly probative of whether [appellant] caused the

death.”).

    Pruett       complains   that     the    State   effectively

destroyed evidence by improperly storing it, since at

least 2000. There is nothing in the record of this case

to indicate that evidence was actually lost or degraded,

only Pruett’s assertion that the DNA might have been

degraded and that it might have been stored at an improper

temperature.

    Furthermore, the guidelines for storage on which

Pruett relies were not released until 2007, the same year

the process for extracting DNA from fingerprints became

available and five years after trial. It was Pruett who

then waited four to six more years to seek to examine or

test the evidence.




WR-62,099-03             State’s Response                   pg. 20
     Further, the DNA results presented at trial in 2002

and those obtained in 2013 are exactly the same. Post-

trial testing did manage to obtain one allele at one

locus, but the lab wrote that it is inappropriate to

report a match based on this one piece of data, and

determined that the result was inconclusive. (DX1) In

fact,   the    second   post-trial   laboratory    endorsed    and

adopted     the   procedures   and    findings    of   the   other

laboratory. (DX1)


    Incentives

    The     promises    made   to    testifying   inmates     were

disclosed at trial. There are allegations and innuendo

of wrongdoing by the State, but no evidence.


    Nagle

    Pruett attempts to argue that there was some grand

conspiracy among other TDCJ workers to kill Nagle and

frame Pruett for the murder. However, he has no evidence

to support his argument.

    Pruett directs this Court to a newspaper article that

appeared in 2000. That article says unnamed officers told


WR-62,099-03             State’s Response                    pg. 21
the writer that Nagle had compiled a lengthy grievance

against TDC. The same article says Nagle’s alleged file

and supporting documents “disappeared” after his death.

The evidence at trial was that Nagle had not lodged any

complaint against any other officer. (R.R. 41:88-97)

    Pruett asserts that the later indictment of several

correctional officers was proof of Nagel’s investigation

and the motive for his murder. This is merely assumption

on Pruett’s part, it is not supported by any evidence.

    There was a wealth of non-DNA testimony presented at

trial to establish Pruett’s guilt. The post-trial DNA

results were inconclusive, just as the pre-trial DNA

results   had   been.   And   neither      established   Pruett’s

innocence. Indeed, even if it were technologically proven

that someone else’s DNA was on the report, as a result

of the other person touching the report, those results

would not exonerate Pruett. See Bell v. State, 90 S.W.3d

301, 306 (Tex. Crim. App. 2002) (“The presence of another

person's DNA at the crime scene will not, without more,

constitute      affirmative     evidence       of   appellant's



WR-62,099-03            State’s Response                   pg. 22
innocence.”). Disciplinaries are paper forms that are

touched by a multitude of people.                Additionally,         the

prepared disciplinary could have easily been handled by

other   inmates.     But    the   evidence     at     trial    was    that

multiple   people    saw    Pruett   kill      Nagle.    The    alleged

handling of the disciplinary report by another person

does not change the facts of this case.



No Constitutional Violations
     Pruett    contends      that    the      State     violated       his

constitutional rights under the Eighth and Fourteenth

Amendments     by   not    storing   the   physical      evidence       in

accordance with the standards published by the Texas

Department of Public Safety. This argument has two flaws:

(1) the two publications were issued five and ten years

after the trial of this case;              and (2)       there is no

indication of any actual harm, only the allegation that

harm might have resulted under these conditions. Eighth

Amendment violations are typically those that are found

to be repugnant by the evolving standards of decency that

mark the progress of a maturing society. See Estelle v.

WR-62,099-03               State’s Response                          pg. 23
Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290, 50 L. Ed.

2d 251 (1976). Failing to foresee technological advances

and their requirements more than five years before they

appear is not repugnant to our standards of decency.

                         Prayer

         The State prays that this Honorable Court deny

Pruett’s Writ of Prohibition.



                                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-62,099-03         State’s Response                  pg. 24
               Certificate of Compliance

    I hereby certify that, according to Microsoft Word,

this response contains a total of only 3657 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, the attorney for Pruett, via electronic mail on this

the 2nd day of April, 2015.



                                /s/ Melinda Fletcher



                                Melinda Fletcher




WR-62,099-03         State’s Response                  pg. 25
