                                                                 WR-50,961-07
                                                  COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
                                                 Transmitted 3/6/2015 4:03:06 PM
                                                   Accepted 3/6/2015 4:17:38 PM
                                                                    ABEL ACOSTA
                  No. WR-50, 961-07                                         CLERK


                      IN THE                          RECEIVED
                                               COURT OF CRIMINAL APPEALS
        Court of Criminal Appeals of Texas            3/6/2015
                                                 ABEL ACOSTA, CLERK


              EX PARTE RODNEY REED,
                              Applicant,

STATE’S MOTION TO DISMISS APPLICATION FOR WRIT OF
            HABEAS CORPUS AS ABUSIVE

                     BRYAN GOERTZ
                     Criminal District Attorney
                     Bastrop County, Texas

                     MATTHEW OTTOWAY
                     Assistant Attorney General/
                     Assistant District Attorney
                     Bastrop County, Texas
                     Texas Bar No. 24047707

                     Post Office Box 12548, Capitol Station
                     Austin, Texas 78711
                     Tel.: (512) 936-1400
                     Fax: (512) 320-8132
                     Email: matthew.ottoway@texasattorney
                                   general.gov

                     Attorneys for the State
    MOTION TO DISMISS APPLICATION FOR WRIT OF HABEAS
                   CORPUS AS ABUSIVE

      Applicant Rodney Reed is a Texas inmate convicted and sentenced

to death for the abduction, rape, and murder of Stacey Stites.                     On

February 18, 2015—little more than two weeks before his then-scheduled

execution of March 5, 2015—Applicant filed his seventh (sixth

subsequent) state habeas application in the trial court. 1.SHCR-07, at

8–.1 On February 23, 2015, this Court stayed Applicant’s execution by

order issued in Applicant’s seventh state habeas proceeding. Order, No.

WR-50,961-07 (Tex. Crim. App. Feb. 23, 2015). The State asks that this

subsequent application be dismissed as abusive.2

I.    Applicant’s litigation history

      A jury found Applicant guilty of capital murder for abducting,

raping, and strangling to death Stacey Stites, and he was sentenced to




1     “SHCR-07” refers to the clerk’s record for Applicant’s seventh state habeas
proceedings. The references are preceded by volume number and followed by page
numbers.
2     To be clear, the State is not challenging the Court’s recently-issued stay order.
The State is merely requesting that, when the Court considers Applicant’s seventh
state habeas application in due course, the Court find that Applicant has not
overcome the applicable procedural barriers to merits review and that Applicant’s
present application be dismissed on procedural grounds.

                                          1
death on May 30, 1998.          1.CR.489–493.3       Applicant’s conviction was

affirmed on direct appeal by this Court on December 6, 2000, Reed v.

State, No. 73,135 (Tex. Crim. App. Dec. 6, 2000) (Reed I), and the

Supreme Court of the United States denied Applicant a writ of certiorari

later that next year, Reed v. Texas, 534 U.S. 955 (2001).

      With direct appeal pending, Applicant filed an initial application

for state habeas relief on November 15, 1999. 2.SHCR-01/02, at 2–251.4

A little more than a year later, Applicant filed a “supplemental claim.”

3.SHCR-01/02, at 391–402. On February 13, 2002, this Court denied

Applicant’s initial application on findings by the trial court sitting in

habeas and found the “supplemental claim” to be a subsequent

application and dismissed it as abusive. Ex parte Reed, Nos. 50,961-01,

50,961-02 (Tex. Crim. App. Feb. 13, 2002) (Reed II).

      Applicant turned to federal court on February 13, 2003, filing a

petition for writ of habeas corpus in the Western District of Texas, Austin

Division. Petition for a Writ of Habeas Corpus, Reed v. Thaler, No. A-02-



3     “CR” refers to the clerk’s record for Applicant’s capital murder trial. The
references are preceded by volume number and followed by page numbers.
4     “SHCR-01/02” refers to the clerk’s record for Applicant’s first and second state
habeas proceedings. The references are preceded by volume number and followed by
page numbers.

                                          2
CV-142-LY (W.D. Tex. Sept. 26, 2012). The case was stayed and placed

in abeyance on March 1, 2004, so that Applicant could exhaust certain

claims through the state system. Order, Mar. 1, 2004, Reed v. Thaler,

No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). As described in more

detail below, Applicant thereafter proceeded to file four additional state

habeas applications.

      On March 29, 2005, Applicant filed his third state habeas

application. 1.SHCR-03, at 2–343.5 On October 19, 2005, this Court

dismissed all of Applicant’s claims as abusive, with the exception of two

claims that were remanded to the trial court for factual development. Ex

parte Reed, No. WR-50961-03, 2005 WL 2659440, at *1 (Oct. 19, 2005)

(Reed III). After a live evidentiary hearing and findings from the trial

court, this Court issued an exhaustive opinion denying relief and finding

that Applicant’s gateway-innocence claim was not persuasive enough to

overcome the untimeliness of his procedurally defaulted claims. Ex parte

Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) (Reed IV).




5     “SHCR-03” refers to the clerk’s record for Applicant’s third state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.

                                      3
      With his third state habeas application pending, Applicant filed his

fourth and fifth state habeas applications on March 5, 2007, and July 16,

2008, respectively. SHCR-04, at 2–15;6 SHCR-05, at 2–89.7 Both of these

applications were dismissed as abusive by this Court in a single opinion.

Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 2009 WL 97260, at *1–

6 (Tex. Crim. App. Jan. 14, 2009) (Reed V).

      After those proceedings terminated, Applicant filed his sixth state

habeas application on April 21, 2009. SHCR-06, at 2–59.8 This, too, was

dismissed as abusive by this Court. Ex parte Reed, No. WR-50961-06,

2009 WL 1900364, at *1–2 (Tex. Crim. App. July 1, 2009) (Reed VI).

      The stay in federal district court was lifted on August 20, 2009.

Order, Aug. 20, 2009, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.

Sept. 26, 2012).      On June 12, 2012, a federal magistrate judge

recommended denial of relief, Report and Recommendation of the United



6     “SHCR-04” refers to the clerk’s record for Applicant’s fourth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
7     “SHCR-05” refers to the clerk’s record for Applicant’s fifth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
8     “SHCR-06” refers to the clerk’s record for Applicant’s sixth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.

                                       4
States Magistrate Judge, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.

Sept. 26, 2012), which the federal district judge largely adopted, and who

independently denied relief on September 26, 2012, Order on Report and

Recommendation, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept.

26, 2012).   The federal district judge also denied or overruled all of

Applicant’s post-judgment filings on February 4, 2013. Order, Feb. 4,

2013, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012).

     Applicant then appealed the denial of federal habeas relief, but the

Court of Appeals for the Fifth Circuit affirmed on January 10, 2014. Reed

v. Stephens, 739 F.3d 753 (5th Cir. 2014) (Reed VII). On March 19, 2014,

the same court also rejected Applicant’s attempts at rehearing without

the necessity of an internal poll.      On Petition for Rehearing and

Rehearing En Banc, Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014) (No.

13-70009). The Supreme Court of the United States denied Applicant’s

petition for writ of certiorari from this proceeding on November 3, 2014.

Reed v. Stephens, 135 S. Ct. 435 (2014).




                                    5
      On February 18, 2015,9 slightly more than two weeks before his

then-scheduled execution, Applicant filed his seventh state habeas

application. 1.SHCR-07, at 8–84. On February 23, 2015, this Court

stayed Applicant’s execution via an order issued in Applicant’s seventh

state habeas proceeding. Order, No. WR-50,961-07 (Tex. Crim. App. Feb.

23, 2015). Applicant’s seventh habeas application is now pending before

the Court. 10

II.   Evidence at Applicant’s trial

      Stacey Stites was a happily-engaged nineteen-year-old just

eighteen days shy of her wedding. 43.RR.81–82, 85.                   She lived in an

apartment complex with her police-officer fiancé, Jimmy Fennell, and her

mother, Carol, who lived in an apartment below Stites’s, and with whom

Stites spent her last days alive planning her upcoming nuptials.

43.RR.81; 44.RR.51.




9      Applicant originally filed his seventh application on February 13, 2015, but did
not attach any exhibits; the “original” seventh application is not in the clerk’s record,
however. On February 18, 2015, Applicant filed his “corrected” seventh application
with the exhibits. 1.SHCR-07, at 8–84; 2.SHCR-07, at 92–255; 3.SHCR-07, at 261–
437.
10     Applicant also filed a Chapter 64 motion in the trial court for additional DNA
testing and the appeal from that proceeding is also currently pending before the
Court. See generally Reed v. State, No. AP-77,054 (Tex. Crim. App.).

                                           6
     Stites worked at a HEB grocery store in Bastrop, Texas—the store

was about thirty miles from her residence in Giddings, Texas—and was

scheduled for a 3:30 a.m. shift on April 23, 1996. 43.RR.95; 44.RR.48.

When she did not show, a fellow employee became worried and eventually

called Carol around 6:30 a.m. 43.RR.96, 101–02. In turn, Carol called

Fennell, and he went to look for Stites while Carol informed authorities

about Stites’s absence from work. 44.RR.70–71.

     Before Carol knew about Stites’s disappearance, a Bastrop police

officer had, at 5:23 a.m., discovered the pickup truck Stites took to work—

Fennell’s red, compact truck—seemingly abandoned in a local high school

parking lot. 43.RR.117. Because the truck was not reported stolen, the

officer took no further action. 43.RR.118,122. Before he left, however, he

noticed a piece of a belt lying outside the truck. 43.RR.120.

     Later that day, Stites’s body was found off a rural road. 44.RR.18,

21. Texas Department of Public Safety (DPS) crime laboratory personnel

processed the scene.    44.RR.108.       They observed a partially clothed

Stites—her shirt removed, bra exposed, and missing a shoe and an

earring. 44.RR.113. Her pants were undone, the zipper broken, and her

panties were bunched at her hips.            44.RR.113–14, 122. She was



                                     7
discovered with work apparel—a nametag and a large knee brace.

44.RR.128, 151.    On the side of the road was another piece of belt.

44.RR.115.

     Because of obvious signs of rape, a DPS criminalist took vaginal

and breast swabs from Stites’s body.      44.RR.123; 45.RR.51.     On-site

chemical testing of a vaginal swab signaled the presence of semen.

44.RR.124–27.     Around 11:00 p.m. that night, microscopic analysis

showed the presence of intact sperm, which indicated recent seminal

deposit—based on scientific articles, sperm remains whole within the

vaginal cavity for usually no longer than twenty-six hours. 44.RR.131;

45.RR.15–16.

     Later forensic testing matched the belt fragments to each other,

and it appeared that the belt was torn apart, not cut, 47.RR.83–85, and

Fennell identified the belt as Stites’s, 45.RR.102. A search of the truck

by DPS criminalists yielded Stites’s missing shoe and earring, and the

remnants of a smashed, plastic drinking glass. 47.RR.44–45; 49.RR.34,

38. Additionally, the driver’s-side seatbelt was still engaged and the seat

was angled in such a way that a 6’2’’ person could properly utilize the

rearview mirror. 46.RR.101; 49.RR.43.



                                    8
      Stites’s body was autopsied the next day by Dr. Roberto Bayardo.

48.RR.111. He observed a large mark across Stites’s neck that matched

the pattern of her belt. 48.RR.119–20, 136–37. There were bruises on

Stites’s arms consistent with forcible restraint, bruises on her head

consistent with the knuckles of a fist, and bruises on her left shoulder

and abdomen consistent with an over-the-shoulder seat belt. 48.RR.115–

18.   Based on physical changes in the body, Dr. Bayardo estimated

Stites’s time of death to be 3:00 a.m., give or take four hours. 48.RR.113–

14.

      Dr. Bayardo also took vaginal swabs, in addition to oral and rectal

swabs. 48.RR.121–23. He too observed intact sperm from a vaginal

swab, which he stated indicated “quite recent[]” seminal deposit.

48.RR.121–22.    There were also injuries to Stites’s anus, including

dilation and lacerations. 48.RR.126. These were consistent with penile

penetration inflicted at or near the time of Stites’s death—or peri-

mortem. 48.RR.126–27. And, Dr. Bayardo, via microscopic analysis,

thought he saw sperm heads from a rectal swab, though he acknowledged

that chemical testing was negative for semen from this swab. 48.RR.123–

24. He noted, however, that sperm break down quicker in the rectal



                                    9
cavity than in the vaginal cavity, so the fragmented sperm further

indicated recent seminal deposit. 48.RR.125.

      Thereafter, DPS personnel conducted DNA testing on the vaginal,

rectal, and breast swabs, and the results indicated that the foreign DNA

came from a single source. 49.RR.95–113. They also “mapped” Stites’s

panties, which showed little movement after semen was deposited in her

vaginal cavity.     44.RR.190–91; 55.RR.40.         This, too, demonstrated

seminal deposit just before her murder. 55.RR.41.

      For approximately a year, law enforcement—state, county, and

municipal—searched for Stites’s killer to no avail. They interviewed

hundreds and obtained biological samples from twenty-eight males; none

matched the foreign DNA in and on Stites. 46.RR.111–12; 49.RR.114–

19. And none mentioned Applicant associating with Stites. 46.RR.112.

      Applicant became a suspect in Stites’s murder after he was arrested

for kidnapping, beating, and attempting to rape and murder another

nineteen-year-old woman, Linda Schlueter. 46.RR.122.11 Schlueter was

abducted by Applicant approximately six months after Stites’s murder,



11   The specific facts of Schlueter’s abduction, assault, and attempted rape and
murder was not revealed to the jury until the punishment phase of trial.


                                       10
near both the route Stites typically took to work and the time she

disappeared—3:00 a.m.        61.RR.10, 37–47.      Moreover, Applicant was

regularly seen in this area by Bastrop police officers in the early morning

hours, and his home was close to where both Stites’s and Schlueter’s

vehicles were abandoned. 50.RR.70–73, 80, 95–96. Further, Applicant’s

height—6’2’’—aligned with the angle of the driver’s seat. 49.RR.43.

      Given these similarities, law enforcement inquired with DPS if they

had Applicant’s DNA profile (this was pre-CODIS); they did because

Applicant had raped a mildly intellectually disabled woman, Caroline

Rivas. 46.RR.122–23.12 Applicant’s DNA profile was compared to the

foreign DNA inside and on Stites’s body and the two were consistent.

50.RR.104. Applicant was then questioned and he repeatedly denied

knowing Stites. 48.RR.82–83. Additional biological samples were taken

from Applicant pursuant to a search warrant. 48.RR.18, 86–92.

      More DNA testing was performed by DPS and a private laboratory

on the new samples from Applicant and those taken from Stites’s body.

49.RR.118–19; 50.RR.120–36, 140; 49.RR.127; 51.RR.33–34. The results




12    Again, the underlying facts of Rivas’s physical- and sexual-abuse were not
provided to the jury until the punishment phase of trial.

                                      11
were conclusive—Applicant could not be excluded as the foreign DNA

contributor but 99% of the world’s population could be, and one would

only expect to see the foreign DNA profile in one person in anywhere from

24 to 130 billion people. 49.RR.118, 122; 50.RR.144–45; 51.RR.80. But,

just to be sure, samples were taken from Applicant’s father and three of

his brothers, and they were ruled out as contributors too. 49.RR.123–25

     Applicant’s trial counsel attempted to counter this damning

evidence with a two-pronged attack—they tried to blame someone else

for the murder, and they argued that Applicant and Stites were engaged

in a clandestine but consensual, sexual relationship.

     To prove the former, Applicant’s DNA expert testified that a hair

found on Stites’s back did not match any of the samples gathered by law

enforcement, and a couple of witnesses testified that they saw a white

truck with three men in it near the area where Stites’s body was

recovered. 51.RR.107–08, 124–25; 54.RR.50–52. The latter witnesses’

testimony was significantly impeached. 51.RR.115, 119, 128–29.

     Trial counsel also suggested that Fennell was the murderer. Law

enforcement interviewed Fennell several times and collected biological

samples from him, but they never searched his apartment. 45.RR.110–



                                   12
12; 46.RR.62. Fennell was eventually cleared after law enforcement

investigated, and ruled impossible, Fennell’s ability to travel to Bastrop,

murder Stites, and return home for Carol’s phone call within the known

timeframes and without any sort of transportation. 46.RR.127.

     Further still, trial counsel cast suspicion on David Lawhon, a

Bastrop resident who murdered another woman, Mary Ann Arldt, two

weeks after Stites’s death. 46.RR.158. They called several witnesses that

testified about a connection between Stites and Lawhon, including one

who said Lawhon had confessed to killing Stites. 52.RR.29–31, 89. They

were all greatly impeached—the confession witness actually told police

someone other than Lawhon had confessed to Stites’s murder, Stites’s

good friends testified in rebuttal that Stites never dated Lawhon, and

Lawhon’s ex-wife testified that nothing unusual occurred around the

time of Stites’s murder, which was different than when Lawhon

murdered Ardlt. 52.RR.93; 54.RR.130, 138, 141–43.

     As to the secret-relationship defense, one witness testified that she

saw Stites and Applicant talking at the grocery store, and another said

Stites came by Applicant’s house looking for him. 51.RR.136; 53.RR.92.

These were not credible accounts, however, as Applicant’s family were



                                    13
frequent guests at the first witness’s bar, and the second witness initially

said “Stephanie,” not “Stacey,” was looking for Applicant, and she did not

identify Stites when shown her driver’s license photo. 51.RR.138–39;

53.RR.92–93. The jury found Applicant guilty of two counts of capital

murder. See also Reed IV, 271 S.W.3d at 702–12 (providing an extensive

recitation of the facts from Applicant’s trial).

                               ARGUMENT

I.   The standards for subsequent applications.

     A court may not consider the merits of a subsequent state habeas

application “except in exceptional circumstances.”      Ex parte Kerr, 64

S.W.3d 414, 418 (Tex. Crim. App. 2002); Tex. Code Crim. Proc. art.

11.071 § 5(a). Section 5(a)—the “abuse-of-the-writ” bar—was enacted to

hasten postconviction review and discourage piecemeal litigation. Id. at

418–19. In other words, “none of this ‘every week you file a new petition’

which is basically what happens.” Id. at 419 (citation omitted). Thus, an

applicant must file an application which “contains sufficient specific facts

establishing,” Tex. Code Crim. Proc. art. 11.071 § 5(a), one of these

“exceptional circumstances,” Ex parte Kerr, 64 S.W.3d at 418.

     First, an applicant can prove either factual or legal unavailability

of the claim. Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). This requires

                                     14
proof of unavailability during all prior state habeas applications. See Ex

parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007) (“[T]he

factual or legal basis for an applicant’s current claims must have been

unavailable as to all of his previous applications.”). Legal unavailability

occurs when a claim “was not recognized or could not have been

reasonably formulated from a final decision of the United States Supreme

Court, a court of appeals of the United States, or a court of appellate

jurisdiction of this state.” Tex. Code Crim. Proc. art. 11.071 § 5(d). In

addition, an applicant must also make a prima facie showing of facts

sufficient to invoke the new law. See Ex parte Brooks, 219 S.W.3d 396,

400 (5th Cir. 2007). This makes sense because,

     [t]o read the statute otherwise would mean that every time a
     new law is passed or precedent is set, every inmate could file
     a subsequent application for writ of habeas corpus, regardless
     of whether the newly available legal basis applied to his
     situation, and the court would have to consider the merits.
     This clearly undermines the purpose of the subsequent-writ
     provisions.

Id. at 400.      To prove factual unavailability, an applicant must

demonstrate that the factual basis of the claim “was not ascertainable

through the exercise of reasonable diligence.” Tex. Code Crim. Proc. art.

11.071 § 5(e).



                                    15
      Second, an applicant can prove that “but for a violation of the

United States Constitution no rational juror could have found the

applicant guilty beyond a reasonable doubt.” Tex. Code Crim. Proc. art.

11.071 § 5(a)(2). This requires an applicant to “make a threshold, prima

facie showing of innocence by a preponderance of the evidence.” Reed IV,

271 S.W.3d at 733 (citation omitted). Innocence in this context is not a

freestanding claim, but a procedural one “that does not provide a basis

for relief, but is tied to a showing of constitutional error at trial.” Ex parte

Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). A “claim” of this

sort is also known as a “Schlup-type claim,” id., because Section 5(a)(2)

“was enacted in response to” Schlup v. Delo, 513 U.S. 298 (1995), Reed

IV, 271 S.W.3d at 733.

      Third, an applicant can prove that, “by clear and convincing

evidence, but for a violation of the United States Constitution no rational

juror would have answered in the [S]tate’s favor one or more of special

issues.” Tex. Code Crim. Proc. art. 11.071 § 5(a)(3). Section 5(a)(3), “more

or less, [codifies] the doctrine found in Sawyer v. Whitley, 505 U.S. 333

(1992).” Ex parte Blue, 230 S.W.3d 151, 151 (Tex. Crim. App. 2007).




                                      16
II.   Applicant fails to prove entitlement to merits review of his
      claims.

      Applicant appears to raise three claims.        First, he raises a

freestanding claim of innocence under Ex parte Elizondo, 947 S.W.2d 202

(Tex. Crim. App. 1996). 1.SHCR-07, at 18, 62–68. Second, he argues that

new scientific evidence establishes his probable innocence under Article

11.073 of the Texas Code of Criminal Procedure. 1.SHCR-07, at 18, 68–

75. And third, he asserts that the State presented “false, misleading, and

scientifically invalid testimony” which, he claims, violates Ex parte

Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). 1.SHCR-07, at 18, 75–

82. Though not a claim, Applicant also asks that this Court to, in the

alternative, reconsider its prior decisions regarding Applicant’s multiple,

previous applications. 1.SHCR-07, at 18, 82–83. While Applicant briefs

the merits of these apparent claims, he fails to discuss Section 5 at all.

That is not surprising because Applicant does not make a sufficient

showing to overcome the abuse-of-the-writ bar. As a result, the Court

should dismiss Applicant’s seventh state habeas application.

      A.   Applicant fails to prove that the Court may consider
           his freestanding-innocence claim.

      A freestanding-innocence claim is also referred to as a “Herrera-

type claim” based on Herrera v. Collins, 506 U.S. 390 (1993). Ex parte

                                    17
Franklin, 72 S.W.3d at 674. “[A]n exceedingly high standard applies to

the assessment of claims of actual innocence that are not accompanied by

a claim of constitutional error at trial.” Ex parte Elizondo, 947 S.W.2d at

209. Thus, an applicant “must show by clear and convincing evidence

that no reasonable juror would have convicted him in light of the new

evidence.” Id. This “is a Herculean task.” Ex parte Brown, 205 S.W.3d

538, 545 (Tex. Crim. App. 2006). And it requires that an applicant rely

upon “‘newly discovered’ or ‘newly available’” evidence in making his

freestanding claim of innocence, meaning “[h]e cannot rely upon evidence

or facts that were available at the time of his trial, plea, or post-trial

motions.” Id. Importantly, “[a] claim of actual innocence is not an open

window through which an applicant may climb in an out of the

courthouse to relitigate the same claim before different judges at

different times.” Id. 545–46.

           1.    Applicant fails to address legal or factual
                 unavailability and therefore forfeits his right to
                 rely on such exceptions.

     Initially, the Court should dismiss Applicant’s freestanding-

innocence claim because he makes no argument that it overcomes the

abuse-of-the-writ bar. The failure to adequately brief a point of error



                                    18
results in forfeiture of the issue. See Lucio v. State, 351 S.W.3d 878, 896–

97 (Tex. Crim. App. 2011).          Thus, because Applicant does not even

attempt to engage in the required showing for merits consideration of a

claim in a subsequent application, this Court should summarily dismiss

his freestanding-innocence claim.

      In any event, Applicant cannot demonstrate that he overcomes

Section 5(a)(1), the only arguably applicable exception to his

freestanding-innocence claim.13 To do this, Applicant must prove that

the factual and legal bases of his claim were unavailable and that his

Herrera-type claim is prima facie sufficient. He fails in this undertaking.

             2.    Applicant fails to prove legal unavailability.

      Applicant does not prove that the legal basis of his freestanding-

innocence claim was unavailable when he filed his initial application or

any of his subsequent applications. This Court’s recognition of the legal

standard for freestanding-innocence claims predates Applicant’s initial


13     Section 5(a)(2) does not apply to Applicant’s freestanding-innocence claim
because Applicant does not raise “a claim of constitutional error at trial.” Ex parte
Elizondo, 947 S.W.2d at 209. In other words, a freestanding-innocence claim cannot
use Section 5(a)(2) as a gateway to merits adjudication because a freestanding-
innocence claim, a Herrera-type claim, requires a showing of innocence without
constitutional error at trial while a Schlup-type claim is always accompanied with an
alleged trial-level constitutional error. See Ex parte Franklin, 72 S.W.3d at 675.
       Section 5(a)(3) does not apply to Applicant’s freestanding-innocence claim
because Applicant alleges actual innocence of his offense, not his sentence.

                                         19
state habeas application. Compare Ex parte Elizondo, 947 S.W.2d at 205

(opinion issued December 18, 1996), with 1.SHCR-01, at 2–242 (initial

application filed November 11, 1999). Indeed, Applicant has repeatedly

asserted a freestanding claim of innocence, including in his initial

application. See, e.g., 1.SHCR-01, at 17–18. Thus, Applicant cannot

overcome the abuse-of-the-writ bar for his freestanding-innocence claim

based on legal unavailability.

           3.    Applicant fails to prove factual unavailability.

     Applicant also does not prove that the facts he now asserts were

unavailable at the time he filed his initial application or any thereafter.

Applicant appears to rely on the following “new” evidence of “innocence:”

opinions from three forensic pathologists, Drs. Spitz, Baden, and Riddick;

“recantations” from two of the State’s witnesses at Applicant’s trial, Dr.

Bayardo and Meghan Clement; and “observations” from two former

coworkers of Sites, Alicia Slater and Lee Roy Ybarra. See 1.SHCR-07, at

62–68. None of this evidence was unavailable when Applicant filed his

prior applications.

     First, Applicant has had the assistance of a forensic pathologist for

at least a decade. 1.SHCR-03, at 110–13 (Dr. Riddick’s prior affidavit



                                    20
appended to Applicant’s third state habeas application). And Applicant

filed three more state habeas applications after first presenting Dr.

Riddick’s opinion to this Court. Clearly, Applicant has had at his disposal

a forensic pathologist for the last four of his prior state habeas

applications. Thus, Applicant surely cannot suggest that the factual

basis of his freestanding-innocence claim was unavailable to him—he

needed only to have asked his decade-long-retained forensic pathologist,

Dr. Riddick. Applicant, in failing to provide this information earlier

despite having access to expert assistance, fails to prove reasonable

diligence. Cf. Ex parte Smith, 444 S.W.3d 661, 670 (Tex. Crim. App. 2014)

(“A ten-and-a-half year delay is extraordinary.”).

     Second, there has been no recantation from Dr. Bayardo. Indeed,

two federal courts have agreed that Dr. Bayardo’s affidavit differs only

slightly from his trial testimony. See Reed VII, 739 F.3d at 770 (“Dr.

Bayardo’s purported ‘disavowal’ of his trial testimony does not contradict

much of his original testimony.”); Order on Report and Recommendation

13, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012) (“Even

if the court were to overlook [Applicant’s] delay, it would conclude that

Bayardo’s affidavit has little probative value.”). And, as for Clement, her



                                    21
email to Applicant states that her “testimony speaks for itself and can be

argued on its own merit.             Therefore, I won’t be sending the

affidavit/declaration.” 2.SHCR-07, at 101. Thus, these “recantations”

cannot be the basis of supposedly unavailable facts.

      But, further, it is clear that even if these “recantations” were truly

reflective of about-face changes, Applicant still fails to prove diligence in

obtaining them. Applicant first offered Dr. Bayardo’s affidavit to the

federal   district   court   after   receiving   an   adverse   report   and

recommendation from the federal magistrate judge. Order on Report and

Recommendation 12, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.

Sept. 26, 2012).        The federal district judge found Applicant’s

“extraordinary delay” in presenting Dr. Bayardo’s affidavit to be

inexcusable, id. at 12–13, a determination upheld on appeal, Reed VII,

739 F.3d 769 n.5 (“[Applicant] has provided no persuasive reason for

waiting well over a decade to revisit Dr. Bayardo’s testimony.”).

Similarly, the federal district judge found the email from Clement to be

untimely, Order 12–13, Feb. 4, 2013, Reed v. Thaler, No. A-02-CV-142-

LY (W.D. Tex. Sept. 26, 2012), which was again upheld on appeal, Reed

VII, 739 F.3d at 776 n.12 (“This evidence is untimely and does not lend



                                      22
[Applicant] any support beyond that already provided by the affidavits of

Dr. Bayardo and Dr. Riddick.”). While these findings of untimeliness are

not binding on this Court, they should be persuasive evidence that

Applicant is engaging in piecemeal litigation. Indeed, it appears that

Applicant simply had to ask Dr. Bayardo and Clement for their “new”

opinions, see 2.SHCR-07, at 100 (Clement emailed Applicant), and could

have done so at any time during Applicant’s six prior state habeas

applications.   The failure to prove diligence—and the affirmative

evidence demonstrating a lack thereof—means that Applicant cannot

prove unavailable facts as to Dr. Bayardo and Clement. Cf. Ex parte

Smith, 444 S.W.3d at 670.

     Third, as to the HEB employees, Applicant has provided no

evidence that they were unavailable during any of Applicant’s prior state

habeas proceedings. A witness testified at trial that she saw Applicant

talking with Stites at HEB, 51.RR.136 (testimony of Julia Estes), and

Applicant provided an affidavit in his first state habeas proceeding that

he and Stites were seen together at HEB, 1.SHCR-01, at 233 (affidavit of

Elizabeth Keehner, stating “it dawned on me that Stacy [sic] might be

the girl Rodney was holding hands with at H.E.B.”), though, these



                                   23
witnesses were discredited for a variety of reasons.         Accordingly,

Applicant knew that HEB employees might be able to shed light on his

supposedly preexisting, consensual relationship with Stites.         Yet,

Applicant has provided this Court with no evidence that he inquired with

these employees to establish reasonable diligence. In fact, Applicant has

provided no additional consensual-relationship witnesses to any court

since his initial state habeas application terminated in 2002. Hence,

Applicant has failed to demonstrate factual unavailability with respect

to Slater and Ybarra. Cf. Ex parte Smith, 444 S.W.3d at 670.

     At bottom, Applicant has had the means—attorneys, investigators,

and experts—to obtain and present the “new” evidence he now provides,

long ago. Waiting until the last minute—about two weeks from his then-

existing execution date—is not reasonable diligence.       Consequently,

Applicant has failed to prove that the factual basis for his freestanding-

innocence claim was unavailable.

           4.     Applicant fails to make a prima facie case of
                  actual innocence.

     Moreover, Applicant has also failed to make a prima facie case of

freestanding innocence even if he could prove factual or legal

unavailability.   In order to prove a freestanding-innocence claim,


                                   24
Applicant has to rely on newly available facts. See Ex parte Brown, 205

S.W.3d at 545. This requires evidence that “could not be known to [an

applicant] even with the exercise of due diligence.” Id. Thus, much of

the above unavailability discussion dovetails with the newly-available

requirement of a freestanding-innocence claim.

      None of Applicant’s forensic pathologists indicate that their

opinions could not have been formed at the time of Applicant’s trial.

Accordingly, these opinions are not newly available. See Ex parte Briggs,

187 S.W.3d 458, 465 (Tex. Crim. App. 2005) (rejecting a claim of actual

innocence based, in part, on trial court’s findings that the medical

evidence supporting an applicant’s claim had been available at the time

of trial).   Moreover, as to Dr. Bayardo and Clement, they have not

recanted their trial testimony which, in turn, means that there is nothing

new about their recent statements. And, as to the HEB employees, there

was testimony at Applicant’s trial that he and Stites were seen together

at HEB but this was obviously rejected by the jury. Even accepting as

credible all of Applicant’s “new” evidence, he has failed to prove that it is

newly available for purposes of a freestanding-innocence claim, meaning

he fails to make out a prima facie case of actual innocence. For this



                                     25
reason, and because Applicant fails to prove factual and legal

unavailability, the freestanding-innocence claim should be dismissed as

failing to overcome the abuse-of-the-writ bar.

     B.    Applicant fails to prove that he qualifies to proceed
           under Article 11.073.

     Article 11.073 provides an applicant with a potential remedy

regarding “certain scientific evidence.” Tex. Code Crim. Proc. art. 11.073.

To take advantage of the statute, an applicant must prove that there is

“relevant scientific evidence” that “was not available to be offered” at the

applicant’s trial or “contradicts scientific evidence relied on by the [S]tate

at trial.” Tex. Code Crim. Proc. art. 11.073(a)(1)–(2).

      This requires an applicant to file a state habeas application

“containing specific facts indicating that” the “relevant scientific evidence

is currently available and was not available at the time of the

[applicant’s] trial because the evidence was not ascertainable through the

exercise of reasonable diligence” and that the “scientific evidence” would

be admissible under the Texas Rules of Evidence. Tex. Code Crim. Proc.

art. 11.073(b)(1)(A)–(B). If those prerequisites are met, an applicant

must show that, by a preponderance of the evidence, “had the scientific




                                     26
evidence been presented at trial . . . the [applicant] would not have been

convicted.” Tex. Code Crim. Proc. art. 11.073(b)(2).

     For purposes of the abuse-of-the-writ bar, an applicant can prove

unavailability “if the claim or issue is based on relevant scientific

evidence that was not ascertainable through the exercise of reasonable

diligence by the [applicant] on or before the date on which the original

application or a previously considered application, as applicable, was

filed.” Tex. Code Crim. Proc. art. 11.073(c). In considering whether the

“relevant scientific evidence” was not ascertainable, a “court shall

consider whether the scientific knowledge or method on which the

relevant scientific evidence is based has changed since . . . the date on

which the original application or a previously considered application, as

applicable, was filed, for a determination made with respect to a

subsequent application.” Tex. Code Crim. Proc. art. 11.073(d)(1)–(2).

           1.    Applicant does not prove that there were facts
                 unavailable to him.

     Applicant does not even attempt to prove that there were facts

unavailable for purposes of this claim. Thus, the Court should find this

argument to be waived. See Lucio, 351 S.W.3d at 896–97. And, as

discussed above, so far as his “facts” are based on forensic pathology, he


                                   27
has had the assistance of a forensic pathologist for over a decade. See

supra Argument(II)(A)(2). He cannot demonstrate factual unavailability

and it should not be a basis for overcoming the abuse-of-the-writ-bar.

             2.     Applicant fails to make a prima facie showing of a
                    change in scientific knowledge or method.

      Applicant tries to partake of Article 11.073 by claiming that Dr.

Bayardo has changed his opinion.                1.SHCR-07, at 69–73.            But, as

explained above, Dr. Bayardo has not actually changed his opinion from

the time of trial. Thus, even assuming that an expert’s change of heart

is sufficient to invoke Article 11.073, see Ex parte Robbins, No. WR-

73,484-02, 2014 WL 6751684, at *10 (Tex. Crim. App. Nov. 26, 2014),

reh’g filed (Tex. Crim. App. Dec. 18, 2014),14 Dr. Bayardo’s affidavit is

insufficient to fall within Article 11.073’s ambit.                 A point-by-point

analysis of Dr. Bayardo’s affidavit shows why.

      At trial, Dr. Bayardo estimated that Stites, “[b]ased on changes that

occur after death in the body,” died “around 3:00 a.m. on April 23, 1996.”

48.RR.113–14.        Dr. Bayardo made clear that time of death was an

educated guess because there is “not a precise scientific way of making a


14     The State, here, adopts the arguments of the State’s motion for rehearing in
Ex parte Robbins, in that an expert’s re-evaluation of their prior opinion is insufficient
to prove a change in scientific knowledge or method.

                                           28
determination of the time of death, we can only make estimates.”

48.RR.113. In his affidavit, Dr. Bayardo says his “estimate of time of

death, again, was only an estimate.” 2.SHCR-07, at 96. He also states

that “pinpointing a precise time of exactly when Ms. Stites died would

have been, and remains, impossible.” 2.SHCR-07, at 96. There is nothing

different in Dr. Bayardo’s affidavit than what he testified to, and it

certainly does not demonstrate a reversal of opinion.

     Dr. Bayardo testified that the discovery of morphologically intact

spermatozoa—heads with attached tails—indicated “that this semen was

placed in the vagina quite recently.”        48.RR.121–22.     On cross-

examination, trial counsel noted that Dr. Bayardo had found “there were

few spermatozoa [with] heads and tails” and clarified with Dr. Bayardo

that this meant that “intercourse happened a day or two before the

exam.” 48.RR.144. Dr. Bayardo now states, “in my professional opinion,

the spermatozoa I found in Ms. Stites’s vaginal cavity could have been

deposited days before her death.” 2.SHCR-07, at 96 (emphasis added).

Again, Dr. Bayardo’s testimony is in accord with his affidavit and, again,

this is not a reversal of opinion.




                                     29
     In Dr. Bayardo’s testimony at trial, he stated that chemical testing

of the rectal swabs from Stites’s body “was reported as negative,”

although “[t]here was a little bit of a reaction but not enough to call it

positive.” 48.RR.123. Upon microscopic examination of slides created

from the rectal swabs, Dr. Bayardo saw “several spermatozoa heads, but

because they were no longer attached to the tails, or the tails were not

visible, it was reported as negative.”      48.RR.124.    And, on cross-

examination, Dr. Bayardo agreed that “other biological material” could

look like sperm heads and said that “it’s not possible to be a hundred

percent sure that there is sperm there.” 48.RR.146. In his affidavit, Dr.

Bayardo affirmed that he testified in the manner above and reiterated

that he “reported the smear[-slides] as negative on the autopsy report.”

1.SHCR-07, at 97. Dr. Bayardo’s affidavit on this topic is no different

than his trial testimony and, thus, Applicant fails to prove withdrawal of

his opinion.

     As to sexual-organ injuries, Dr. Bayardo testified that he saw no

injuries to Stites’s vagina but he saw dilation and lacerations of Stites’s

anus that he concluded were peri-mortem. 48.RR.125–27.          On cross-

examination, Dr. Bayardo was asked if he contended that “the presence



                                    30
of sperm . . . is a result of non-consensual sexual intercourse.” 48.RR.145.

Dr. Bayardo answered “[n]o,” and clarified that the peri-mortem injuries

combined with the presence of sperm caused him to state that the sexual

intercourse was non-consensual.        48.RR.145.     Dr. Bayardo, in his

affidavit, notes that there were no injuries to “Stites’s vaginal cavity” and

reaffirms that “Stites was sexually assaulted in her anal cavity.”

2.SHCR-07, at 97–98. Once again, Dr. Bayardo’s affidavit is not an

about-face of his trial testimony.

     Because Dr. Bayardo has not changed his opinion, Applicant cannot

show any change sufficient to invoke the process of Article 11.073. And,

to the extent that Applicant asks this Court to consider Drs. Spitz and

Baden’s affidavits under Article 11.073, see 1.SHCR-07, at 73–74, those

affidavits are entirely devoid of assertions that there has been any

change in the “scientific knowledge or method” of forensic pathology as it

applies to the issues Applicant now raises. As such, Applicant has failed

to make a prima facie showing that there has been a change in the

“scientific knowledge or method” since his last (or any) state habeas

application. Tex. Code Crim. Proc. art. 11.073(c). His claim must be

dismissed as a result.



                                     31
     C.    Applicant fails to prove that his false-evidence claims
           can be considered on the merits.

     This Court has recognized a due-process violation when the State

unknowingly uses false evidence. See, e.g., Ex parte Ghahremani, 332

S.W.3d 470, 478 (Tex. Crim. App. 2011). An applicant must first prove

that the evidence he or she challenges is false. Id. at 477. If an applicant

makes this showing, the applicant must then prove that, by a

preponderance of the evidence, “the error contributed to his conviction or

punishment.” Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App.

2010).

           1.    Applicant does not discuss any exception to the
                 abuse-of-the-writ bar and, therefore, he should
                 not be permitted to rely on them.

     At the outset, the Court should dismiss Applicant’s unknowing-use-

of-false-evidence claim because he does not provide any briefing on

overcoming the abuse-of-the-writ bar. Inadequately briefed points of

error results are considered forfeited. See Lucio, 351 S.W.3d at 896–97.

Thus, because Applicant fails to engage in the required showing for

merits consideration of a claim in a subsequent application, this Court

should summarily dismiss his unknowing-use-of-false-evidence claim.




                                    32
           2.    Applicant fails to prove legal unavailability.

     As stated above, in order to prove legal unavailability, an applicant

must prove that the legal rule “was not recognized or could not have been

reasonably formulated from a final decision of the United States Supreme

Court, a court of appeals of the United States, or a court of appellate

jurisdiction of this state.”   Tex. Code Crim. Proc. art. 11.071 § 5(d).

Applicant fails to make this showing.

     On December 9, 2009, this Court handed down Ex parte Chabot,

which held that the State’s unknowing use of false evidence could violate

the Due Process Clause. 300 S.W.3d at 769. This case was handed down

after the last of Applicant’s prior subsequent applications was dismissed.

Nonetheless, Ex parte Chabot’s legal foundation was decided before

Applicant filed his fourth, fifth, and sixth state habeas applications.

     In Ex parte Chabot, this Court explicitly held that “[b]ased on our

decision in [Ex parte] Carmona, [185 S.W.3d 492 (Tex. Crim. App. 2006),]

we agree with the convicting court that the circumstances of the present

case merit a finding that the applicant’s due-process rights were violated,

notwithstanding the absence of the State’s knowledge of the perjured

testimony at the time of trial.” 300 S.W.3d at 772 (emphasis added). By



                                    33
relying upon Ex parte Carmona, which was decided on March 1, 2006, to

find a due-process violation in Ex parte Chabot, the Court was necessarily

“agree[ing]” that the legal basis of an unknowing-use-of-false-evidence

claim “could . . . have been reasonably formulated from a final decision

of . . . a court of appellate jurisdiction of this state.” Tex. Code Crim. Proc.

art. 11.071 § 5(d); but see Ex parte Chavez, 371 S.W.3d 200, 206–07 (Tex.

Crim. App. 2012) (holding that Ex parte Chabot was a new legal basis).

      Moreover, holdings from the United States Court of Appeals for the

Second Circuit prove that the unknowing-use-of-false-testimony claim

could “have been reasonably formulated from a final decision of . . . a

court of appeals of the United States.” Tex. Crim. Proc. art. 11.071 § 5(d).

For example, in Ortega v. Duncan, the Second Circuit granted federal

habeas relief when the inmate proved that “eyewitness” testimony

presented at his trial was false. 333 F.3d 102, 104 (2d Cir. 2003). It

summarized the law as follows:

             We have held that a showing of perjury at trial does not
      in itself establish a violation of due process warranting habeas
      relief. Instead, when false testimony is provided by a
      government witness without the prosecution’s knowledge, due
      process is violated only “if the testimony was material and ‘the
      court [is left] with a firm belief that but for the perjured
      testimony, the defendant would most likely not have been
      convicted.’”


                                      34
Id. at 108 (alteration in original) (footnotes omitted) (quoting United

States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)). This standard is

practically indistinguishable from Ex parte Chabot. In Ex parte Chabot,

it did not matter whether prosecutors knew the falsity of the evidence,

just like in Ortega. And in Ex parte Chabot, the Court adopted a “more

likely than not” standard, virtually identical to the “most likely” standard

used in Ortega. It is beyond clear that the legal basis of Ex parte Chabot

could have been formulated by “a court of appeals of the United States”

at least as early as June 17, 2003, and most likely well before that date,

which means it could have been formulated, at the very least, before

Applicant’s third, fourth, fifth, and sixth state habeas applications. But

see Ex parte Chavez, 371 S.W.3d at 206–07. Thus, Applicant cannot rely

on an unknowing-use-of-false-evidence claim as an unavailable legal

basis.

           3.    Applicant fails to prove factual unavailability.

     The same analysis for purposes of Applicant’s freestanding-

innocence claim applies here—none of Applicant’s “new” “facts” were out

of his reach had he simply used reasonable diligence.            See supra

Argument II(A)(3).    In short, Applicant has had the assistance of a



                                    35
forensic pathologist for over a decade and his latest forensic-pathology-

related affidavits do not indicate that they are based on recent advances

in medical science. See supra Argument II(A)(3). Applicant, therefore,

cannot rely upon factual unavailability to overcome the abuse-of-the writ

bar.

            4.    Applicant does not prove gateway innocence or
                  innocence of his death sentence nor does he make
                  a prima facie case of unknowing use of false
                  evidence.15

       This Court has previously considered and extensively analyzed the

bulk of Applicant’s evidence, or the same category of evidence, in

rejecting his Schlup-type claims throughout his multiple state habeas

applications. For the most part, then, the “law of the case” doctrine

applies. See State v. Swearingen, 424 S.W.3d 32, 35–36 (Tex. Crim. App.

2014) (describing the law-of-the-case doctrine). Here, because “the facts

and legal issues are virtually identical” to Applicant’s prior state habeas

applications, the present decision “should be controlled by [this Court’s]

previous resolution[s].” Id. at 36. Nonetheless, the State will address all

of Applicant’s contentions.


15     Applicant’s unknowing-use-of-false-evidence claim is largely supported by
evidence that Applicant believes proves his innocence. Thus, the State addresses
these two issues—gateway innocence and prima facie showing—together.

                                      36
      As to the proper-timing inference to be drawn from morphologically

intact sperm, 1.SHCR-07, at 76–79, Applicant previously argued this

point to the Court and provided it with studies showing that

morphologically intact sperm can remain in a vaginal cavity for up to ten

days, calling the State’s evidence on this topic “patently false.” Reed IV,

271 S.W.3d at 745. This Court held that “even if we assume that Blakley

[sic] and Dr. Bayardo underestimated the length of time that sperm will

remain intact, we conclude that, given the other evidence in this case,

[Applicant] has failed to meet his burden.” Id. at 750. The decision today

should be no different than it was six years ago.

      Indeed, Applicant provides the Court with more of the same type of

evidence—sperm can possibly last longer than 24 to 26 hours in the

vaginal cavity.16 But Applicant’s description of the trial testimony is

myopic. When Blakely testified, she stated that intact sperm within




16    In federal court, Applicant attached medical literature to his habeas petition
containing the following statements: “The longest time recorded for spermatozoa is
120 hours and for those with tails the record is 26 hours” and “[n]on-motile
spermatozoa are found usually for seven to 12 hours after coitus; in exceptional
instances, such sperm have been found for 18 to 24 hours.” Second Amend. Pet. Ex.
36, at 136, ECF No. 137-7; Second Amend. Pet. Ex. 37, at 514, ECF No. 137-7
(emphasis added). Unsurprisingly, Applicant does not append these studies, which
demonstrate probability of finding intact sperm instead of possibility, to his current
application.

                                         37
Stites’s vaginal cavity indicated “recent” deposit. 45.RR.13–14. When

asked about the deposit timeframe, Blakely stated she had “published

documentation that says that 26 hours is about the outside length of time

that tails will remain on a sperm head inside the vaginal tract of the

female.”   45.RR.16.     Trial counsel questioned Blakely about the

“published documentation” by “Mr. Willot and Allard” and she conceded

that “components of semen” could be found up to 120 hours within the

vaginal cavity. 45.RR.16–17. On recall, Blakely also conceded that she

had found studies “where sperm was found in a body after 16 days.”

55.RR.35–36.

     Clement testified that, based on her experience, she did not recall

“finding intact sperm more than . . . 20 to 24 hours . . . from the time of

the sexual assault [to] the time the collection was made.” 51.RR.56. This

is entirely consistent with her email—“My testimony did not address the

length of time sperm can last in the body based on literature or opinions

but rather, my experience in observation of intact sperm on rape kit items

based on the length of time from an alleged incident to the time of kit

collection.” 2.SHCR-07, at 100. Indeed, Clement’s email “clarification”




                                    38
is, practically, the same as her trial testimony, which is most likely why

she stated, “the testimony speaks for itself.” 2.SHCR-07, at 101.

      Further, Dr. Bayardo testified that intact sperm meant “quite

recent[]” deposit, saying that deposit could have been two days before the

autopsy. 48.RR.121–22, 144. Considering all of the trial evidence, the

possibility that sperm could remain morphologically intact longer than

26 hours was before the jury and they still found Applicant guilty (most

likely because Applicant’s evidence of a consensual relationship was

weak—and has always been weak—so there was no reason why

Applicant’s sperm should have been anywhere in Stites’s body at any

time). Applicant fails to make a showing that his intactness-of-sperm

evidence proves gateway innocence or a prima facie case of falsity.17

      As to anal injuries, 1.SHCR-07, at 79–80, Applicant takes issue

with Dr. Bayardo’s testimony that anal dilation occurs “very late in the

stages of body decomposition, and that usually occurs 4 or 5 days.”

1.SHCR-07, at 79 (quoting 48.RR.142).               This, too, was previously


17     Also, Applicant necessarily cannot make out a prima facie case of harm for his
unknowing-use-of-false-evidence claim. That is because the standard for such a claim
is “more likely than not” test, see Ex parte Chabot, 300 S.W.3d at 772, which is the
same “more likely than not” standard utilized in the Schlup-type claim already
rejected by this Court concerning the timing inferences to be drawn from
morphologically intact sperm, see Reed IV, 271 S.W.3d at 733.

                                         39
addressed by the Court when Applicant claimed that, after rigor mortis

passes, “dilation of the anus [becomes] easier, whether by finger, swab,

or another object.” Reed IV, 271 S.W.3d at 743. It rejected Applicant’s

contention, holding that “opinions that there is no evidence that Stacey’s

anus was dilated and that it cannot be concluded with any degree of

scientific certainty that Stacey’s anus was lacerated merely presents

differing opinions that a jury could reject.” Id. at 748. Moreover, beyond

medical evidence, there was “[c]ompelling, independent circumstantial

evidence show[ing] that [Applicant] forced Stacey to have vaginal

intercourse.” Id. at 748–49. Additional evidence presenting nothing

more than what this Court has already seen should be met with the same

response—dismissal.

      Additionally, Applicant’s current evidence does not actually provide

a timeframe in which one would expect to see anal dilation—he only

provides evidence that medical examiners may mistake anal dilation as

evidence of penetration. See 2.SHCR-07, at 106, 143, 187. The possibility

that Dr. Bayardo misinterpreted anal dilation as penile penetration is

not affirmative evidence of anything, let alone gateway innocence or

falsity.   And, in any event, there was “[c]ompelling, independent



                                    40
circumstantial evidence show[ing] that [Applicant] forced Stacey to have

vaginal intercourse.” Reed IV, 271 S.W.3d at 748–49. Again, Applicant

fails to prove a prima facie case of false evidence or gateway innocence.18

      Finally, Applicant tries to claim that the punishment-phase

testimony of Royce Smithey was false. 1.SHCR-07, at 80–82. Smithey,

the chief investigator for the Special Prosecution Unit, testified that,

based on his experience, a hypothetical person with Applicant’s past

would “present a threat or a danger to other” general population inmates.

63.RR.64–66. On cross-examination, Smithey admitted that his answer

to the hypothetical was not that Applicant “could not comport his

behavior to the institution.” 63.RR.68–69. He further admitted that

violent individuals have been sent to Texas prisons and then not

committed additional acts of violence. 63.RR.69, 74.

      Applicant tries to pigeonhole Smithey’s testimony into future-

dangerousness predictions made by psychologists and then call it false.

See Coble v. State, 330 S.W.3d 253, 270–80 (Tex. Crim. App. 2010). But

cases like Coble did not demonstrate such evidence was false, it was just


18     Again, Applicant also fails to prove prima facie harm from the supposedly false
evidence of anal injuries because the substance of the alleged falsity has already been
rejected by this Court using the same test—“more likely than not.” See supra Note
17.

                                          41
not admissible under the Texas Rules of Evidence. Id. at 279–80. And,

Smithey’s testimony was not a scientific prediction of future behavior,

but a reasonable opinion that someone with Applicant’s violent past could

be dangerous to other general population inmates. Thus, Applicant does

not make a prima facie case of falsity.

     In any event, the punishment case against Applicant was

overwhelming. In addition to the abduction, rape, and murder of Stites,

Applicant emotionally, physically, and sexually abused numerous other

women. First was Connie York, a nineteen-year-old who had come home

late one evening after swimming with friends. 57.RR.34–35. Applicant

grabbed York from behind and told her “don’t scream or I’ll hurt you.”

57.RR.35–36. When York did not listen, Applicant repeatedly struck her,

dragged her to her bedroom, and raped her multiple times. 57.RR.37–42.

     Next was A.W., a twelve-year-old girl, who was home alone, having

fallen asleep on a couch after watching TV. 58.RR.36–42. A.W. awoke

when Applicant began pushing her face into the couch and blindfolded

and gagged her. 58.RR.42–43. Applicant repeatedly hit A.W. in the head,

called vulgar names, and orally, vaginally, and anally raped her.

58.RR.43–49. When A.W. accidentally bit Applicant’s penis during forced



                                    42
oral copulation, Applicant returned to vaginally raping A.W., grabbed her

head, and repeatedly bit her face. 58.RR.47.

     Then came Lucy Eipper, the mother of two of Applicant’s children.

59.RR.13–14, 19–20 Throughout their on-and-off relationship, Applicant

physically abused Eipper, including while she was pregnant, and raped

her “all the time,” including once in front of their two children. 59.RR.14–

17, 21, 25–32. Applicant rarely paid child support, he never sent his

children presents, and eventually his parental rights were terminated.

59.RR.37–38; SX.155, at 3.

     Afterwards, Applicant began “dating” Caroline Rivas, a mildly

intellectually disabled woman. 60.RR.39–41. Rivas’s caseworker noticed

bruises on Rivas’s body and, when asked about them, Rivas admitted that

Applicant would hurt her if she would not have sex with him. 60.RR.41,

61. Later, Rivas’s caseworker noticed that Rivas was walking oddly and

sat down gingerly. 60.RR.43. Rivas admitted that Applicant had, the

prior evening, hit her, called her vulgar names, and anally raped her.

60.RR.44, 63–65.

     Shortly thereafter, and about six months before Stites’s murder,

Applicant raped Vivian Harbottle underneath a train trestle as she was



                                    43
walking home. 59.RR.87–92. When she pleaded for her life for the sake

of her children, Applicant laughed at her. 59.RR.94.

     Finally, and about six months after Stites’s murder, Applicant

convinced nineteen-year-old Linda Schlueter to give him a ride home at

about 3:30 a.m. 61.RR.10, 37–47. Applicant led her to a remote area and

then attacked her. 61.RR.47–58. After a prolonged struggle, Schlueter

asked Applicant what he wanted from her and Applicant responded, “I

want a blow job.” 61.RR.60. When Schlueter told Applicant that “you

will have to kill me before you get anything,” Applicant stated “I guess

I’ll have to kill you then.” 61.RR.60. Before Schlueter could be raped and

murdered, a car drove by and Applicant fled. 61.RR.62–64.

     In addition, Applicant was found guilty of felony theft, SX.127, he

admitted to using illegal drugs, SX.155, at 3, and he sold crack cocaine

on multiple occasions, 61.RR.86–95. Applicant also behaved poorly while

incarcerated—he did not follow jail rules, he fought with other inmates,

and he threatened a guard. 65.RR.169.

     Finally, a psychological evaluation of Applicant stated what is

obvious from his crimes—Applicant was superficially socially facile,

angry, resentful, impulsive, and violent.     65.RR.157–58.    He had a



                                   44
personality disorder, likely Antisocial or Histrionic.        65.RR.159–61.

Accordingly, even if Smithey’s testimony was false, which it was not,

Applicant does not make a prima facie case that it affected his sentence

whatsoever or that he is actually innocent of his death sentence. This

claim should therefore be dismissed.

            5.    Applicant’s evidence unrelated to a particular
                  claim does not prove gateway innocence.

      If Applicant desires to have all of his evidence considered for

purposes of a Schlup-type claim tied to his unknowing-use-of-false-

evidence claims, though he does not specifically request it, he still fails to

prove gateway innocence.

      As mentioned above, the vast majority of the evidence now

presented by Applicant has already been considered by the Court, either

specifically or in like kind. Challenges to collection of evidence and

possible cross-contamination of DNA, 1.SHCR-07, at 24, have already

been rejected by this Court, Reed IV, 271 S.W.3d at 750. Evidence that

Fennell was deceptive, jealous, and violent, 1.SHCR-07, at 27–35, and

purportedly had accomplices, 1.SHCR-07, at 35–37, has been rejected as

well by this Court, Reed VI, 2009 WL 1900364, at *1–2; Reed V, 2009 WL

97260, at *1–5; Reed IV, 271 S.W.3d at 747. Further, evidence of a


                                     45
clandestine, consensual relationship between Applicant and Stites,

1.SHCR-07, at 38–41,19 has also been rejected by this Court, Reed IV, 271

S.W.3d at 748–50. And so has evidence regarding the timing inference

to be drawn from intact sperm, 1.SHCR-07, at 41–42, 55, the evidence of

anal injuries, 1.SHCR-07, at 42–43, 56–58, the presence of sperm in

Stites’s rectum, 1.SHCR-07, at 43, and whether there was saliva on

Stites’s breasts, 1.SHCR-07, at 44, been rejected by the Court too, Reed

IV, 271 S.W.3d at 748–50. Applicant’s evidence simply reiterating these

already-rejected challenges does nothing to undermine the Courts prior

determinations.

      Applicant now relies on time-of-death estimates from Drs. Spitz,

Baden, and Riddick, to argue that the State’s timing theory was off.

1.SHCR-07, at 47–58. But this, too, is simply more of the same. Dr.


19     Applicant claims that his assertion of a consensual-relationship has been
“consistent.” 1.SHCR-07, at 38. This blatantly ignores that he denied knowing Stites
when questioned by law enforcement. 48.RR.82–83. And it also ignores that
Applicant had never, under oath, provided details of his “consensual” relationship
with Stites until he filed his affidavit with his Chapter 64 motion. Thus, there was
nothing with which Applicant’s almost twenty-year-delayed affidavit could be
compared to in order to determine consistency. Moreover, Applicant references
several individuals in his latter-day affidavit in an attempt to bolster its credibility,
but this Court has already found that these individuals lack credibility. See Reed IV,
271 S.W.3d at 735–37, 746 (Kay Westmoreland and Chris Aldridge). This obviously
undermines Applicant’s own credibility and so does the significantly belated nature
of the affidavit. Id. at 750 (finding witnesses lacking in credibility because of their
late disclosure).

                                           46
Riddick, in Applicant’s third state habeas application, asserted that Dr.

Bayardo’s time-of-death estimate was scientifically unreliable because

certain measurements were not taken from Stites’s body upon discovery,

including “rigor mortis, post mortem lividity, and body temperature,” and

“whether that lividity was blanchable.” 1.SHCR-03, at 111. Because of

this, “it was too late for accurate assessments” of such conditions “to

produce a reliable determination of time of death.” 1.SHCR-03, at 111.

     Now, Drs. Spitz and Baden argue that they can make an accurate

time-of-death estimate, 2.SHCR-07, at 104–06, 141–44, but they fail to

address Dr. Riddick’s—Reed’s own, longtime expert’s—prior assertions

that no accurate time-of-death estimate could ever be made, 2.SHCR-03,

at 111–12. And Dr. Riddick has not backed away from this opinion

either—“[c]urrently in forensic practice, there is no scientific means of

determining [time of death] with precision.” 2.SHCR-07, at 182. Indeed,

Dr. Spitz seems to agree with this proposition as well, though he

mentions it not in his affidavit—“[i]n conclusion, none of the methods

used in establishing the time of death are totally reliable and

mathematically precise. Dogmatic and pinpoint accuracy in this matter

is clearly not achievable.” Spitz and Fisher’s Medicolegal Investigation



                                   47
of Death 127, (Werner U. Spitz & Daniel J. Spitz eds., 4th ed. 2004).20

Ultimately, Applicant has “merely present[ed] differing opinion that a

jury could reject,” Reed IV, 271 S.W.3d at 748, and this does not prove

gateway innocence, or even suggest it.

      Moreover, Applicant’s new timing theory contradicts his other

attempts to dispute the State’s theory of the case. In his first state

habeas application, he disputed the 3:00 a.m. time-of-death estimate

because an individual, Robert Curtis, saw a “pickup matching in

description to the vehicle driven by Ms. Stites on the morning of her

disappearance at around 2:50 to 3:00 AM,” with two people in it.

1.SHCR-01, at 8.       And, in his third application, Applicant relied on

“[e]yewitness information from Martha Barnett that she had seen Stacy

and Fennell the morning that Stacey was murdered,” specifically

between 4:45 to 5:30 a.m. thereby attempting to undermine the 3:00 a.m.

time-of-death estimate. Reed IV, 271 S.W.3d at 716–17, 720; 1.SHCR-03,

at 28 (“Several hours after the time that the State’s experts say Ms. Stites




20    Dr. Baden is a contributor to this treatise as well. Spitz and Fisher’s
Medicolegal Investigation of Death vii, (Werner U. Spitz & Daniel J. Spitz eds., 4th
ed. 2004).

                                        48
had died, Martha Barnett saw Fennell with Ms. Stites on the morning of

the murder.”).

        Although Applicant does not ask this Court to consider his prior

evidence, which he used in an attempt to overturn his conviction, the

Court should consider both the “old and new,” and the Court should also

reaffirm its earlier finding:

        [W]e note that what separates this case from the majority of
        gateway-innocence cases is the complete lack of a cohesive
        theory of innocence. [Applicant’s] claim of innocence is
        seriously disjointed and fragmented—he presents numerous
        alterative but critically incomplete theories. By focusing on a
        romantic relationship between himself and Stacey as well as
        pointing to several alternative suspects—Fennell, Lawhon,
        and some unknown dark-skinned man—the new evidence
        before us fails to tell a complete, rational exculpatory
        narrative that exonerates [Applicant].

Reed IV, 271 S.W.3d at 746. In this sense, Applicant’s attack on the time-

of-death estimate, now contradicting his own prior evidence, is more of

the same scattershot approach and it undermines his gateway-innocence

case.

        Further, Applicant’s new theory of “innocence” requires the Court

to conveniently accept Fennell’s testimony that he was alone with Stites

after about 8:00 p.m. on April 23, 1996, but reject all of his other

testimony. This, too, is inconsistent with Applicant’s prior evidence. As


                                      49
mentioned above, Applicant alleged that Stites was possibly seen at 2:50

to 3:00 a.m. by Robert Curtis, 1.SHCR-01, at 8, or seen by Barnett

between 4:45 to 5:30 a.m, Reed IV, 271 S.W.3d at 716–17, 720.          In

addition, Applicant, in his third state habeas application, claimed that

Jennifer and Brenda Prater spotted Stites in the early morning of her

murder, between 1:00 and 3:00 a.m (which is also inconsistent with

Applicant’s current time-of-death estimate). Id. at 741–42. Thus, if the

Court is to engage in selective credibility determinations, like Applicant

requests, it is just as easy for the Court to believe that Stites was not

with Fennell in the early morning of her murder, which means that the

new time-of-death estimate does not inculpate Fennell. But this still

leaves the Court with the same facts which doom Applicant’s gateway-

innocence case—if there is no credible evidence of a consensual

relationship, and there is none, then Applicant’s sperm and DNA should

not be on and in Stites physically- and sexually-abused body at any time.

     Ultimately, Applicant’s attempt to cherry-pick facts that now

support his latest theory of “innocence” should not be tolerated, and his

omission of prior, contradictory evidence, which he proffered in an

attempt to overturn his conviction, should be considered and held against



                                   50
him as undermining his “new” time-of-death gateway-innocence case,

which he clearly fails to prove with reliable evidence.

     Besides the “new” evidence from forensic pathologists, Applicant

relies on two former HEB employees—Slater and Ybarra—who state they

knew of the “secret,” romantic relationship between Applicant and Stites.

2.SHCR-07, at 235–37, 241–42. This Court should find these affiants as

lacking credibility.

     Slater, a then-high school student and part-time HEB employee,

asserts that Stites confided in her that, while the two were having lunch,

she was cheating on her fiancé with a “black guy named Rodney and that

she didn’t know what her fiancé would do if he found out.” 2.SHCR-07,

at 236. That is patently unbelievable. If Stites was truly afraid that

Fennell would find out about her supposed affair with Applicant, why

would she tell a teenaged high school student and part-time co-worker

about the affair?

     Moreover, Slater admits that she talked to the Bastrop Police in

connection with Stites’s murder but failed to mention the secret-affair

information and admits that she did not “remember telling anyone about

the information that Stacey shared with me.” 2.SHCR-07, at 236. She



                                    51
also admits that, in 2003, she was talking to a friend about Stites’s

murder but did “not tell her anything about what I knew.” 2.SHCR-07,

at 236. Instead, Slater admits that the first time she approached anyone

was when she read a Facebook post about Applicant’s then-upcoming

execution date. She claims to have called the Bastrop District Attorney’s

Office but does not “recall leaving a message.”     2.SHCR-07, at 237.

Instead of follow-up with law enforcement, Slater sought out those

aligned with Applicant. 2.SHCR-07, at 237. Slater’s ridiculous tale, her

admitted lack of forthrightness, her alignment with Applicant’s defense

team, and her nearly two-decades-long delay amply prove that she is not

worthy of belief. See Reed IV, 271 S.W.3d at 750–51 (finding delay in

coming forward as undermining reliability).

     Ybarra, another former HEB employee, claims to have seen Stites

talking with a “young black man” at HEB and that these interactions

would put her “in a good mood.” 2.SHCR-07, at 241. Ybarra then claims

to have known that Stites was seeing “this same black man” while

engaged to a “police officer” but he does not explain how he knew this.

2.SHCR-07, at 241. Further, he asserts that Stites would “become a




                                   52
nervous wreck” when her fiancé visited the HEB. 2.SHCR-07, at 241.

Ybarra’s tale is also unworthy of belief.

      Ybarra identifies the “young black man” as Applicant based on a

single photograph in a single newspaper article. 2.SHCR-07, at 241. This

is the same type of single-photo-identification long-condemned by the

Supreme Court as inherently unreliable. See Simmons v. United States,

390 U.S. 377, 383 (1968) (“This danger [of incorrect identification] will be

increased if the police display to the witness only the picture of a single

individual who generally resembles the person he saw, or if they show

him the pictures of several persons among which the photograph of a

single such individual recurs or is in some way emphasized.”). And

Ybarra provides no details about how he knew Stites was engaged in an

affair or had a police-officer fiancé. See Reed IV, 271 S.3d at 747 (finding

an affiant lacking in credibility because he “offer[ed] no specific facts that

have been or could be corroborated”).

      In addition, the fact that Ybarra was living in a relatively small

town and that his former employer, HEB, offered $50,000 for information

leading to the identification of Stites’s murderer, makes it all the more

unbelievable that Ybarra has not come forward in the nearly two decades



                                     53
since Stites’s murder, except, only to talk to “a television crew.” 2.SHCR-

07, at 241–42. Ybarra is also not worthy of belief. See Reed IV, 271

S.W.3d at 750–51 (finding delay in coming forward as undermining

reliability).

       Ultimately, Applicant must come forward “with reliable evidence”

to make a persuasive Schlup-type claim. Reed IV, 271 S.W.3d at 733.

This    includes   “exculpatory   scientific   evidence   [or]   trustworthy

eyewitness accounts.” Id. The only arguably “new” evidence Applicant

brings forward is his unscientific time-of-death estimates and his

untrustworthy consensual-relationship affiants. This evidence is not the

type of “reliable evidence” needed to mount an effective gateway-

innocence case and this Court should reject it and dismiss Applicant’s

seventh state habeas application.

       D.   Applicant fails to demonstrate why this Court should
            reconsider its prior opinions.

       This Court interpreted Rule 79.2(d) of the Texas Rules of Appellate

Procedure as allowing reconsideration of its past habeas dispositions

without temporal limit. See Ex parte Moreno, 245 S.W.3d 419, 427 (Tex.

Crim. App. 2008). Reconsideration is appropriate only “under the most




                                     54
extraordinary,” id., or “compelling circumstances,” id. at 428. This Court

has noted its hesitancy to exercise such authority, however:

     We should and will be extremely hesitant ever to exercise our
     authority to reconsider a decision on an initial post-conviction
     habeas corpus application, particularly after the passage of a
     substantial number of years. In almost every instance, the
     State’s legitimate interest in the repose and finality of
     convictions—even its interest in punishment as weighty and
     irrevocable as the death penalty—will be substantial indeed
     and ought not to be disturbed, even in the face of a reasonable
     and good faith argument that our disposition on original
     submission was “incorrect.”

Id. at 429. In this case, there is nothing extraordinary or compelling that

requires reconsideration.

     First, Applicant is not seeking reconsideration of only his “initial

post-conviction habeas corpus application,” but every one of his six prior

applications, all of which this Court thoroughly reviewed. Reed VI, 2009

WL 1900364, at *1–2; Reed V, 2009 WL 97260, at *1–6; Reed IV, 271

S.W.3d at 701–50.      Reconsideration after having been provided six

opportunities in state court, not to mention thorough federal-court

analysis of his claims, which found this Court’s decisions to be objectively

reasonable, should weigh even more heavily against reconsideration.

     Second, Applicant comes to this Court more than five years after it

dismissed the last of his six state habeas applications. And, as discussed


                                    55
above, all of the evidence he now relies upon could have been discovered

with reasonable diligence. See supra Argument II(A)(3), (B)(1), (C)(3).

Indeed, this Court has previously found Applicant to have engaged in

“piecemeal” litigation, Reed V, 2009 WL 97260, at *1, which should

significantly counsel against reopening any of Applicant’s prior state

habeas applications.

     Finally, Applicant has failed to prove that this Court was incorrect

in any of its prior decisions. His “new” evidence is more of the same and

none of it is any more believable than what he has previously provided.

Applicant has been provided a bevy of resources, abundant opportunity,

and ample time to attack his conviction. His lack of success is not because

this Court or the federal courts were in any way wrong, but because his

evidence is weak and because his guilt is strong.        Thus, the State

respectfully urges the Court to decline Applicant’s invitation to

reconsider its denials and dismissals of Applicant’s prior state habeas

applications and let finality have its day.




                                    56
                       PRAYER FOR RELIEF

     The State respectfully requests that the Court find that Applicant

has not met any exception to the abuse-of-the-writ bar or demonstrated

that any of his prior state habeas applications warrants reconsideration

and, therefore, the State respectfully requests dismissal of Applicant’s

seventh state habeas application.

                               Respectfully submitted,

                               BRYAN GOERTZ
                               Criminal District Attorney
                               Bastrop County, Texas

                               /s/ Matthew Ottoway
                               MATTHEW OTTOWAY
                               Assistant Criminal District Attorney/
                               Assistant Attorney General
                               Texas Bar No. 24047707

                               Post Office Box 12548, Capitol Station
                               Austin, Texas 78711
                               Tel.: (512) 936-1400
                               Fax: (512) 320-8132
                               Email: matthew.ottoway@texasattorney
                                             general.gov

                               Attorneys for the State




                                    57
                    CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the foregoing
pleading was served by placing same in the United States mail, postage
prepaid, on this the 6th day of March, 2015, addressed and electronically
sent to:

Bryce Benjet                      Mark S. Chehi
40 Worth Street, Suite 701        Robert A. Weber
New York, New York, 10013         Jason M. Liberi
bbenjet@innocenceproject.org      Nicole A. DiSalvo
                                  Andrew G. Mirsis
Andrew F. MacRae                  SKADDEN, ARPS, SLATE, MEAGHER &
LEVATINO PACE LLP                       FLOM LLP
1101 S. Capital of Texas Hwy.     One Rodney Square, P.O. Box 636
Building K, Suite 125             Wilmington, Delaware 19899
Austin, Texas 78746               mchehi@skadden.com
amacrae@levatinopace.com          robert.weber@skadden.com

                                /s/ Matthew Ottoway
                                MATTHEW OTTOWAY
                                Assistant Criminal District Attorney/
                                Assistant Attorney General




                                   58
