                                                                                                                      ^.s^a.
                            SCHNEIDER & McKINNEY, P.C.
                                             ATTORNEYS AT LAW
                                             440 Louisiana, Suite 800
                                              Houston, Texas 77002
                                                 (713) 951-9994
                                           Telecopier: (713) 224-6008

Stanley G. Schneider* ?                                                 « Board Certified Criminal Law- Texas Board ofLegal Specialization
W. Troy McKinneyef 9                                                    SBoard Certified Criminal Appellate Law - Texas Board ofLegal Specialization
Thomas D. Moran                                                         t BoardCertified DWIDefense - NationalCollegefor DUI Defense




                                              September 2, 2015

         Via Certified Mail                                                                                  RECEIVED IN
         Return Receipt Requested                                                               COURT OF CRIMINALAPPEALS
         No. 7014 2120 0002 7340 3712
                                                                                                         SEP 04 201S
         Honorable Abel Acosta, Clerk
         Texas Court of Criminal Appeals                                                           Abel Acosta Clerk
         P.O. Box 12308
         Austin, Texas 78701

                   Re:    Ex parte David Mark Temple
                          No. WR-78,545-02
                          Trial Court No. 1008763-A

         Dear Mr. Acosta:

                 As a courtesy to you, enclosed please find 10 copies ofApplicant's Request That The
         Trial Court Enter Amended Findings ofFact and Conclusion ofLaw which were filed in the
         trial court on August 28, 2015. As always, your cooperation and assistance is appreciated.


                                                            Sincerely,



                                                            Stanley G. Schneider
                                      CAUSE NO. 1008763-A


EX PARTE                                           §     IN THE DISTRICT COURT
                                                   §
                                                   §     HARRIS COUNTY, TEXAS
                                                   §
DAVID MARK TEMPLE                                  §     178TH DISTRICT COURT

            APPLICANT'S REQUESTS THAT THE COURT ENTER
         AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

       This Court entered Findings ofFact and Conclusions ofLawonJuly 6,2015, without

the benefit of the record from the habeas hearing that lasted 26 days and included 292

exhibits that totaled over 5000 pages. Prior to the entry of this Court's Findings, the State

and Applicant responded to questions propounded by the Court without the benefit of the

record. Applicant has reviewed the Court's factual findings and identified portions of the

record that provide the actual factual basis for them. Applicant requests that this Court

amend its Findings of Fact and Conclusions of Law to reflect the record.

       Attached hereto for the convenience ofthe Court isa suggested amended Findings of

Fact and Conclusions ofLaw that is annotated with citations toclerk's record, the reporter's

record and the habeas record including testimony and exhibits. The annotations and

commentary are bold and bracketed. The commentary is limited to correct a fact that is not

accurate for example only 15 witnesses testified before the 1999 grandjury andnot30 as set

out inthe findings.                                                               RECEIVED IM
                                                                           COURT OF CRIMINAL APPEAL!

                              33IAH3S                                           SEP 0 h 2015
                      .O^SQDJVN[WI«p
                                              A9           .                 Abel Acosta, Clerk

                      •"'Xzl 'X LN0G3 v:>» •'" '
                        . Ma3i5'in-iaistr
                           "'3INVG Si*w-
       Further, Applicant has attached a disc that contains a PDF file that is hyperlinked to

the record so that the Court can facilitate review. The disc also contains the findings inword

format as well as a document with directions as to how to use the hyperlinked documents.

       Applicant requests that the Court adopt the amended findings and file them with the

Harris County District Clerk and order that the amended findings and the accompanying disc
forwarded to the Court of Criminal Appeals.

      Wherefore premises considered, Applicant prays that this Court enter the amended

Findings of Fact and Conclusions of Law.

                                                  SCHNEIDER & McKINNEY, P.C.




                                                 STANLEY G. SCHNEIDER
                                                 TJB.C.No. 17790500
                                                 440 Louisiana
                                                 Suite 800
                                                 Houston, Texas 77002
                                                 OFFICE: 713-951-9994
                                                 FAX: 713-224-6008
                                                 EMAIL: stans3112@aol.com



                                                 ATTORNEY FOR APPLICANT
                             CERTIFICATE OF SERVICE


       This is to certify that a true and correct copy ofthe attached and foregoing document
has been served on the Harris County District Attorney's Office by delivering same to 1201
Franklin, Houston, Texas 77002, on this ^° day ofAugust, 2015.




                                                 STANLEY G. SCHNEIDER
                                   INDEX


1.   Annotated Temple Findings (Citations Only)

2.   Annotated Temple Findings (Citations with Additional Support)

3.   CD with Annotated Findings (PDF with linked sources and sources file)
Annotated Temple Findings (Citations Only)
                                          No. 1008763-A

                             IN THE 178™ DISTRICT COURT OF

                                  HARRIS COUNTY, TEXAS

                                            EX PARTE


                                   DAVID MARK TEMPLE

                                  FINDINGS OF FACT AND

                                  COUCLUSIONS OF LAW



INTRODUCTION; The defendant was convicted by a jury of the murder of his wife, Belinda

Temple, and sentenced to serve life in the Department of Corrections. The Defendant appealed

and the conviction wasaffirmed by the 14th Court of Appeals. Temple v. State, 342 S.W.3rd 572

(2010); The Defendant appealed that decision to the Texas Court of Criminal Appealswhich also

affirmed his conviction and sentence. Temple v. State, 390 S.W.3d 341 (2013).


       The defendant then subsequently filed this application for writ of habeas corpus. The

defendant has advanced the following claims for relief:


       1. The State suppressed evidence favorable to the Defense in violation of Kyles v.

           Whitley, 514 U.S. 419 (1995) and Brady v. Maryland, 373U.S. 83 (1963).

       2. The State suppressed evidence that would have impeached the trial testimony of

           Riley Joe Sanders and Detectives Schmidt and Leitner in violation of United States v.

           Bagley, 473 U.S. 667 (1985).

       3. The Trial Court failed to disclose Grand Jury testimony favorable to the Defendant.
4. The Defendant received ineffective representation from his trial counsel for failure

    to use information from the Defendant's father regarding the time available to the

    Defendant to commit the offense.


5. The Defendant received ineffective representation from his trial counsel for failure

    to get a continuance during trial.

6. The Trial Court deprived the Defendant of the right to investigate exculpatory

    evidence regarding an alternative suspect.

7. The Defendant is entitled to a new trial based on newly discovered evidence.

8. The Defendant is actually innocent.


    Many of these claims were raised in one fashion or another during the direct

appeals of this case. The Court of Appeals decision involved 61 pages and virtually all of

them were devoted to discussions of the facts of this cause.


   The opinion of the Court of Criminal Appeals with much smaller print was on 23

pages and virtually the entire opinion dealt with intensive factual analysis. Those two

opinions highlight the critical nature of the facts of thiscase. The testimony is incredibly

complex and intertwined.


   The investigation of this murder involved over 400 single spaced investigator's

reports. Over 30 witnesses appeared before the Grand Jury in the following months but

no indictment was returned. [WR32, DX-94-112, "Grand Jury Subpoenas"; WR32, DX-

92,"Grand Jury List of Witnesses"]. 5 years later the trial prosecutor took responsibility

of the case and she had the Defendant arrested. [CR1, P.3, "Complaint"]. Then 2 years
later, the Defendant was indicted by a Grand Jury which apparently heard no witnesses.

[CRl, P.17, "2/28/2005 Indictment"]. The trial lasted for several weeks with the jury

finding the Defendant was guilty beyond a reasonable doubt. The trial testimony was

circumstantial and very fact specific, which lends some credibility to the current Defense

claim that critical exculpatory evidence was not disclosed.


         The lead Prosecutor at trial was Kelly Siegler and the lead Defense Counsel was

Dick DeGuerin.



         One of the major grounds on direct appeal dealt with a claim that the trial

prosecutor had engaged in misconduct to such a degree that it denied the Defendant a

fair trial.   The claim was rejected by the Appellate Court, holding: "During the

emotionally charged four week trial, the prosecutor occasionally exceeded proper

questioning and argument when attacking the credibility of appellant and his family and

also apparently disobeyed or ignored a few of the trial court's rulings.       While we

certainly condemn such tactics, in light of the whole record, we cannot conclude that

these errors were so prejudicial, or so inflamed the jury, that appellant was deprived of

his substantial rights or a fair trial."


        The Court of Criminal Appeals held that the circumstantial evidence was

sufficient to support the conviction. But specifically, the Court held; "Appellant argues

that the evidence showing that Riley Joe Sanders, III had motive, opportunity and access

to a 12-gauge shotgun should have received more weight in the Court of Appeals

analysis. The pertinent information about Sanders was presented to the jury, including
 his activities on the day of the murder and his use of shotguns. Additionally, Sanders

 himself testified. Appellant had the opportunity to cross-examine him, and the jury was

able to assess his credibility. Furthermore, the jury also heard testimony that Sanders

was repeatedly questioned and that the law enforcement officers were satisfied by his

responses. It is the province of the jury to assess the credibility and demeanor of the

witness. We are not the fact finders, and neither was the court of appeals. Further, it is

not the State's burden to exclude every conceivable alternative to a defendant's guilt.

Therefore, we hold that the evidence was sufficient to support Appellant's conviction

for murder. The jury was rationally justified in finding Appellant guilty beyond a

reasonable doubt."



    It is thus apparent how critical the Defendant's current claims are. In the 2 and V2

month hearing conducted by this habeas Court, some things were absolutely clear. The

lead prosecutor and the Defendant's lead attorney had a personal and contentious

relationship and a professional battle of the highest degree. Both were famous and

neither could stand losing to the other. Of enormous significance was the prosecutor's

testimony at the habeas hearing that apparently favorable evidence did not need to be

disclosed ifthe State did not believe it was true. [WR7, P.249-50,255-57].

   The Prosecutor also testified that although a large number of investigators were

involved, she only elected to call a small number because she did not want the defense

lawyer to have access to their offense reports. [WR8, P.97-101; WR31, DX-89 "Siegler

Subpoena List"]. At the time of this trial, the State was only obligated to provide

offense reports after a law enforcement officer had testified. [WR11, P.26, L.23-25
Holtke (WR30, DX-29) Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt

(WR30, DX-33); WR12, P.15, L.16-20; WR11, P.84].


    The Prosecutor indicated that some exculpatory evidence was tendered to the

defense in the middle of the trial. This gave the defense attorney little time to digest

much less investigate that evidence.     On one occasion, the defense did ask for a

continuance for this purpose but the request was denied by the trial judge.


    The hearing conducted in this Court involved the lengthy examination of over 30

witnesses and over 200 exhibits [WRl, 14-33], many of which were extensive and

complex. Both the State and Defendant were permitted to tender proposed factual

findings and arguments, and based on the testimony and exhibits, the Court hereby

makes the following findings of facts and conclusions of law with regard to the

Defendant's claims:



               FINDINGS OF FACT - INEFFECTIVE TRIAL REPRESENTATION


    The Defendant now claims that his trial counsel, Dick DeGuerin was legally

ineffective to the extent that he was deprived of appropriate representation. The Court

hereby finds as facts:


1. Defense Counsel did not use Charles Kenneth Temple's written statement timeline.

2. Defense Counsel did file a Motion For Continuance when additional evidence was

    disclosed during trial bythe Prosecutor. That Motion was denied by the Trial Judge.

    Defense Counsel did not urge another Continuance.
 3. On direct appeal, the Appellate Court found that Trial Counsel waived any Brady

    claim based on the untimely motion for continuance and Counsel's failure to timely
    object at trial.


4. Trial Counsel received over 300 pages of offense reports [Holtke (WR30, DX-29)

    Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt (WR30, DX-33)] to

    digest during trial, including portions dealing with the investigation of Sanders and

    his friends but made no objection regarding the large number of things that needed

    to be investigated. [WR13, P.216, L.23-25; WR11, P.29-30; TR25, P.5-14].

                CONCLUSIONS OF LAW- INEFFECTIVE REPRESENTATION


       Strickland v. Washington, 466 U.S. 668 (1984) sets out the standards that apply

to claims of ineffective representation. See also Smith v. State, 286 S.W.3d 333 (Tex.

Crim. App. 2009); Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011).            The

defendant is not entitled to errorless counsel but rather to objectively reasonable

representation.



      To be entitled to prevail on a claim of ineffective representation, the defendant

must show that (1) counsel's representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the defense. The second

test must be sufficient to show that there was a probability sufficient to undermine

confidence in the trial outcome to the degree that but for counsel's deficient

performance, the result of the proceedings would have been different. Hernandez v.

State, 726 S.W.3d 53 (Tex. Crim. App. 1986).
                Trial counsel's performance was not perfect but much of the difficulty he faced

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

         information. Trial counsel continued to seek helpful information from the prosecutor

         but little was disclosed prior to trial. While substantial information was disclosed by

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

         investigate, verify or dispute the disclosures. In most instances, defense counsel was

         permitted to read documents and take notes but was not given copies.


               The defendant's current claim that trial counsel provided

         ineffective representation has not been shown to meet the

         Strickland requirements and relief on this basis is not justified.

          FINDINGS OF FACT - ACTUAL INNOCENCE - NEWLY DISCOVERED EVIDENCE


       Some years after the conviction, Trial Counsel was contacted by Daniel Glasscock.

Counsel took a sworn statement from Glasscock as well as a video recording. Glasscock passed

a polygraph administered by the Harris County District Attorney's Office and retold his story a

second time to DA Investigator Steve Clappert. Glasscock also testified at the habeas hearing

conducted by this Court. The Court finds as a fact:


       1. Glasscock told Trial Counsel that he overheard a conversation of Sanders shortly

           after the murder of Belinda Temple. Sanders admitted shooting his shotgun during

           the burglary of his neighbor's house. [WR28, DX-1 "Oral/Videotaped Deposition of

           D. Glasscock"].
2. In subsequent statements given to this Court as well as Prosecutors, Glasscock

    substantially varied the facts originally given to Trial Counsel.     In substance,

    Glasscock repudiated the most important details to the extent that his future

    credibility as a witness is significantly impaired. [WR28, SX-78 "Transcription of D.

    Glasscock's Statement"; WR28, SX-79 "CD-D.GIasscock's Statement" (Media filed

    as part of the record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT79.mp3.);

   WR28, SX-80 "Transcription of Clappaifs interview of D. Glasscock's statement";

   WR28, SX-81 "Recorded Conversation of D. Glasscock" (Media filed as part of the

    record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-83

   "Recorded conversation of D. Glasscock" (Media filed as part of the record, see

    file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28,           SX-84 "Recorded

   conversation of D. Glasscock (Media filed as part of the record, see file: TEMPLE-

   1008763-A-RR-STATE.EXHIBIT84.mp3.)].


      CONCLUSIONS OF LAW - ACTUAL INNOCENCE-NEWLY DISCOVERED EVIDENCE


       The defendant is required to establish by clear and convincing evidence that no

reasonable juror would have convicted him in light of the new evidence.        Ex Parte

Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014). In order to determine whether the

defendant has met this standard, the court must examine the new evidence in light of

the evidence presented at trial. Ex Parte Thompson, 153 S.W.3d 417 (Tex. Crim. App.

2005); Ex Parte Elizondo, 947 S.W. 207 (Tex. Crim. App. 1996).
               A person claiming actual innocence must show that the new evidence creates a

        doubt as to the correctness of the verdict sufficient to undermine confidence in the

        verdict and that it is probable that the verdict would be different on retrial, Ex Parte

        Holloway, 413 S.W.3d 95 (Tex. Crim. App. 2013) and that no reasonable juror would

        have convicted him in light of the new evidence.


               Further, the defendant has a "Herculean task" when urging a new trial because

        of newly discovered evidence. Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App.

        2014). This is because once the defendant has been afforded a fair trial and convicted,

       the presumption of innocence disappears and it is entirely appropriate to apply an

       extraordinarily high standard of review. Herrera v. Collins, 506 U.S. 390(1993).


               The new evidence provided by Glasscock does not meet

       this high standard even the version of his original statement to

        Dick DeGuerin. It further fails in light of his recanting much of

       his original statement.                The defendant has not met the

       "Herculean task" required, and relief based on actual innocence

       is not justified.


                         FINDINGS OF FACT - EXCULPATORY EVIDENCE



       The Court finds that trial prosecutors either intentionally, deliberately or negligently

failed to disclose the following facts to the defendant or disclosed the facts during the actual
trial that prevented the defendant from fairly being able to timely investigate or effectively use

the evidence "irrespective of the good faith or bad faith of the prosecution" Brady v. Maryland,

supra:



         1. The report prepared by Dep. Hernandez concerning recovery of the H& Rshotgun

             was lost, destroyed or never prepared, showing when, how, where and from whom

             the weapon was obtained. [WR5, P.76-84; WR12, P.127-30,169-70, 202-15; WR29,

             DX-3, Bates 450; WR29, DX-3, Bates 460 "Holtke's Offense Report"; WR26, SX-17

             "Pasadena Lab Report"; SX-18 "HCSO Supplement Report"; SX-19 "HCSO Report";

             WR30, DX-4, "Leithner's Supplement Report"]; [WR11, P.34]; [WR11, P.35].

         2. Natalie Scott told investigators that the victim was having problems with a student

             and that she was worried that he knew where she lived. [WR29, DX-3, Bates 101-

             02, "Page Offense Report 1/12/99"].

         3. Riley Joe Sanders was interviewed by 7 different officers on 6 days. After Sanders

            testified, the State did not disclose his oral statements [WR7, P.241; WR9, P.225]

            from Jan. 11, 1999 [WR29, DX-3, Bates 51-52] Jan. 12, 1999 [WR 29, DX-3, Bates

            89], Jan. 14, 1999 [WR 29, DX-3, Bates 77-78,105], Jan. 28, 1999 [WR12, P.127-30],

            Jan. 29, 1999 [WR29, DX-3, Bates 250-52], Jan. 25, 1999, [WR29, DX-3, Bates 214-

            17,"Hernandez Offense Report"] or Feb. 1, 1999 [WR27, DX-3, Bates 1939-40]; nor

            did the State produce any of the polygraph tests or questions used in the

            examinations. [TR25, P.5-14; WR3, P.9, L.10-14; WR9, P.192, L.11-P.194, L.1].

         4. Cody Ellis was interviewed on Jan. 14 [WR29, DX-3, Bates 149-50], 25 [WR29, DX-3,

            Bates 214-17], and 28 [WR29, DX-3, Bates 824-26] 1999, and Feb. 10, 1999 [WR29,

                                               10
   DX-3, Bates 279-80]. On the last occasion he was administered a polygraph test. He

   never mentioned that he was in possession of Sander's H & R shotgun. Although

   known to law enforcement, Ellis was never questioned about his hiding the H & R

   shotgun, later recovered with a spent reloaded .00 buckshot shell still in the

   chamber; how the weapon came to be wrapped in a blood spotted towel; and the

   circumstances under which the H & R shotgun left Ellis' possession. [WR29, DX-3,

   Bates 838-39 "Statement of Jonathan Pena"; WR32, DX-120, "Statement of Carlos

   Corro"].

5. Recorded oral statements of Margaret Christenson [WR23, P.19, L.14-19] and Stacy

   Ferguson, both of which saw the victim in the school parking lot shortly before her

   murder.    [WR35, DX-179 "Siegler's Handwritten List of Recorded Interviews";

   WR35, DX-180 "Audiotapes"; WR23 P.17, L.l-13; WR23, P.21-22; WR23, P.25, L.5-

   6].

6. On August 25, 2005 at a discovery hearing, the defendant requested all

   "documentation of leads of other suspects."       [TR4, P.45, L.20-22].   The Judge

   ordered disclosure of "any reports, documentation which reports tips, leads as to

   another person having committed this offense, that's Brady material." [TR4, P.46,

   L.3-8 ("That certainly would be - - once again, this is a two-part request. Obviously

   any reports, documentation which reports tips, leads as to another person having

   committed this offense, thafs Brady material. She has a duty to disclose that to

   you.")]. The trial prosecutor informed the Court that the police had checked out all

   of the calls and nothing came of those efforts. [TR4, P.46, L.20-P.47, L.12], Relying


                                       11
    on the statement of the prosecutor, the Court denied the request. [WR30, DX-18,

    "Affidavit/Partial Transcript of William Harmon"; TR4, P.48, L.5-8]. At that same

    hearing, the trial prosecutor informed the Court that the weapons recovered had

    nothing to do with the murder; that they were the wrong type of weapons; and the

    wrong type of ammunition. [TR4 P.54, L.20-23]. Finally, the trial prosecutor told the

    Court that there was no evidence favorable to the defense even though Mrs. had

    called law enforcement stating that her husband may have killed the victim. [WR7,

    P.244-45]. The Cain information was disclosed October 4, 2007, just 11 days prior to

    the beginning of trial. [WR23, P.76-77; WR32, DX-118, "Partial Transcript Between

    Siegler/DeGuerin"; WR29, DX-3, Bates 348].

7. Although required to disclose by the Court, the trial prosecutor did not disclose

   evidence of the Parker's dog barking near the time of the murder. [TR4 P.46-48,

   "August 25, 2005, Pretrial Hearing"; WR9, P.227-34; WR29, DX-3, Bates 19]. This

    information was gained by the defendant on October 16, 2007 after the first witness

    had testified.   [TR9, P.97-102, P.115-17; WR32, DX-117, DX-117A, DX-117B,

   "Transcripts of Parker Interviews, October 17, 2007"; WR26, SX-25 "Dick DeGuerin

   Offense Report Notes"].

8. The State failed to produce prior to trial, the written statements of Cody Ellis, Cody

   Towner, Michael Gradham, Johathon Pena, Riley Joe Sanders, Casey Goosby [WR29,

   DX-3, Bates 263-65] or Carlos Corro, all of which would have supported an

   alternative suspect claim. [WR9, P.225-28; WR12,195-96].

9. The trial prosecutor never produced an FBI report which profiled the possible killer.


                                        12
    [WR12, P.224-29, "Testimony of Det. Schmidt";WR30, DX-5, "FBI Report"].

10. In January, 1999, Riley Joe Sanders was interviewed by Officers Hernandez and

    Lampson and gave 2 oral statements. [WR12, P.127-130; WR29, DX-3, Bates 250-

    52,"Leithner Supplemental Offense Report"]. Neither was disclosed. [WR7, P.204,

    241; WR9, P.225].

11. On January 28,1999, Cody Ellis give police a written statement. [WR29, DX-3, Bates

   824-26]. He did not reveal nor was he asked about his possession of the H & R

   shotgun. The written and oral statements were never disclosed. [WR7, P.204].

12. Jonathon Pena gave police a written statement indicating he was present at Casey

   Goosby's home when Goosby, Cody Ellis and Carlos Corro planned the

   Heatherington burglary; that shortly thereafter, Riley Sanders brought his H & R

   shotgun from home to go shooting with them; and Cody Ellis told him later that he

   was keeping Sanders shotgun under his bed. [WR29, DX-3, Bates 838-39].

13. On Feb. 1, 1999, Carlos Corro gave a written statement to police that he was aware

   Cody Ellis had been hiding Sander's shotgun under his bed and that he had

   participated in the Heatherington burglary.    [WR29, DX-3, Bates 840-42; WR9,

   P.188, L.24-25; WR9 P.189, L.l-6].

14. On Feb. 1, 1999, Randall Hess gave a written statement to police. [WR29, DX-3,

   Bates 836-37]. He indicated that Sanders, Granthom and Towner had come to his

   house around 3:30 pm on January 11, 1999, looking for drugs and acting goofy as if

   they were already high. [WR29, DX-3, Bates 251, 257].




                                        13
15. In January, 1999, Joe Sosa reported that on the day of the murder, Towner and

    Granthom were at Sander's home at the time of the murder and that if you put a

    pillow over the muzzle of a shotgun, it would muffle the sound. [WR31, DX-90,

    "Schmidt's Offense Report"].

16. On Feb.l, 1999, Towner is given a polygraph test. The questions asked were never

    disclosed. [WR3 P.9, L.10-14].

17. On Feb. 1, 1999, Granthom gave a written statement to law enforcement and the

    contents have never been disclosed. [WR29, DX-3, Bates 251-52; WR32, DX-92 "List

   of Grand Jury Witnesses"].

18. On Feb. 10, 1999, Granthom is given a polygraph test and although he was

   determined to be deceptive, the questions asked were never disclosed. [WR3, P.9,

   L.10-14].

19. On January 12, 1999, Dennis Hundle is interviewed. [WR29, DX-3, Bates 97]. Not

   disclosed were his statements that on January 11, 1999, after 2 p.m. he sees 2 white

   males in their 20's in a truck driving around the neighborhood and it appeared they

   had no destination.


20. In March, 1999, Corros is arrested with Ellis and Goosby doing "donuts" on the green

   belt in Katy, Texas and one was driving a white truck. [WR32, DX-127, "March 16,

   1999, Ft. Bend Sheriffs Offense Report"; WR34, DX-141, "July 6,1999, Katy Police

   Department Offense Report"].

21. The State misrepresented the name of Carlos Corro as Carlos Gutierrez. [TR26,

   P.198, L.l-13, "Carlos Carrero"; TR26, P.227, L.9-14 "Carlos Gutierrez"; TR26, P.230,


                                      14
    L.2-5; TR26, P.233, L.23-25; WR32, DX-94 "Table of Contents from the Offense

    Report with Siegler's handwritten notes"; WR13, P.215-16; WR13, P.196, P.212,

    L21-P.214, L.18].

22. The State did not disclose the statement of Margaret Christian who saw the victim

   talking to the defendant on her cell phone between 3:20 pm and 3:30 pm on the day

   of her murder. [(TR15, P.159-183; WR23 P.16-17);WR23, P.25].

23. Det. Shipley repeatedly omitted favorable defense facts from her offense reports

   when she documented "synopses" of audio statements. [WR30, DX-32, Bates 2201

   "Shipley's Offense Report"].

24. The main prosecutor denied ever having seen or listened to these audio recordings

   when in fact she was aware of them and had listened to them. [WR10, P.107-111;

   WR35, DX-179, "Siegler's Handwritten List of Recorded Interviews"; WR35, DX-180

   "Audiotape" (Media filed as DEFENSE.EXHIBIT.180.mp3); WR10, P.lll, L.10-15;

   WR33, DX-129, P.43 "September 5, 2012, Curry email to his home address"; WR33,

   DX-129, P.234; WR33, DX-129, P.70 "July 29, 2013, Email from Smith to Curry"].

25. The State did not disclose the identity of Denise Lavoris who could have confirmed

   seeing the victim in the parking lot after school which would have helped the

   defense timeline. [WR31, DX-89, "Subpoena List"; WR35, DX-180, "Audiotape"

   (Media filed as DEFENSE.EXHIBIT.180.mp3) "Audiotape" (M. Christenson and S.

   Ferguson both identify Denis Lavoris in their statements); WR32, DX-114 (Siegler's

   handwritten notes); WR7, P. 136-138; WR33, DX-129, P.26 (Email from Curry to

   Siegler)].


                                      15
26. On January 25, 1999, Joe Cadena was interviewed by law enforcement and told

   them that around 4:25-4:30 pm he heard what sounded like a backfire from a car on

   the day of the murder.     [WR27, SX-34, "Transcription of Conversation between

   DeGuerin/Siegler"; WR12, P.223, L.ll-15.

27. The State's theory was that the defendant's dog (Shaka) was in the backyard at the

   time of the murder. The State did not disclose witness statements from: Jackie and

   Anthony Mata that the dog had access to the garage [WR29, DX-3, Bates 95]; Justin

   Valdez that the dog had garage access and would act calm around him [WR29, DX-3,

   Bates 85]; and Terry Schultz that the dog had access to the garage. [WR29, DX-3,

   Bates 96; WR9, P.82, L.7-8].

28. Deputy Brian Scudder saw the defendant after the murder with his head in his hands

   sobbing. [WR29, DX-3, Bates 17].

29. Roseanne Martinez reported that the defendant appeared weak kneed after

   discovering the victim's body. [WR29, DX-3, Bates 178].

30. Riley Joe Sanders identified Ryan Bruno's house. In one statement, he indicated

   nobody was home [WR29, DX-3, Bates 828] and in the other statement, that he had

   stayed five minutes. [WR27, SX-45A "Sealed document, unsealed during hearing"

   (RJS Grand Jury Testimony, 4/21/1999)]. Bruno was never interviewed nor was his

   identity disclosed. [WR9, P.46-47 (Writ Testimony, K. Siegler); WR29, Bates 1570-

   1572 (GJ Testimony of M. Granthom)].




                                      16
31. The State did not disclose the Harris County administrative bulletin indicating that

    the murder took place between 4:15 pm and 5:30 pm. [WR29, DX-3, Bates 3, "Case

    Synopsis"].

32. During trial, the State failed to produce oral statements to law enforcement of

    witnesses after they had testified. [WR7, P.241].

33. After conviction, the State's main prosecutor instructed law enforcement and

    District Attorney Officials not to disclose records pursuant to an Open Records

    request. [WR32, DX-115, "Siegler Email Chain, November 20, 2007"; WR30, DX-34,

   "Siegler Email, November 30, 2007"]. Disclosure was made only after these writ

   proceedings were initiated. [WR5, P.49-53; WR17, P.66-88].

34. Years after leaving the District Attorney's Office, the lead trial prosecutor learned

   that Glasscock had approached Dick Deguerin. [WR31, DX-79, "Email Report",

   "Bonds Email July 22, 2012"; WR35, DX-202, P.310 - 7/22/2012; WR33, DX-129,

   P.437 "7/22/2012]. She then contacted a Sheriffs Deputy involved in the trial

   investigation [WR19, P.281-82; WR35, DX-169, "Cell Phone Records of Holtke"] and

   asked him to contact Glasscock and another witness [WR2, P.22-24 (Cody Ellis)]

   before they could be contacted by the Special Prosecutor or current members of the

   District Attorney's Office.      [WR3, P.123, L19-P.124, L.20; WR30, DX-7,

   "Affidavit/Arrest Warrant" (for Cody Ray Ellis); WR27, SX-43, "Sgt. Holtke Email to

   Curry, September 5, 2012"]. The Deputy did so and afterwards, their stories were

   significantly different than the original version. [WR27, SX-43; WR34, DX-137, "CD

   Audio Recording of C. Ellis"; WR35, DX-202, P.249, P.476; WR34, DX-130,


                                       17
    "Cellphone Excel Spreadsheet WR35, DX-169, "Cell phone records of M. Holtke".

    WR27, SX-49, "Holtke Supplemental Reporf (2012 Investigation); WR28, DX-1,

    "Oral/Videotaped Deposition of Daniel Glasscock" (by Dick DeGuerin); WR26, SX-

    11-12, "Audio Interview and Transcript of Audio Interview of D. Glasscock" (by

    Steve Clappart); WR30, DX-6, "D. Glasscock Polygraph Report"; WR26, SX-13,

    "Videotaped Deposition of D. Glasscock"; WR27, SX-51-52, "Clegg's and Minchev/s

    Supplemental Reports"].

35. Additionally, long after leaving the District Attorney's Office, when the original lead

    trial prosecutor learned of the newly discovered evidence investigation by the

    Special Prosecutor [WR8, P.16-17; WR33, DX-129, P.291-94, September 11 & 12,

    Email Exchange b/w Curry and Beers], she personally obtained representation for

    Riley Joe Sanders from two very talented criminal defense lawyers, Mac Segrest and

   Chip Lewis. [WR19, P.281-82. WR4, P.77, L.l-12; WR7, P.270, L.ll-13. WR33, DX-

   129, P.291-94, September 11 & 12, Email Exchange b/w Curry and Beers].

36. After the trial, the lead prosecutor Kelly Siegler ran for District Attorney against Pat

   Lykos and lost. [WR4, P.88]. After her defeat, she left the District Attorney's Office

   but through friends who remained on the staff, learned that Dick Deguerin had

   brought the Glasscock information to the new District Attorney for further

   investigation. [WR19, P.241-47; WR4, P.88-96; WR7, P.274, L.13-15]. A Special

   Prosecutor was appointed and faced significant difficulty in investigating the validity

   of Glasscock's claim. [WR7, P.270-71; WR35, DX-202, P.676, "September 10, 2012,

   Email from Durfee"; WR35, DX-202, P.676; WR35, DX-202, P.676]; WR35, DX-202,

                                        18
            P.440, "August 17, 2012, Email from Chin"; WR35, DX-202, P.700; WR3, P.122, L.9-

            15; WR35, DX-202, P.676; WR35, DX-173, August 30, 2012 Email to Alan Curry re:

            Grand Jury Subpoena; WR35, DX-202, P.698].

        37. Siegler lied to the trial judge about the phone numbers for the Roberts being

            disconnected. [TR6, P.7, L.25-P.8, L.8 (Pretrial Hearing October 4, 2007); WR35,

            DX-198, "Siegler Emailto Clappart, October 4, 2007"].

                             CONCLUSIONS OF LAW - EXCULPATORY EVIDENCE


        In Ex Parte Harleston 431 SW3d 67 (Tex. Crim. App. 2014), the Court held that when

reviewing a habeas court's findings of fact and conclusions of law, "we defer to those findings

and conclusions if they are supported by the record. We defer to those findings supported by

the record because the habeas court is the 'original factfinder' and is in the best position to

evaluate the credibility of the testifying witnesses. Ex Parte Reed, 271 SW3d 698 (Tex. Crim.

App. 2008). However, ourdeference is not a rubber stamp, and we can invoke our authority as

the ultimate fact finder to make contrary or alternative findings and conclusions when its

independent review of the record reveals that the trial judge's findings and conclusions are not

supported bythe record." See also Ex Parte Navarijo, 433 SW3d 558 (Tex. Crim. App. 2014).

       In Ex Parte Villegas, 415 SW3d 885 (Tex. Crim. App. 2013) relief was granted because the

defense was not able to present "evidence of an alternative perpetrator". While it is true in the

current case that the defense was able to raise the issue of an alternative perpetrator, that

effort was limited and hampered by the State's failure to disclose a number of crucial pieces of

evidence that would have allowed a much more effective presentation of an alternative suspect

as well as to more effectively cross examine Riley Joe Sanders.

                                               19
        A similar situation existed in Ex Parte Miles, 359 SW3d 647 (Tex. Crim. App. 2012).

There the Court held that the defendant should get a new trial because the State had failed to

disclose police reports that indicated other suspects. The Court held that "the State failed to

disclose evidence which had been known to the prosecution but unknown to the defense.

United States v. Agurs, 427 U.S. 97 (1976). Even if the prosecution was not personally aware of

the evidence, the State is not relieved of its duty to disclose because 'the State' includes in

addition to the prosecutors, other lawyers and employees in his office and members of law

enforcement connected to the investigation and prosecution of the case." Kyles v. Whitley, 514

U.S. 419 (1995); Ex Parte Reed, 271 SW3d 698 (Tex. Crim. App. 2008). The Court also held that

"the two undisclosed police reports are exculpatory and could have constituted impeachment

evidence within the purview of Brady." Defense counsel asserted that the undisclosed reports

"would have allowed him, at a minimum, to develop an alternate theory for the shooting". The

Court ultimately held that "the disclosure of all of this information to the jury could have

significantly undermined the confidence in the State's case."


       That is exactly the situation at hand.        The ultimate issue is whether the State's

nondisclosure or late partial disclosure was sufficient to deny the defendant a fair trial.


       The current prosecutors make a strong case urging that the trial jury heard the

testimony and cross-examination of both the defendant and Riley Joe Sanders. The jury

determined their credibility and elected to accept the testimony of Sanders and reject the

testimony of the defendant. The jury then unanimously found the defendant guilty beyond a

reasonable doubt.




                                                20
         But the story doesn't end there. The decision facing this habeas court is whether the

non-disclosed or late disclosed information could have caused a different result. Like it or not

this Court has the duty to make that determination and it is likewise the duty of the Court of

Criminal Appeals to accept the conclusion or to reach a different result.


         Under both Brady v Maryland 373 U.S. 87 and United States v. Bagley, 473 U.S. 667

(1985), a defendant must show: (1) the State failed to disclose evidence, regardless of the

prosecution's good or bad faith; (2) the evidence was favorable to the defendant; and (3) the

evidence is material and there would be a reasonable probability that had the evidence been

disclosed, the outcome of the trial would have been different. The Courts also held that

"favorable evidence includes exculpatory evidence as well as impeachment evidence." They

defined impeachment evidence as "evidence which disputes, disparages, denies or contradicts

other evidence."



        The Court further stated; "The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial does not

establish materiality in the constitutional sense. The defendant must show that 'in the light of

all of the evidence, it is reasonably probable that the outcome of the trial would have been

different had the prosecutor made a timely disclosure. Thus, sometimes what appears to be a

relatively inconsequential piece of potentially exculpatory evidence may take on added

significance in light of other evidence at trial."


        In Brady, the defendant contended that if the evidence had been disclosed, he would

have modified his defensive strategies and the State would have had to alter its arguments.


                                                     21
That is exactly the contention currently advanced by the defendant's counsel. See also Pena v.

State, 353 SW3d 797 (Tex. Crim. App. 2011).


        This trial was very very fact specific. The case was circumstantial and both the Court of

Appeals and the Court of Criminal Appeals devoted the majority of their long opinions to

carefully reviewing the multitude of small details. That analysis increases the importance of the

non-disclosed or late disclosed evidence at issue here.



        In addition, the Court of Appeals in this cause found numerous instances of

prosecutorial misconduct, but concluded: "While we certainly condemn such tactics, in light of

the whole record, we cannot conclude that these errors were so prejudicial, or so inflamed the

jury, that appellant was deprived of his substantial rights or a fair trial." The findings of this

habeas Court enlarge and enhance that conclusion, and magnify the determination that the

defendant was denied a fair trial.



       As the Supreme Court noted in Brady: "Not without some doubt, we conclude that the

withholding (of evidence) was prejudicial to the defendant Brady."


       After careful consideration and review of the law and all of the

evidence produced at trial and in the writ hearing, "not without some

doubt" the Court concludes that the defendant has shown he was

denied a fair trial because of the State's failure to disclose or timely

disclose favorable evidence; and had that evidence been disclosed or


                                               22
disclosed timely, the results of the trial would have been different.

This Court recommends that the Court of Criminal Appeals grant the

defendant a new trial in this case.


       In conclusion, the Court expresses its deep gratitude to, and admiration of, the

outstanding lawyers who represented both the defendant and the State at this lengthy habeas

hearing. Their preparation and representation of their respective positions in an exceptionally

professional and cooperative manner demonstrates the highest quality of our legal system.

       Signed and entered on this the 6th day of July, 2015.




                             Larry Gist, Judge Presiding




                                               23
2. Annotated Temple Findings (Citations with Additional Support)




 t,M. . '. ,*&. «J*i£ltlL£J'~.& 4...«. »,I .
                                           No. 1008763-A

                              IN THE 178™ DISTRICT COURT OF

                                   HARRIS COUNTY, TEXAS

                                             EX PARTE

                                    DAVID MARK TEMPLE

                                   FINDINGS OF FACT AND

                                   COUCLUSIONS OF LAW



INTRODUCTION; The defendant was convicted by a jury of the murder of his wife, Belinda

Temple, and sentenced to serve life in the Department of Corrections. The Defendant appealed

and the conviction was affirmed by the 14th Court of Appeals. Temple v. State, 342S.W.3rd 572

(2010); The Defendant appealed that decision to the Texas Court of Criminal Appeals which also

affirmed his conviction and sentence. Temple v. State, 390 S.W.3d 341 (2013).


       The defendant then subsequently filed this application for writ of habeas corpus. The

defendant has advanced the following claims for relief:


       1.   The State suppressed evidence favorable to the Defense in violation of Kyles v.

            Whitley, 514 U.S. 419 (1995) and Brady v. Maryland. 373U.S. 83 (1963).

       2. The State suppressed evidence that would have impeached the trial testimony of

            Riley Joe Sanders and Detectives Schmidt and Leitner in violation of United States v.

            Baglev, 473 U.S. 667 (1985).

       3. The Trial Court failed to disclose Grand Jury testimony favorable to the Defendant.
4. The Defendant received ineffective representation from his trial counsel for failure

    to use information from the Defendant's father regarding the time available to the

    Defendant to commit the offense.


5. The Defendant received ineffective representation from his trial counsel for failure

    to get a continuance during trial.

6. The Trial Court deprived the Defendant of the right to investigate exculpatory

    evidence regarding an alternative suspect.

7. The Defendant is entitled to a new trial based on newly discovered evidence.

8. The Defendant is actually innocent.


    Many of these claims were raised in one fashion or another during the direct

appeals of this case. The Court of Appeals decision involved 61 pages and virtually all of

them were devoted to discussions of the facts of this cause.



    The opinion of the Court of Criminal Appeals with much smaller print was on 23

pages and virtually the entire opinion dealt with intensive factual analysis. Those two

opinions highlight the critical nature of the facts of this case. The testimony is incredibly

complex and intertwined.


   The investigation of this murder involved over 400 single spaced investigator's

reports. Over 30 witnesses appeared before the Grand Jury in the following months but

no indictment was returned. [WR32, DX-94-112, "Grand Jury Subpoenas" (19 total

subpoenas); WR32, DX-92, "Grand Jury List of Witnesses " (15 witnesses testified

before the Grand Jury)]. 5 years later the trial prosecutor took responsibility of the case
and she had the Defendant arrested on November 30, 2004. [CRl, P.3, "Complaint"].

DeGuerin appeared as counsel of record on December 3, 2004. [CRl, P.5]. Then 2

years later, the Defendant was indicted by a Grand Jury which apparently heard no

witnesses. [CRl, P.17, "2/28/2005 Indictment"]. The trial lasted for several weeks with

the jury finding the Defendant was guilty beyond a reasonable doubt.            The trial

testimony was circumstantial and very fact specific, which lends some credibility to the

current Defense claim that critical exculpatory evidence was not disclosed.


        The lead Prosecutor at trial was Kelly Siegler and the lead Defense Counsel was

Dick DeGuerin.



        One of the major grounds on direct appeal dealt with a claim that the trial

prosecutor had engaged in misconduct to such a degree that it denied the Defendant a

fair trial.   The claim was rejected by the Appellate Court, holding: "During the

emotionally charged four week trial, the prosecutor occasionally exceeded proper

questioning and argument when attacking the credibility of appellant and his family and

also apparently disobeyed or ignored a few of the trial court's rulings. While we

certainly condemn such tactics, in light of the whole record, we cannot conclude that

these errors were so prejudicial, or so inflamed the jury, that appellant was deprived of

his substantial rights or a fair trial."


        The Court of Criminal Appeals held that the circumstantial evidence was

sufficient to support the conviction. But specifically, the Court held; "Appellant argues

that the evidence showing that Riley Joe Sanders, III had motive, opportunity and access
to a 12-gauge shotgun should have received more weight in the Court of Appeals

analysis. The pertinent information about Sanders was presented to the jury, including

his activities on the day of the murder and his use of shotguns. Additionally, Sanders

himself testified. Appellant had the opportunity to cross-examine him, and the jurywas

able to assess his credibility. Furthermore, the jury also heard testimony that Sanders

was repeatedly questioned and that the law enforcement officers were satisfied by his

responses. It is the province of the jury to assess the credibility and demeanor of the

witness. We are not the fact finders, and neither was the court of appeals. Further, it is

not the State's burden to exclude every conceivable alternative to a defendant's guilt.

Therefore, we hold that the evidence was sufficient to support Appellant's conviction

for murder. The jury was rationally justified in finding Appellant guilty beyond a

reasonable doubt."



    It is thus apparent how critical the Defendant's current claims are. In the 2 and Vi

month hearing conducted by this habeas Court, some things were absolutely clear. The

lead prosecutor and the Defendant's lead attorney had a personal and contentious

relationship and a professional battle of the highest degree. Both were famous and

neither could stand losing to the other. Of enormous significance was the prosecutor's

testimony at the habeas hearing that apparently favorable evidence did not need to be

disclosed ifthe State did not believe it was true. [WR7, P.249-50, 255-57].


   The Prosecutor also testified that although a large number of investigators were

involved, she only elected to call a small number because she did not want the defense

lawyer to have access to their offense reports. [WR8, P.97-101; WR31, DX-89 "Siegler
                                        4
Subpoena List"]. At the time of this trial, the State was only obligated to provide

offense reports after a law enforcement officer had testified. [WR11, P.26, L.23-25. In

tendering only those reports for Holtke (WR30, DX-29) Leitner (WR30, DX-31) Shipley

(WR30, DX-32) and Schmidt (WR30, DX-33), defense counsel was prevented from

discovering the complete investigation of each testifying officer. WR12, P.15, L.16-20;

Bock, Whichkowski, Scudder, Hernandez, Gonzalez and Jones were excluded from

Siegler's list. Without offense reports or inclusion on a subpoenas list, defense

counsel could not have discovered who all participated in the investigation. WR11,

P.84].


   The Prosecutor indicated that some exculpatory evidence was tendered to the

defense in the middle of the trial. This gave the defense attorney little time to digest

much less investigate that evidence.     On one occasion, the defense did ask for a

continuance for this purpose but the request was denied by the trial judge.


   The hearing conducted in this Court involved the lengthy examination of over 30

witnesses and over 200 exhibits [WRl, 14-33 (292 Total Exhibits)], many of which were

extensive and complex.     Both the State and Defendant were permitted to tender

proposed factual findings and arguments, and based on the testimony and exhibits, the

Court hereby makes the following findings of facts and conclusions of law with regard to

the Defendant's claims:
                FINDINGS OF FACT - INEFFECTIVE TRIAL REPRESENTATION


    The Defendant now claims that his trial counsel, Dick DeGuerin was legally

ineffective to the extent that he was deprived of appropriate representation. The Court

hereby finds as facts:


1. Defense Counsel did not use Charles Kenneth Temple's written statement timeline.

2. Defense Counsel did file a Motion For Continuance when additional evidence was

    disclosed during trial by the Prosecutor. That Motion was denied by the Trial Judge.

    Defense Counsel did not urge another Continuance.

3. On direct appeal, the Appellate Court found that Trial Counsel waived any Brady

    claim based on the untimely motion for continuance and Counsel's failure to timely

    object at trial.

4. Trial Counsel received over 300 pages of offense reports [Holtke (WR30, DX-29)

    Leitner (WR30, DX-31) Shipley (WR30, DX-32) and Schmidt (WR30, DX-33)] to

    digest during trial, including portions dealing with the investigation of Sanders and

    his friends but made no objection regarding the large number of things that needed

    to be investigated. Det. Schmidt approximated 4-6 hours to review 150 pages of

    offense report. [WR13, P.216, L.23-25]. The Lead Prosecutor would only allow

    Trial Counsel to review the reports within the interior of the court. [WR11, P.29-

    30].   Trial counsel only mentions "Casey Goosby" by name in urging the

    continuance. [TR25, P.5-14].
               CONCLUSIONS OF LAW - INEFFECTIVE REPRESENTATION




      Strickland v. Washington, 466 U.S. 668 (1984) sets out the standards that apply

to claims of ineffective representation. See also Smith v. State, 286 S.W.3d 333 (Tex.

Crim. App. 2009); Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011).                  The

defendant is not entitled to errorless counsel but rather to objectively reasonable

representation.



      To be entitled to prevail on a claim of ineffective representation, the defendant

must show that (1) counsel's representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the defense. The second

test must be sufficient to show that there was a probability sufficient to undermine

confidence in the trial outcome to the degree that but for counsel's deficient

performance, the result of the proceedings would have been different. Hernandez v.

State, 726 S.W.3d 53 (Tex. Crim. App. 1986).


      Trial counsel's performance was not perfect but much of the difficulty he faced

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

information. Trial counsel continued to seek helpful information from the prosecutor

but little was disclosed prior to trial. While substantial information was disclosed by

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

investigate, verify or dispute the disclosures. In most instances, defense counsel was

permitted to read documents and take notes but was not given copies.
                The defendant's current claim that trial counsel provided

        ineffective representation has not been shown to meet the

        Strickland requirements and relief on this basis is not justified.

            FINDINGS OF FACT - ACTUAL INNOCENCE - NEWLY DISCOVERED EVIDENCE



       Some years after the conviction, Trial Counsel was contacted by Daniel Glasscock.

Counsel took a sworn statement from Glasscock as well as a video recording. Glasscock passed

a polygraph administered by the Harris County District Attorney's Office and retold his story a

second time to DA Investigator Steve Clappert. Glasscock also testified at the habeas hearing

conducted by this Court. The Court finds as a fact:


       1. Glasscock told Trial Counsel that he overheard a conversation of Sanders shortly

            after the murder of Belinda Temple. Sanders admitted shooting his shotgun during

            the burglary of his neighbor's house. [WR28, DX-1 "Oral/Videotaped Deposition of

            D. Glasscock"].

       2.   In subsequent statements given to this Court as well as Prosecutors, Glasscock

            substantially varied the facts originally given to Trial Counsel.     In substance,

            Glasscock repudiated the most important details to the extent that his future

            credibility as a witness is significantly impaired. [WR28, SX-78 "Transcription of D.

            Glasscock's Statement"; WR28, SX-79 "CD-D.GIasscock's Statement" (Media filed

            as part of the record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT79.mp3.);

            WR28, SX-80 "Transcription of Clappart's interview of D. Glasscock's statement";
  WR28, SX-81 "Recorded Conversation of D. Glasscock" (Media filed as part of the

   record, see file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-83

   "Recorded conversation of D. Glasscock" (Media filed as part of the record, see

   file: TEMPLE-1008763-A-RR-STATE.EXHIBIT81.mp3.); WR28, SX-84 "Recorded

   conversation of D. Glasscock (Media filed as part of the record, see file: TEMPLE-

   1008763-A-RR-STATE.EXHIBIT84.mp3.)].


      CONCLUSIONS OF LAW - ACTUAL INNOCENCE-NEWLY DISCOVERED EVIDENCE


       The defendant is required to establish by clear and convincing evidence that no

reasonable juror would have convicted him in light of the new evidence. Ex Parte

Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014). In order to determine whether the

defendant has met this standard, the court must examine the new evidence in light of

the evidence presented at trial. Ex Parte Thompson, 153 S.W.3d 417 (Tex. Crim. App.

2005); Ex Parte Elizondo, 947 S.W. 207 (Tex. Crim. App. 1996).

       Aperson claiming actual innocence must show that the new evidence creates a

doubt as to the correctness of the verdict sufficient to undermine confidence in the

verdict and that it is probable that the verdict would be different on retrial, Ex Parte

Holloway, 413 S.W.3d 95 (Tex. Crim. App. 2013) and that no reasonable juror would

have convicted him in light of the new evidence.


       Further, the defendant has a "Herculean task" when urging a new trial because

of newly discovered evidence. Ex Parte Harleston, 431 S.W.3d 67 (Tex. Crim. App.

2014). This is because once the defendant has been afforded a fair trial and convicted,
         the presumption of innocence disappears and it is entirely appropriate to apply an

         extraordinarily high standard of review. Herrera v. Collins. 506 U.S. 390 (1993).


                The new evidence provided by Glasscock does not meet

         this high standard even the version of his original statement to

         Dick DeGuerin. It further fails in light of his recanting much of

         his origmal statement.                 The defendant has not met the

         "Herculean task" required, and relief based on actual innocence

         is not justified.


                          FINDINGS OF FACT - EXCULPATORY EVIDENCE



         The Court finds that trial prosecutors either intentionally, deliberately or negligently

failed to disclose the following facts to the defendant or disclosed the facts during the actual

trial that prevented the defendant from fairly being able to timely investigate or effectively use

the evidence "irrespective of the good faith or bad faith of the prosecution" Brady v. Maryland.

supra:



         1. The report prepared by Dep. Hernandez concerning recovery of the H & Rshotgun

            was lost, destroyed or never prepared, showing when, how, where and from whom

            the weapon was obtained. [WR5, P.76-84; WR12, P.127-30,169-70, 202-15; WR29,

            DX-3, Bates 450; WR29, DX-3, Bates 460 "Holtke's Offense Report"; WR26, SX-17

            "Pasadena Lab Report"; SX-18 "HCSO Supplement Report"; SX-19 "HCSO Report";


                                                10
    WR30, DX-4, "Leithner's Supplement Report"]. The H & R shotgun was recovered

    with a spent reloaded .00 buckshot shell still in the chamber. [WR11, P.34]. This

    was consistent with the same type of ammunition that was used in the murder of

    Belinda Temple [WR11, P.35].

2. Natalie Scott told investigators that the victim was having problems with a student

    and that she was worried that he knew where she lived. [WR29, DX-3, Bates 101-

   02, "Page Offense Report 1/12/99"].

3. Riley Joe Sanders was interviewed by 7 different officers on 6 days. After Sanders

   testified, the State did not disclose his oral statements [WR7, P.241; WR9, P.225]

   from Jan. 11, 1999 [WR29, DX-3, Bates 51-52] Jan. 12, 1999 [WR 29, DX-3, Bates

   89], Jan. 14, 1999 [WR 29, DX-3, Bates 77-78, 105], Jan. 28, 1999 [WR12, P.127-30],

   Jan. 29, 1999 [WR29, DX-3, Bates 250-52], Jan. 25, 1999, [WR29, DX-3, Bates 214-

   17, "Hernandez Offense Report"] or Feb. 1, 1999 [WR27, DX-3, Bates 1939-40]; nor

   did the State produce any of the polygraph tests or questions used in the

   examinations. [TR25, P.5-14; WR3, P.9, L.10-14; WR9, P.192, L.11-P.194, L.1 (a

   third polygraph on Sanders was lost or destroyed)].

4. Cody Ellis was interviewed on Jan. 14 [WR29, DX-3, Bates 149-50], 25 [WR29, DX-3,

   Bates 214-17], and 28 [WR29, DX-3, Bates 824-26] 1999, and Feb. 10, 1999 [WR29,

   DX-3, Bates 279-80]. On the last occasion he was administered a polygraph test. He

   never mentioned that he was in possession of Sander's H & Rshotgun. Although

   known to law enforcement, Ellis was never questioned about his hiding the H & R

   shotgun, later recovered with a spent reloaded .00 buckshot shell still in the


                                     11
   chamber; how the weapon came to be wrapped in a blood spotted towel; and the

   circumstances under which the H & R shotgun left Ellis' possession. [WR29, DX-3,

   Bates 838-39 "Statement of Jonathan Pena"; WR32, DX-120, "Statement of Carlos

   Corro"].

5. Recorded oral statements of Margaret Christenson [WR23, P.19, L.14-19; reporting

   that she'd talked to Stacy Ferguson and Denise Lavoris about them seeing Belinda

   Temple in the parking lot after school on the phone with David] and Stacy

   Ferguson, both of which saw the victim in the school parking lot shortly before her

   murder.    [WR35, DX-179 "Siegler's Handwritten List of Recorded Interviews";

   WR35, DX-180 "Audiotapes"; WR23 P.17, L.l-13. Neither recorded statement was

   turned over to the defense after they testified; WR23, P.21-22 Stacey Nissley said

   the kid next door to Belinda was dangerous; WR23, P.25, L.5-6].

6. On August 25, 2005 at a discovery hearing, the defendant requested all

   "documentation of leads of other suspects." [TR4, P.45, L.20-22]. The Judge

   ordered disclosure of "any reports, documentation which reports tips, leads as to

   another person having committed this offense, that's Brady material." [TR4, P.46,

   L.3-8 ("That certainly would be - - once again, this is a two-part request. Obviously

  any reports, documentation which reports tips, leads as to another person having

  committed this offense, that's Brady material. She has a duty to disclose that to

  you.")]. The trial prosecutor informed the Court that the police had checked out all

  of the calls and nothing came of those efforts. [TR4, P.46, L.20-P.47, L.12]. Relying

  on the statement of the prosecutor, the Court denied the request. [WR30, DX-18,


                                      12
    "Affidavit/Partial Transcript of William Harmon"; TR4, P.48, L.5-8]. At that same

    hearing, the trial prosecutor informed the Court that the weapons recovered had

    nothing to do with the murder; that they were the wrong type of weapons; and the

    wrong type of ammunition. [TR4 P.54, L.20-23]. Finally, the trial prosecutor told the

    Court that there was no evidence favorable to the defense even though Mrs. had

    called law enforcement stating that her husband may have killed the victim. [WR7,

    P.244-45]. The Cain information was disclosed October 4, 2007, just 11 days prior to

    the beginning of trial. [WR23, P.76-77; WR32, DX-118, "Partial Transcript Between

    Siegler/DeGuerin"; WR29, DX-3, Bates 348, (Mrs. Cain made her report on

    November 5, 2004)].

7. Although required to disclose by the Court, the trial prosecutor did not disclose

    evidence of the Parker's dog barking near the time of the murder. [TR4 P.46-48,

   "August 25, 2005, Pretrial Hearing"; WR9, P.227-34; WR29, DX-3, Bates 19]. This

    information was gained by the defendant on October 16, 2007 after the first witness

    had testified.   [TR9, P.97-102, P.115-17; WR32, DX-117, DX-117A, DX-117B,

   "Transcripts of Parker Interviews, October 17, 2007"]. The prosecutor failed to

   include information about the Parkers when she was reading the particular

   offense report containing the information to defense counsel. WR26, SX-25 "Dick

   DeGuerin Offense Report Notes"].

8. The State failed to produce prior to trial, the written statements of Cody Ellis, Cody

   Towner, Michael Gradham, Johathon Pena, Riley Joe Sanders, Casey Goosby [WR29,

   DX-3, Bates 263-65 (only an oral statement of Casey Goosby)] or Carlos Corro, all of


                                       13
   which would have supported an alternative suspect claim. [WR9, P.225-28; WR12

   195-96].

9. The trial prosecutor never produced an FBI report which profiled the possible killer.

   [WR12, P.224-29, "Testimony of Det. Schmidt"; WR30, DX-5, "FBI Report"].

10. In January, 1999, Riley Joe Sanders was interviewed by Officers Hernandez and

   Lampson and gave 2 oral statements. [WR12, P.127-130 (These interviews took

   place on January 28 and 29); WR29, DX-3, Bates 250-52, "Leithner Supplemental

   Offense Report"]. Neither was disclosed. [WR7, P.204, 241;WR9, P.225].

11. On January 28,1999, Cody Ellis give police a written statement. [WR29, DX-3, Bates

   824-26]. He did not reveal nor was he asked about his possession of the H & R

   shotgun. The written and oral statements were never disclosed. [WR7, P.204].

12. Jonathon Pena gave police a written statement indicating he was present at Casey

   Goosby's home when Goosby, Cody Ellis and Carlos Corro planned the

   Heatherington burglary; that shortly thereafter, Riley Sanders brought his H & R

   shotgun from home to go shooting with them; and Cody Ellis told him later that he

   was keepingSanders shotgun under his bed. [WR29, DX-3, Bates 838-39].

13. On Feb. 1,1999, Carlos Corro gave a written statement to police that he was aware

   Cody Ellis had been hiding Sander's shotgun under his bed and that he had

   participated in the Heatherington burglary.     [WR29, DX-3, Bates 840-42; WR9,

   P.188, L.24-25; WR9 P.189, L.l-6].

14. On Feb. 1, 1999, Randall Hess gave a written statement to police. [WR29, DX-3,

   Bates 836-37]. He indicated that Sanders, Granthom and Towner had come to his


                                        14
    house around 3:30 pm on January 11, 1999, looking for drugs and acting goofy as if

    they were already high. [WR29, DX-3, Bates 251, 257].

15. In January, 1999, Joe Sosa reported that on the day of the murder, Towner and

    Granthom were at Sander's home at the time of the murder and that if you put a

    pillow over the muzzle of a shotgun, it would muffle the sound. [WR31, DX-90,

    "Schmidt's Offense Report"].

16. On Feb.l, 1999, Towner is given a polygraph test. The questions asked were never

    disclosed. [WR3 P.9, L.10-14].

17. On Feb. 1, 1999, Granthom gave a written statement to law enforcement and the

   contents have never been disclosed.      [WR29, DX-3, Bates 251-52 (NOTE: When

   Siegler tendered a list of persons who testified by the before the grand jury, she

   identified Granthom as "Michael Joseph GRADAM"); WR32, DX-92 "List of Grand

   Jury Witnesses"].

18. On Feb. 10, 1999, Granthom is given a polygraph test and although he was

   determined to be deceptive, the questions asked were never disclosed. [WR3, P.9,

   L.10-14].

19. On January 12, 1999, Dennis Hundle is interviewed. [WR29, DX-3, Bates 97]. Not

   disclosed were his statements that on January 11,1999, after 2 p.m. he sees 2 white

   males in their 20's in a truck driving around the neighborhood and it appeared they

   had no destination.


20. In March, 1999, Corros is arrested with Ellis and Goosby doing "donuts" on the green

   belt in Katy, Texas and one was driving a white truck. [WR32, DX-127, "March 16,


                                       15
    1999, Ft. Bend Sheriffs Offense Report" ("donut" driver of the small white car is

    Carlos Corros); WR34, DX-141, "July 6, 1999, Katy Police Department Offense

    Report" (Corro was a passenger in a white Dodge Ram pick-up truck)].

21. The State misrepresented the name of Carlos Corro as Carlos Gutierrez. [TR26,

    P.198, L.l-13, "Carlos Carrero"; TR26, P.227, L.9-14 "Carlos Gutierrez"; TR26, P.230,

    L.2-5; TR26, P.233, L.23-25; WR32, DX-94 "Table of Contents from the Offense

    Report with Siegler's handwritten notes". Siegler obtained access to the entire

   offense report as early as November 2004. WR13, P.215-16. The offense reports

   are replete with references to Corro.         Siegler was meticulous in her trial

   preparation and could not have been unaware of Corro's true identity. WR13,

   P.196, P.212, L.21-P.214, L.18].

22. The State did not disclose the statement of Margaret Christian who saw the victim

   talkingto the defendant on her cell phone between 3:20 pm and 3:30 pm on the day

   of her murder. [(TR15, P.159-183; WR23 P.16-17). The State did not disclose the

   statement of Stacy Nissley who reported that Belinda believed the boy next door

   was dangerous, WR23, P.25].

23. Det. Shipley repeatedly omitted favorable defense facts from her offense reports

   when she documented "synopses" of audio statements. [WR30, DX-32, Bates 2201

   "Shipley's Offense Report"].

24. The main prosecutor denied ever having seen or listened to these audio recordings

   when in fact she was aware of them and had listened to them. [WR10, P.107-111;

   WR35, DX-179, "Siegler's Handwritten List of Recorded Interviews"; WR35, DX-180


                                       16
    "Audiotape" (Media filed as DEFENSE.EXHIBIT.180.mp3). During the writ hearing,

    the State represented to the court there were no other tapes in the states

    possession. WR10, P.lll, L.10-15. Open records production revealed Alan Curry

    had created an inventory of the 11 boxes containing the State's file on Temple

   entitled "File Summary." WR33, DX-129, P.43 "September 5, 2012, Curry email to

   his home address". Within that document was an entry "Manila folder labeled

   "Taped WS's by Lampson / Shipley," containing One sheet of paper Two cassette

   recordings." On July 11, 2012, Curry forwarded that summary to Richard Holland.

   WR33, DX-129, P.234. On July 30, 2012, Andrew Smith emailed Curry so "the writs

   division could take over possession of the file." WR33, DX-129, P.70 "July 29, 2013,

   Email from Smith to Curry"].

25. The State did not disclose the identity of Denise Lavoris who could have confirmed

   seeing the victim in the parking lot after school which would have helped the

   defense timeline. [WR31, DX-89, "Subpoena List"; WR35, DX-180, "Audiotape"

   (Media filed as DEFENSE.EXHIBIT.180.mp3) "Audiotape" (M. Christenson and S.

   Ferguson both identify Denis Lavoris in their statements); The State's theory was

   predicated on a 45 minute window of opportunity, from 3:45pm to 3:32pm.

   WR32, DX-114 (Siegler's handwritten notes). Siegler testified that the timeline

   was crucial and it was going to be 'problematic' for the State. WR7, P. 136-138. On

   June 20, after oral arguments on Temple's Petition for Discretionary Review, Curry

   informs Siegler "A couple of the judges were concerned about the tight time frame

   in which the defendant needed to do all that he did in order to commit the offense


                                      17
    and stage the burglary and drive all around Katy." WR33, DX-129, P.26 (Email from

    Curry to Siegler)].

26. On January 25, 1999, Joe Cadena was interviewed by law enforcement and told

    them that around 4:25-4:30 pm he heard what sounded like a backfire from a car on

    the day of the murder. [WR27, SX-34, "Transcription of Conversation between

    DeGuerin/Siegler" (Siegler referencing Cadena Statement).        During the writ

    hearing, lead investigator admitted Cadena was one of seven witnesses that

    reported hearing a possible gunshot at approximately 4:30PM - Joe Cadena, Jim

   and Kathy Parker and the 3 Roberts boys. WR12, P.223, L.ll-15.

27. The State's theory was that the defendant's dog (Shaka) was in the backyard at the

   time of the murder. The State did not disclose witness statements from: Jackie and

   Anthony Mata that the dog had access to the garage [WR29, DX-3, Bates 95]; Justin

   Valdez that the dog had garage access and would act calm around him [WR29, DX-3,

   Bates 85]; and Terry Schultz that the dog had access to the garage. [WR29, DX-3,

   Bates 96]; Riley Joe Sanders told the Grand Jury that Shaka would bark if he

   mowed the lawn in the back yard, but if he just walked by their house "he would

   come by and sniff but that was about it. [WR9, P.82, L.7-8].

28. Deputy Brian Scudder saw the defendant after the murder with his head in his hands

   sobbing. [WR29, DX-3, Bates 17].

29. Roseanne Martinez reported that the defendant appeared weak kneed after

   discovering the victim's body. [WR29, DX-3, Bates 178].




                                      18
30. Riley Joe Sanders identified Ryan Bruno's house.     In one statement, he indicated

    nobody was home [WR29, DX-3, Bates 828] and in the other statement, that he had

   stayed five minutes. [WR27, SX-45A "Sealed document, unsealed during hearing"

   (RJS Grand Jury Testimony, 4/21/1999)]. Bruno was never interviewed nor was his

   identity disclosed. [WR9, P.46-47 (Writ Testimony, K. Siegler); WR29, Bates 1570-

    1572 (GJ Testimony of M. Granthom)].

31. The State did not disclose the Harris County administrative bulletin indicating that

   the murder took place between 4:15 pm and 5:30 pm. [WR29, DX-3, Bates 3, "Case

   Synopsis"].

32. During trial, the State failed to produce oral statements to law enforcement of

   witnesses after they had testified. [The lead prosecutor testified that she copied

   oral statements from the offense reports to prepare her own witnesses to testify.

   WR7, P.241].

33. After conviction, the State's main prosecutor instructed law enforcement and

   District Attorney Officials not to disclose records pursuant to an Open Records

   request. [WR32, DX-115, "Siegler Email Chain, November 20, 2007"; WR30, DX-34,

   "Siegler Email, November 30, 2007"]. Disclosure was made only after these writ

   proceedings were initiated. [WR5, P.49-53; WR17, P.66-88].

34. Years after leaving the District Attorney's Office, the lead trial prosecutor learned

   that Glasscock had approached Dick Deguerin.        [WR31, DX-79, "Email Report",

   "Bonds Email July 22, 2012"; WR35, DX-202, P.310 - 7/22/2012 - Siegler to

   Baldwin Chin - is this true?; WR33, DX-129, P.437 "7/22/2012 Siegler to John


                                       19
Brewer]. She then contacted a Sheriff's Deputy involved in the trial investigation

[WR19, P.281-82; WR35, DX-169, "Cell Phone Records of Holtke"] and asked him to

contact Glasscock and another witness [WR2, P.22-24 (Cody Ellis)] before they could

be contacted by the Special Prosecutor or current members of the District

Attorney's Office. [WR3, P.123, L.19-P.124, L.20 - Holtke prevented Clappart from

interviewing Ellis. WR30, DX-7, "Affidavit/Arrest Warrant" (for Cody Ray Ellis);

WR27, SX-43, "Sgt. Holtke Email to Curry, September 5, 2012"]. The Deputy did so

and afterwards, their stories were significantly different than the original version.

[Holtke informed Curry of his plan to interview Ellis on September 6, 2012, two

days before the Special Prosecution had arranged for Clappart interview Ellis.

WR27, SX-43. Holtke revealed confidential Glasscock information to Ellis. WR34,

DX-137, "CD Audio Recording of C. Ellis". On Monday, September 10, 2012, by

12:01PM, Doyle and Lewis emailed Clappart and Beers of their representation of

Ellis and Sanders, and requested all contact with their clients cease. WR35, DX-

202, P.249, P.476. Cell phone records obtained by Beers reveal a Holtke, Siegler,

Curry, Ellis, Sanders, Doyle and Lewis were in heavy communication with one

another in the hours preceding this notification. WR34, DX-130, "Cellphone Excel

Spreadsheet". They also reveal that Holtke maintained contact with Ellis in the

days after he had obtained by counsel. WR35, DX-169, "Cell phone records of M.

Holtke". WR27, SX-49, "Holtke Supplemental Report" (2012 Investigation); WR28,

DX-1, "Oral/Videotaped Deposition of Daniel Glasscock" (by Dick DeGuerin);

WR26, SX-11-12, "Audio Interview and Transcript of Audio Interview of D.


                                   20
    Glasscock" (by Steve Clappart); WR30, DX-6, "D. Glasscock Polygraph Report";

    WR26, SX-13, "Videotaped Deposition of D. Glasscock"; WR27, SX-51-52, "Clegg's

    and Minchew's Supplemental Reports"].

35. Additionally, long after leaving the District Attorne/s Office, when the original lead

    trial prosecutor learned of the newly discovered evidence investigation by the

    Special Prosecutor [WR8, P.16-17; WR33, DX-129, P.291-94, September 11 & 12,

    Email Exchange b/w Curry and Beers], she personally obtained representation for

    Riley Joe Sanders from two very talented criminal defense lawyers, Mac Segrest and

    Chip Lewis. [She also obtained counsel for Cody Ellis from Paul Doyle. WR19,

    P.281-82.   WR4, P.77, L.l-12- Paul Doyle, former prosecutor, tried the Susan

   Wright Case w/ Siegler".       Siegler testified she obtained counsel for Ellis and

    Sanders because she knew Clappart was coming to question them about Belinda

   Temple's murder. WR7, P.270, L.ll-13. WR33, DX-129, P.291-94, September 11 &

   12, Email Exchange b/w Curry and Beers.              Doyle and Lewis notified law

   enforcement of their representation of Ellis and Sanders on September 10, 2012].

36. Afterthe trial, the lead prosecutor Kelly Siegler ran for District Attorney against Pat

   Lykos and lost. [WR4, P.88]. After her defeat, she left the District Attorney's Office

   but through friends who remained on the staff, learned that Dick Deguerin had

   brought the Glasscock information to the new District Attorney for further

   investigation. [WR19, P.241-47. Siegler and her supporters believed the Glasscock

   investigation was political payback orchestrated by DeGuerin, Lykos and Leitner.

   WR4, P.88-96. "Dick DeGuerin told Pat Lykos he would support her for D.A. if she


                                        21
would agree to let him reopen the Temple investigation any way he wanted to."

WR7, P.274, L.13-15]. A Special Prosecutor was appointed and faced significant

difficulty in investigating the validity of Glasscock's claim and subpoenaed cell

phone records for Siegler, Holtke, Cody Ellis and Riley Joe Sanders, III, for the

relevant time period of the Glasscock investigation (July 2012 through September

2012). Siegler accused Beers of acting at the direction of the Temple defense team

and colluding with Pat Lykos. WR7, P.270-71.

   Scott Durfee, General Counsel for the Harris County District Attorney's Office,

described the appointment as an "informal recusal."        WR35, DX-202, P.676,

"September 10, 2012, Email from Durfee". Durfee acknowledged the potential

conflict given Curry's continued representation of the State in the Temple direct

Appeal. WR35, DX-202, P.676. Durfee deferred to Beers regarding the propriety of

sharing details of the Glasscock investigation with Curry given the conflict. WR35,

DX-202, P.676].

   On August 17, 2012, Baldwin Chin was informed that a special prosecutor Beers

had been appointed and that all investigative action was to be conducted through

Beers. WR35, DX-202, P.440, "August 17, 2012, Email from Chin." On August 27,

Curry was informed of the defense's specific claims for relief - that Siegler had

hidden favorable evidence and that the were file a motion for relief based on the

Glasscock information on Monday, September 10, 2012. WR35, DX-202, P.700.

Holtke was informed that a special prosecutor had been appointed and that all

investigative efforts were to be cleared through him.        WR3, P.122, L.9-15.


                                  22
           Although Alan Curry was aware of the special prosecutor's appointment (WR35,

           DX-202, P.676), he continued to assist Sgt. Holtke in a parallel investigation of

           Glasscock. WR35, DX-173, August 30, 2012 Email to Alan Curry re: Grand Jury

           Subpoena. On August 29, 2012, at Dean Holtke's request, Curry removed a blue

           binder from the State's Temple file that documented an investigation in 1999 of

           "ALL Thefts, BMV, Burg Ors" from 97-99 in the Temple neighborhood. WR35, DX-

           202, P.698. This binder was discovered in the possession of the Harris County

           Sheriffs Office in 2015 during the writ hearing with a post-it note affixed to the

           front that read "To Dean Holtke Only From Alan Curry"].

       37. Siegler lied to the trial judge about the phone numbers for the Roberts being

           disconnected. [TR6, P.7, L.25-P.8, L.8 (Pretrial Hearing October 4, 2007); WR35,

           DX-198, "Siegler Email to Clappart, October 4, 2007" (The same day, she gave her

           investigator a number at which she had been leaving messages)].

                           CONCLUSIONS OF LAW - EXCULPATORY EVIDENCE



       In Ex Parte Harleston 431 SW3d 67 (Tex. Crim. App. 2014), the Court held that when

reviewing a habeas court's findings of fact and conclusions of law, "we defer to those findings

and conclusions if they are supported by the record. We defer to those findings supported by

the record because the habeas court is the 'original factfinder' and is in the best position to

evaluate the credibility of the testifying witnesses. Ex Parte Reed, 271 SW3d 698 (Tex. Crim.

App. 2008). However, our deference is not a rubber stamp, and we can invoke our authority as

the ultimate fact finder to make contrary or alternative findings and conclusions when its




                                              23
independent review of the record reveals that the trial judge's findings and conclusions are not

supported by the record." See also Ex Parte Navarijo, 433 SW3d 558 (Tex. Crim. App. 2014).

        In Ex Parte Villegas. 415 SW3d 885 (Tex. Crim. App. 2013) relief was granted because the

defense was not able to present "evidence of an alternative perpetrator". While it is true in the

current case that the defense was able to raise the issue of an alternative perpetrator, that

effort was limited and hampered by the State's failure to disclose a number of crucial pieces of

evidence that would have allowed a much more effective presentation of an alternative suspect

as well as to more effectively cross examine RileyJoe Sanders.


        A similar situation existed in Ex Parte Miles, 359 SW3d 647 (Tex. Crim. App. 2012).

There the Court held that the defendant should get a new trial because the State had failed to

disclose police reports that indicated other suspects. The Court held that "the State failed to

disclose evidence which had been known to the prosecution but unknown to the defense.

United States v. Agurs, 427 U.S. 97 (1976). Even ifthe prosecution was not personally aware of

the evidence, the State is not relieved of its duty to disclose because 'the State' includes in

addition to the prosecutors, other lawyers and employees in his office and members of law

enforcement connected to the investigation and prosecution of the case." Kyles v. Whitley. 514

U.S. 419 (1995); Ex Parte Reed, 271 SW3d 698 (Tex. Crim. App. 2008). The Court also held that

"the two undisclosed police reports are exculpatory and could have constituted impeachment

evidence within the purview of Brady." Defense counsel asserted that the undisclosed reports

"would have allowed him, at a minimum, to develop an alternate theory for the shooting". The

Court ultimately held that "the disclosure of all of this information to the jury could have

significantly undermined the confidence in the State's case."

                                               24
        That is exactly the situation at hand.       The ultimate issue is whether the State's

nondisclosure or late partial disclosure was sufficient to deny the defendant a fair trial.


       The current prosecutors make a strong case urging that the trial jury heard the

testimony and cross-examination of both the defendant and Riley Joe Sanders. The jury

determined their credibility and elected to accept the testimony of Sanders and reject the

testimony of the defendant. The jury then unanimously found the defendant guilty beyond a

reasonable doubt.



       But the story doesn't end there. The decision facing this habeas court is whether the

non-disclosed or late disclosed information could have caused a different result. Like it or not,

this Court has the duty to make that determination and it is likewise the duty of the Court of

Criminal Appeals to accept the conclusion or to reach a different result.


       Under both Brady v Maryland 373 U.S. 87 and United States v. Baglev. 473 U.S. 667

(1985), a defendant must show: (1) the State failed to disclose evidence, regardless of the

prosecution's good or bad faith; (2) the evidence was favorable to the defendant; and (3) the

evidence is material and there would be a reasonable probability that had the evidence been

disclosed, the outcome of the trial would have been different.         The Courts also held that

"favorable evidence includes exculpatory evidence as well as impeachment evidence." They

defined impeachment evidence as "evidence which disputes, disparages, denies or contradicts

other evidence."



       The Court further stated; "The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial does not


                                                25
establish materiality in the constitutional sense. The defendant must show that 'in the light of

all of the evidence, it is reasonably probable that the outcome of the trial would have been

different had the prosecutor made a timely disclosure. Thus, sometimes what appears to be a

relatively inconsequential piece of potentially exculpatory evidence may take on added

significance in light of other evidence at trial."


        In Brady, the defendant contended that if the evidence had been disclosed, he would

have modified his defensive strategies and the State would have had to alter its arguments.

That is exactly the contention currently advanced by the defendant's counsel. See also Pena v.

State, 353 SW3d 797 (Tex. Crim. App. 2011).


       This trial was very very fact specific. The case was circumstantial and both the Court of

Appeals and the Court of Criminal Appeals devoted the majority of their long opinions to

carefully reviewing the multitude of small details. That analysis increases the importance of the

non-disclosed or late disclosed evidence at issue here.



       In addition, the Court of Appeals in this cause found numerous instances of

prosecutorial misconduct, but concluded: "While we certainly condemn such tactics, in light of

the whole record, we cannot conclude that these errors were so prejudicial, or so inflamed the

jury, that appellant was deprived of his substantial rights or a fair trial." The findings of this

habeas Court enlarge and enhance that conclusion, and magnify the determination that the

defendant was denied a fair trial.



       As the Supreme Court noted in Brady: "Not without some doubt, we conclude that the

withholding (of evidence) was prejudicial to the defendant Brady."


                                                     26
       After careful consideration and review of the law and all of the

evidence produced at trial and in the writ hearing, "not without some

doubt" the Court concludes that the defendant has shown he was

denied a fair trial because of the State's failure to disclose or timely

disclose favorable evidence; and had that evidence been disclosed or

disclosed timely, the results of the trial would have been different.

This Court recommends that the Court of Criminal Appeals grant the

defendant a new trial in this case.


       In conclusion, the Court expresses its deep gratitude to, and admiration of, the

outstanding lawyers who represented both the defendant and the State at this lengthy habeas

hearing. Their preparation and representation of their respective positions in an exceptionally

professional and cooperative manner demonstrates the highest quality of our legal system.

       Signed and entered on thisthe 6th day ofJuly, 2015.


                            Larry Gist, Judge Presiding




                                             27
»   »




        3. CD with Annotated Findings (PDF with linked sources and sources file)
2. CD vVtto /4*y>(rkt^

 [l^hfiA sursg* •ftte )
                                CAUSE NO. 1008763-A


EX PARTE                                                 IN THE DISTRICT COURT


                                                         HARRIS COUNTY, TEXAS

DAVID MARK TEMPLE                                        178TH DISTRICT COURT


                                        ORDER


      On this the           day of                             2015, came on to be heard

theApplicant's request for this Court toenter amended Findings ofFact and Conclusions of

Law. The Court hereby grants hisrequests andhereby enters the attached amended Findings

of Fact and Conclusions ofLaw. The Harris County District Clerk is hereby ordered to file

the attached Findings ofFact and Conclusions ofLawandthen forward them along withthe

accompanying disc to the Texas Court of Criminal Appeals in Austin, Texas. The Clerk is

notify the parties when the findings are forwarded to the Court of Criminal Appeals.

       Signed and entered on this the           day of                             2015.




                                                Larry Gist, Judge
