Opinion
WR-50,961-11
06-28-2023
EX PARTE RODNEY REED, Applicant
Do Not Publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 8701 IN THE 21ST DISTRICT COURT BASTROP COUNTY
Walker, J., dissented. Newell, J., did not participate.
ORDER
Per curiam
We have before us a subsequent application for a writ of habeas corpus filed under Texas Code of Criminal Procedure Article 11.071, Section 5. In May 1998, a Bastrop County jury convicted Rodney Reed, Applicant in this proceeding, of the capital murder of Stacey Stites. The jury answered the special issues submitted under Article 37.071 in favor of the death penalty, and the trial judge sentenced Reed to death. This Court affirmed Reed's conviction and sentence on direct appeal. Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) (not designated for publication).
Unless otherwise indicated, all mentions of "Articles" in this order refer to the Texas Code of Criminal Procedure, and all mentions of "11.071 applications" (or simply "applications") refer to applications for a writ of habeas corpus filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure.
Reed filed his initial (-01) 11.071 application in November 1999. In February 2001, Reed filed what he styled a "Supplemental Claim for Relief on Application for Writ of Habeas Corpus." This filing constituted Reed's first subsequent (-02) 11.071 application. In February 2002, this Court denied relief on Reed's -01 application and dismissed Reed's -02 application under Article 11.071, Section 5. Ex parte Reed, Nos. WR-50,961-01, -02 (Tex. Crim. App. Feb. 13, 2002) (not designated for publication).
Reed filed his second subsequent (-03) 11.071 application in March 2005. This Court dismissed some of the claims in that application as abuses of the writ under Article 11.071, Section 5 but remanded the case to the habeas court for further development of two of Reed's claims. Ex parte Reed, No. WR-50,961-03 (Tex. Crim. App. Oct. 19, 2005) (not designated for publication). After the habeas court returned the case to this Court, we issued an opinion denying relief. Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008).
Reed later filed his third (-04), fourth (-05), fifth (-06), and sixth (-07) subsequent 11.071 applications, none of which satisfied Article 11.071, Section 5. This Court dismissed those applications as abuses of the writ. Ex parte Reed, Nos. WR-50,961-04, -05 (Tex. Crim. App. Jan. 14, 2009) (not designated for publication); Ex parte Reed, No. WR-50,961-06 (Tex. Crim. App. July 1, 2009) (not designated for publication); Ex parte Reed, Nos. WR-50,961-07, -08 (Tex. Crim. App. May 17, 2017) (not designated for publication).
Reed filed his seventh subsequent (-08) 11.071 application in June 2016. In May 2017, this Court remanded the case to the habeas court for further development of two of Reed's claims. Id. Then, in June 2018, while the -08 proceedings were still pending in the habeas court, Reed filed his eighth subsequent (-09) 11.071 application. After the habeas court returned the -08 case to this Court, we denied relief on the remanded claims and dismissed all other claims raised in the -08 application under Article 11.071, Section 5. Ex parte Reed, Nos. WR-50,961-08, -09 (Tex. Crim. App. Jun. 26, 2019) (not designated for publication). We also dismissed Reed's -09 application under Section 5. Id.
Reed filed his ninth subsequent (-10) 11.071 application in November 2019. We remanded the case to the habeas court for further development of three of Reed's claims: a Brady claim, a false testimony claim, and an actual innocence claim. Ex parte Reed, No. WR-50,961-10 (Tex. Crim. App. Nov. 15, 2019) (not designated for publication).
The -10 case remained in the habeas court for several months. Then, on July 6, 2021, the habeas court held a status hearing. At this July 6 hearing, Reed's habeas team accused the State of additional Brady violations. Andrew MacRae, one of Reed's habeas lawyers, explained that, on June 25, 2021, he had received two letters from Matthew Ottoway, one of the State's habeas lawyers.
In the first letter, Ottoway stated that he had recently discovered certain "witness interview summaries … created by the trial prosecution team in preparation for the underlying 1998 criminal prosecution." Ottoway did not say who prepared these summaries, but he outlined their contents as follows:
• "[H-E-B store manager] Ron Haas stated that he had heard rumors at HEB that [Reed] knew Stacey Stites and would sometimes visit her at HEB. Mr. Haas said that Andrew Cardenas might have mentioned that [Reed] and Stacey Stites were acquaintances."
• "[H-E-B employee] Andrew Cardenas stated that Jose Coronado said he saw [Reed] speaking with Stacey Stites at HEB and got the impression from Jose that [Reed] and Stacey Stites knew each other. Mr. Cardenas denied seeing [Reed] in the store or speaking with Stacey Stites."
• "[H-E-B employee] Jose Coronado denied telling anyone that [Reed] came into HEB and visited with Stacey Stites."
Ottoway attached the witness interview summaries to the letter. The letter ended with a disclaimer: "You are being given this information in an abundance of caution to provide you anything that might conceivably be considered exculpatory or mitigating. The State does not vouch for the veracity of these statements."
In the second letter, Ottoway wrote that, in preparation for the upcoming evidentiary hearing, one of the State's potential habeas witnesses made a statement that "might conceivably be considered exculpatory or mitigating":
Suzan Hugen … a former HEB employee, stated that she saw [Reed] and Stacey Stites at the store on one occasion, maybe about a week before Stacey Stites's death. Ms. Hugen said that Stacey Stites introduced [Reed] to her as a good or close friend and that they appeared friendly, giggling, and flirting. Ms. Hugen said that [Reed] was with another man who was friends with the son of a woman who worked in the photo lab and that [Reed] was friends with this woman's son as well. Ms. Hugen also believed that Stacey Stites would not have locked her seatbelt in the way it was found. She believes that she told this information to a man working security named "Paul," who was short, skinny, wore glasses, had salt-and-pepper hair, and may have worked for a police department. It was possibly [Bastrop police officer] Paul Alexander, but Ms. Hugen was not sure.
This second letter ended with the same disclaimer as the first.
Reed asked the habeas court to (1) order the State to identify which member of the prosecution team prepared the witness interview summaries in question, (2) order further discovery, and (3) add (what Reed regarded as) these newly discovered Brady violations to the scope of the upcoming (-10) evidentiary hearing. The habeas court denied Reed's second and third requests but granted the first.
Two weeks later, on July 19, 2021, the habeas court held an evidentiary hearing on Reed's -10 application. As relevant here, the following events unfolded at the -10 hearing:
• Former Bastrop H-E-B employee Suzan Hugen testified that, on one occasion, she saw Reed inside the Bastrop H-E-B. Hugen stated that Stacey introduced Reed to her as "my very good friend, Rodney." According to Hugen, "[Stacey] was very flirty with him, giggly, happy. It seemed like more than a friendship." Hugen also testified that, when Reed was still "a suspect," she told Bastrop police officer Paul Alexander that "Rodney and Stacey were friends. She introduced me as a friend."
• Brent Sappington testified that, in early 1996, he was in Giddings at the apartment of his (since deceased) father, Bill Sappington, when he heard a "racket" coming from the apartment above. "It sounded like a bunch of tables and chairs being turned over with a bunch of screaming and hollering." According to Brent, Bill told him that the noise was "Jimmy [Fennell] … yelling at Stacey" and that that sort of thing happened "all the time." Brent also testified that, at some undetermined point in 1996, Bill tried to tell Lee County Assistant District Attorney Ted Weems and Giddings police officer Garnett Danewood about what he had heard at his apartment. According to Brent (who claimed to have been present for this conversation), Weems and Danewood told Bill to "mind [his] own business" and "hush his mouth" because they "already had their suspect."
• Ted Weems testified that Bill Sappington once approached him at church and told him that he had heard "loud arguing many times" coming from Fennell and Stacey's apartment. According to Weems, there was "nothing specific" in Bill's information; Weems agreed with the habeas prosecutor that it could be described as "general information, kind of background information." Weems recalled that he
had explained to Bill that the investigation into Stacey's murder was "not a Lee County case." Weems claimed that he told Bill to reach out to the Bastrop County authorities or the Texas Rangers to tell them what he knew, but Weems did not know if Bill followed that advice. He denied telling Bill to "mind his business" and "hush his mouth."
In October 2021, the habeas court signed the State's proposed findings of fact and conclusions of law pertaining to the -10 application. Among other things, the habeas court:
• Found Suzan Hugen's testimony "uncredible";
• Found Ted Weems to be credible;
• Found credible those parts of Brent Sappington's testimony that could be corroborated by Ted Weems; and
• Found "uncredible" those parts of Brent Sappington's testimony that differed from Weems's account.
The habeas court transmitted the record of the -10 proceedings to this Court in November 2021.
A month later, in December 2021, Reed filed his tenth subsequent (-11) 11.071 application, the subject of this order. In it, Reed raises three claims. First, Reed claims that the State violated due process when it failed to disclose the following items to Reed's trial lawyers: (A) the information that Suzan Hugen allegedly told Paul Alexander; (B) the information contained in the State's pretrial witness interview summaries pertaining to Ron Haas, Andrew Cardenas, and Jose Coronado; and (C) the information that Bill Sappington told Ted Weems and Garnett Danewood. Reed argues that this claim should proceed past Section 5 because its factual basis was not ascertainable on or before the date he filed his -10 application. See Art. 11.071, § 5(a)(1).
Second, Reed claims that the State violated due process when it elicited false or misleading lay testimony (what Reed calls "factual testimony") at trial. Specifically, Reed contends that: (A) Paul Alexander testified falsely when he stated that, other than discovering Fennell's truck at the Bastrop High School, he did not assist in the investigation into Stacey's death; (B) the State gave the jury a false and misleading impression when it impeached and discredited testimony from defense witnesses Julia Estes and Iris Lindley that Reed and Stacey knew each other; (C) Andrew Cardenas gave the jury a false or misleading impression when he said that he had never seen Reed and Stacey socializing at H-E-B; (D) Ranger Wardlow testified falsely when he said that the year-long investigation into Stacey's death had failed to turn up "anyone who linked [Stacey] in any way to [Reed]"; and (E) the State gave the jury a false or misleading impression when, in closing arguments, it maintained that Reed and Stacey were strangers to one another. Reed argues that this claim should proceed past Section 5 because its factual basis was not ascertainable on or before the date he filed his -10 application. See id.
Third, Reed claims that the State violated due process when it elicited false or misleading expert testimony (what Reed calls "forensic testimony") at trial. Specifically, Reed contends that the State's trial experts gave the jury false or misleading impressions when they suggested that: (A) Stacey died sometime between 3:00 and 5:00 a.m. on April 23, 1996; (B) Stacey was anally penetrated around the time that she died; (C) it is possible to estimate the age of a bruise by its color; and (D) spermatozoa break apart after 24-26 hours. Reed argues that this claim satisfies Section 5(a)(2) because, in light of the evidence he adduced in the -10 proceedings and in other proceedings, he has shown by a preponderance of the evidence that he is innocent of Stacey's murder. See Art. 11.071, § 5(a)(2).
We will review Reed's claims for Section 5 compliance in the order that they are presented.
I. CLAIM ONE: "The State violated … Brady."
The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. See Brady v. Maryland, 373 U.S. 83, 87 (1963). This rule applies equally to impeachment evidence and exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985), and it puts a duty on individual prosecutors to "learn of any favorable evidence known to others acting on the government's behalf in the case." Kyles v. Whitley, 514 U.S. 419, 437 (1995).
To demonstrate that he is entitled to post-conviction relief on Brady grounds, Reed has the burden to show that (1) the State failed to disclose evidence; (2) the evidence was favorable to him; and (3) the evidence was material. See Diamond v. State, 613 S.W.3d 536, 545 (Tex. Crim. App. 2020). Evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles, 514 U.S. at 433. Materiality is gauged collectively, not item by item. Id. at 436.
Beginning with Reed's contention that (A) Suzan Hugen's -10 hearing testimony contained Brady evidence, we conclude that the information that Hugen allegedly conveyed to Alexander was immaterial. Hugen testified that she told Alexander that Stacey had introduced Reed to her as her "friend." But Reed's jury already heard from one witness, Julia Estes, who said that she had seen Reed and Stacey socializing inside the Bastrop H-E-B. And another witness, Iris Lindley, testified that a woman who looked like Stacey had come by the Reed house asking for Rodney "kind of like how a girlfriend looks for a boyfriend." To the level of confidence associated with "reasonable probability," adding yet another dimension to this defensive theme is unlikely to have produced a different outcome.
After all, Reed's trial lawyers promised the jury that it would hear evidence of a "secret affair" between Reed and Stacey. Even considered in concert with Estes's and Lindley's testimony, Hugen's testimony would not have armed the defense with persuasive evidence of that kind of a relationship between Reed and Stacey. Further, it remains critically significant at this juncture that Reed denied knowing Stacey when the police questioned him. See Reed, 271 S.W.3d at 749 ("This made Reed's claim of a consensual sexual relationship, offered for the first time at trial, look like a manufactured and implausible explanation to account for the presence of his semen.").
It is true, as Reed points out in his application, that Hugen also testified that Stacey was "giggly" and "flirty" with Reed and that their interactions "seemed like more than a friendship." But in terms of what Suzan claimed to have told Officer Alexander, Hugen testified: "I said [to Alexander], 'Rodney and Stacey were friends. She introduced me as a friend.' You know, as -- she was his friend." (Emphases added). Even if a pretrial disclosure had led to Hugen testifying for the defense at trial that Stacey was "giggly" and "flirty" around Reed, we remain unpersuaded that Hugen's testimony would have made a material difference. The relevance of Hugen's testimony was based entirely on Hugen's interpretation of Stacey's demeanor and attitude toward Reed, and was therefore not particularly probative of a "secret affair" between the two.
Hugen also testified that she saw hand-shaped bruises on Stacey's wrists, the implication evidently being that Stacey's fiancé Jimmy Fennell was abusing her. Here again, however, Hugen did not say that she divulged this information to Alexander. Even if she had, and even if this disclosure led to Hugen testifying at trial that she had seen hand-shaped bruises on Stacey's wrists, it is doubtful that Reed's jury would have believed Hugen in this regard. Stacey's autopsy did not reveal hand-shaped bruises on her arms or wrists, and we are aware of no other trial witnesses who could have corroborated Hugen's assertion in this regard. Further, hand-shaped bruises would not have alleviated the logistical implausibility of Fennell murdering Stacey, dumping her body in Bastrop, and getting back to Giddings-without the use of his truck-in time for Stacey's mother Carol to rouse him from his apartment. To the level of confidence associated with "reasonable probability," Hugen's information would not have cast the trial in a different light and does not undermine our confidence in the jury's verdict. See Kyles, 514 U.S. at 434.
Turning to Reed's contention that (B) / (C) Ron Haas's and Andrew Cardenas's information was Brady evidence, here again, we conclude that this information was immaterial. The interview summaries collectively show that, at the time of trial, the State ran Ron Haas's information to ground. Haas himself attributed the rumor to Andrew Cardenas, so the State spoke with Cardenas. Cardenas denied ever seeing Reed and Stacey together, but he acknowledged "there were lots of rumors floating around … HEB." He directed the State to Jose Coronado-and the trail fizzled out there. Coronado "never told anyone that Rodney Reed came into HEB and visited with Stacey. Likewise, he never saw [Reed] come into the store and take her out to lunch." According to Coronado, Stacey "was excited about her upcoming marriage to Jimmy Fennel[l] and did not talk about any other men or relationships." All of the witness statements in question were built on rumor and hearsay, and when investigated, they ultimately led nowhere. Further, at trial, Julia Estes testified that she saw Reed and Stacey socializing at the Bastrop H-E-B. The fact that the jury heard this evidence-and convicted Reed anyway-makes it that much harder for Reed to show that the Ron Haas/Andrew Cardenas information would have made a material difference at trial.
That leaves one final item to consider: Reed's contention that (D) Ted Weems's information was Brady evidence. Here, Reed has not shown that the factual basis for this claim could not have been ascertained sooner. See Art. 11.071, § 5(a)(1). Reed attached Brent Sappington's affidavit to his -10 application. At the -10 hearing, Sappington stated in response to habeas counsel's questioning that his father Bill had reached out to Ted Weems in 1996. Reed has not explained why, having obviously spoken with Brent Sappington before he filed his -10 application, he could not have ascertained this information before November 2019.
In sum, even considered in its totality, the bulk of the information that Reed characterizes as Brady evidence cannot be said to be material. Given its limited probativity, the fact that much of it was based on hearsay and/or rumor, and its overlap with evidence that the jury already heard at trial, there is not a reasonable probability that its pretrial disclosure would have led to a different outcome at trial. Because Reed has not made a prima facie showing that he suffered a Brady violation (and because, with reasonable diligence, at least some of this information could have been marshalled in the -10 application), claim one is dismissed as an abuse of the writ under Article 11.071, Section 5.
II. CLAIM TWO: "The State presented false factual testimony at trial."
The use of material false testimony to procure a conviction violates a defendant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In any claim alleging the use of false testimony, a reviewing court must determine: (1) whether the testimony was, in fact, false; and (2) whether the testimony was material. Ukwuachu v. State, 613 S.W.3d 149, 156 (Tex. Crim. App. 2020); see also Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009).
To establish falsity, the record must contain some credible evidence that clearly undermines the evidence adduced at trial, thereby demonstrating that the challenged testimony was, in fact, false. While various types of evidence may serve to demonstrate falsity, the evidence of falsity must be "definitive or highly persuasive." Ukwuachu, 613 S.W.3d at 157. That said, the testimony need not be perjured in the penal-code sense for it to be false in the due-process sense-it is sufficient if, considered in its entirety, the witness's testimony left the jury with a false or misleading impression. See id. at 156. On habeas, the applicant has the burden to show falsity by a preponderance of the evidence. Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015).
As for materiality, the most favorable materiality standard that a false-testimony claimant can avail himself of is the Agurs standard. Under that standard, if there is a "reasonable likelihood" that the false testimony could have affected the jury's judgment, the testimony is material. See United States v. Agurs, 427 U.S. 97, 103 (1976); see also Ex parte Chavez, 371 S.W.3d 200, 206-07 (Tex. Crim. App. 2012). This standard "is equivalent to the standard for constitutional error, which requires the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error … did not contribute to the verdict." Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011) (some punctuation omitted).
Beginning with Reed's contention that (A) Paul Alexander testified falsely, Reed has failed to make a prima facie showing that the allegedly false testimony (i.e., that Alexander played a minor role in the Stites murder investigation) was material. The extent of Alexander's role in the murder investigation was a trivial point in the context of Reed's trial, mentioned once in passing during Alexander's testimony and never brought up again. Beyond a reasonable doubt, this aspect of Alexander's testimony did not contribute to the jury's verdict.
Moving on to Reed's contention that (B) the State gave the jury a false or misleading impression when it cross-examined defense witnesses Julia Estes and Iris Lindley, Reed has "point[ed] to no specific testimony from any witness that actually left the jury with a false impression." See Ukwuachu, 613 S.W.3d at 157. Reed asserts that the State's impeachment efforts were improper, but this Court has previously declined to "sustain a false evidence claim based solely on an allegation of misleading prosecutorial questioning absent some identifiable testimony that was problematic." See id. at 158. As a result, Reed has not made a prima facie showing that a witness testified falsely. The same reasoning applies to Reed's contention that (E) the State's closing argument falsely asserted that Reed and Stacey were not acquainted.
Next, there is Reed's contention that (C) Andrew Cardenas testified falsely or misleadingly when he said that he never personally saw Reed and Stacey socializing at H-E-B. Here, Reed has not made a prima facie showing that Cardenas testified falsely or misleadingly. Cardenas was asked a question about his personal knowledge, and he gave an answer responsive to it. At best, the State's witness interview summary shows that Cardenas (mistakenly) thought he knew of someone who had talked about seeing Reed and Stacey together. It does not show that Cardenas lied to the jury or left the jury with a misleading impression about the facts within his personal knowledge.
That leaves one last item to consider: Reed's contention that (D) Ranger Wardlow testified falsely when he said the year-long investigation into Stacey's death had failed to turn up any "link[s]" between Reed and Stacey. Here, Reed has failed to make a prima facie showing of materiality. The jury already knew that the investigation into Stacey's murder had failed to turn up at least two people who could potentially "link" Reed and Stacey: Defense witnesses Julia Estes (who testified that she had seen them talking at H-E-B) and Iris Lindley (who testified that she had seen someone who looked like Stacey come to the Reed house looking for Rodney). Further, even if the jury heard from Suzan Hugen and learned about the Ron Haas/Andrew Cardenas/Jose Coronado information, there is no reasonable likelihood of a different outcome. None of those individuals could have provided persuasive evidence of a romantic link-a "secret affair"-between Reed and Stacey.
In sum, Reed's complaints about (B) the State's cross-examination of defense witnesses Julia Estes and Iris Lindley, and (E) the State's closing argument, do not fall within the scope of a false-testimony claim. Reed has failed to make a prima facie showing that (C) Andrew Cardenas gave the jury a false or misleading impression. As for the remaining witnesses, (A) Paul Alexander and (D) Rocky Wardlow, Reed has failed to make a prima facie showing that their allegedly false statements were material. That conclusion holds true even when we assess their potential for materiality in the aggregate. Because Reed has not made a prima facie showing that he suffered a due process violation, claim two is dismissed as an abuse of the writ under Article 11.071, Section 5.
III. CLAIM THREE: "The State presented false forensic testimony at trial."
Reed notes that, at trial, the State's experts expressed the following opinions:
• Roberto Bayardo testified, "Based on … changes that occur after death in the body, I make an estimation of the time of death being around 3:00 a.m. on April 23, 1996 … [g]ive or take one or two hours."
• Bayardo testified that Stacey was anally penetrated around the time that she was strangled to death.
• Karen Blakley testified, "Oftentimes one can tell if a bruise is recent just by its color."
• Blakley and Megan Clement testified that spermatozoa break apart after 24-26 hours.
Reed posits that, even at the time of trial, the State's experts' opinions regarding time of death, anal penetration, bruise coloration, and sperm longevity had "no basis in the accepted scientific literature." Reed therefore argues that the State's trial experts gave the jury false or misleading impressions in each of these regards.
Reed points to no post-trial (let alone post-November 2019) advancements in any of these areas. Accordingly, he cannot invoke the Section 5(a)(1) exception for previously unavailable facts. See Art. 11.071, § 5(a)(1). Perhaps understanding this, Reed argues that this claim should proceed past Section 5 because he has shown by a preponderance of the evidence that, but for a violation of the United States Constitution, no rational juror could have found him guilty. See id. § 5(a)(2). Reed therefore asserts that, because he has already proven that he is more-likely-than-not innocent of Stacey's murder, this Court should consider this claim on its merits.
As we explained in our opinion disposing of Reed's -10 application, Reed has not met his burden under Section 5(a)(2) to demonstrate by a preponderance of the evidence that he is actually innocent of Stacey's murder. Reed presents no new evidence of innocence in his -11 application. Accordingly, Reed's "false forensic testimony" claim does not satisfy Section 5(a)(2). Claim three is dismissed as an abuse of the writ under Article 11.071, Section 5.
Reed's tenth subsequent (-11) 11.071 application is dismissed under Article 11.071, Section 5.
IT IS SO ORDERED THIS THE 28TH DAY OF JUNE, 2023