Pruett, Robert Lynn ( 2015 )

WR-62,099-05
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/21/2015 9:32:33 PM
Accepted 4/22/2015 8:33:07 AM
ABEL ACOSTA
Cause Number WR-62,099-05 CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
4/22/2015
Ex Parte Robert Lynn Pruett ABEL ACOSTA, CLERK
State’s Response
to Application for Writ of Habeas Corpus
and
Motion for Stay of Execution
On Appeal in Cause Number B-01-M015-0-PR-B
From the 156th District Court of Bee County, Texas
CAPITAL MURDER CASE
EXECUTION DATE SET FOR APRIL 28, 2015
Melinda Fletcher
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.367.9407
Fax 866.923.9253
mfletcher@sputexas.org
Table of Contents
Index of Authorities .................................. 3
Statement of the Case ................................. 4
Statement of Facts .................................... 5
Summary of the Argument ............................... 7
Argument .............................................. 8
Pruett’s authority specifically excludes physical
matches through fiber analysis, as was performed in
this case. Article 11.073 of the Texas Code of
Criminal Procedure does not operate to grant Pruett
relief under the facts of this case. ................. 8
Prayer ............................................... 14
Certificate of Compliance ............................ 15
Certificate of Service ............................... 15
WR-62,099-05 State’s Response pg. 2
Index of Authorities
Texas State Case Law
Pruett v. State, 2004 WL 3093232(Tex. Crim. App. 2004) ....................... 11, 12
Texas Code of Criminal Procedure
Article 11.071 ....................................... 13
Article 11.073 ................................... passim
Other Authorities
Strengthening Forensic Science in the United States:
A Path Forward (National Academies Press
2009) ......................................... 9, 10
WR-62,099-05 State’s Response pg. 3
Cause Number WR-62,099-05
Ex Parte Robert Lynn Pruett
To the Honorable Judges of the Court of Criminal Appeals:
Respondent, the State of Texas, respectfully
presents this response in opposition to the granting of
a Motion for Stay of Execution or a Writ of Habeas Corpus
to Robert Lynn Pruett. Pruett’s authorities for relief
do not apply to the facts of this case.
Statement of the Case
Pruett is scheduled to be executed on April 28, 2015.
He seeks a stay of execution and a writ of habeas corpus,
alleging that the testimony of the DPS Lab expert
regarding the match of two pieces of masking tape is
“junk” science and that it has been discredited. He
asserts that the discredited evidence, combined with
evidence of a conspiracy to kill Nagle and frame Pruett,
WR-62,099-05 State’s Response pg. 4
would have probably resulted in a different outcome. The
State opposes the writ and the stay of execution.
Statement of Facts
On April 23, 2002, Pruett was convicted of capital
murder. The weapon found at the murder scene was a steel
rod, about seven inches long. It was sharpened to a point
on one end and the other end was wrapped in masking tape.
(R.R. 42:275-276) Offender Jimmy Mullican testified that
he was standing outside the craft shop on December 17,
1999, when offender Phillips, who was inside the craft
shop, asked him to pass some masking tape on to Pruett.
(R.R. 42:204) The tape was rolled onto the handle of a
toothbrush. (R.R. 42:205) Offender Mullican slid it under
the door of the multipurpose room. (R.R. 42:205)
Lisa Harmen Baylor, who is employed in the Texas
Department of Public Safety crime lab in Corpus Christi,
was responsible for collecting and processing the
physical evidence. (R.R. 42:296) Baylor examined over
fifty rolls of masking tape and was able to match the end
WR-62,099-05 State’s Response pg. 5
of the masking tape wrapped around the weapon to the end
of a roll of masking tape found in offender Phillips’
locked work station in the craft room. (R.R. 42:279, 338-
339)
The DPS lab has guidelines to be followed in order
to do a physical match comparison for things such as torn
tape. (RR 4:307, 313) The DPS guidelines include
standards and controls in order to insure consistency and
accuracy. (RR 4:307) Baylor followed DPS’s guidelines.
(RR 4:308) She has studied using patterns as a method of
matching items that were at one time connected. (RR
4:308) She also relied on an article entitled “Fractal
Surfaces as Models of Physical Matches.” (RR 4:308)
Baylor looked at approximately 56 rolls of tape in
this case. (RR 4:309-310) She catalogued all of the
physical characteristics of each roll. (RR 4:309) She
then compared the rolls to the tape found on the weapon.
(RR 4:309) Some rolls were quickly eliminated by gross
features, such as being too wide, too thin, or the wrong
color. (RR 4:310) Using a stereoscope, her FBI and DPS
WR-62,099-05 State’s Response pg. 6
training, and DPS’s procedures, Baylor ultimately
eliminated all but one roll of tape. (RR 4:310, 316) A
senior analyst then went behind Baylor, checked her work,
and arrived at the same conclusion. (RR 4:312) The match
was accurate and precise enough that Baylor considered
it reliable. (RR 4:311)
Baylor performed a physical comparison, or “jigsaw
match”, between the tape from a roll of masking tape and
the tape that was taken off of the weapon. (RR 4:338) She
determined that the tape from the weapon came off of a
particular roll of masking tape, which had been recovered
from offender Phillips’s work station in the craft shop.
(RR 4:279, 339)
Summary of the Argument
Pruett asserts that he has an authority holding that
the physical matching of two pieces of masking tape is
“junk science” and is unreliable. In fact, Purett’s
authority specifically excludes talking about physical
WR-62,099-05 State’s Response pg. 7
matching through fiber analysis, such as was done in this
case.
Article 11.073 does not apply to the facts of this
case, and so Pruett should be denied the relief he seeks.
Argument
Pruett’s authority specifically excludes physical matches
through fiber analysis, as was performed in this case.
Article 11.073 of the Texas Code of Criminal Procedure
does not operate to grant Pruett relief under the facts of
this case.
Article 11.073 grants relief to a person when (1)
there is relevant scientific evidence that was not
available to be offered at the time of trial, and (2) the
court makes the finding that if the scientific evidence
had been presented at trial, on the preponderance of the
evidence the person would not have been convicted. Tex.
Code Crim. Proc. Art. 11.073.
WR-62,099-05 State’s Response pg. 8
Pruett’s writ asserts that “it is likely that Pruett
would not have been convicted had his jurors been
presented with the finding of the 2009 NAS report which
describes the ‘science’ of physical match comparisons.”
(See p. 16 of Pruett’s writ.) He also quotes from the
introduction of the National Research Council’s Committee
on Identifying Needs of Forensic Science Community,
Strengthening Forensic Science in the United States: A
Path Forward (National Academies Press 2009), and uses
that as his authority for this writ.
However, Pruett does not disclose to this Court the
portion of Chapter 6 of that same book, where it talks
about Analysis of Fiber Evidence, and states:
Another type of fiber analysis consists of
physically matching two remnants that appear to
be torn from one another. By comparing the shapes
of the matching edges, and aligning any patterns
in the cloth, it can sometimes be possible to
associate a fragment with the garment or other
item from which it was torn. This is a form of
pattern matching, analogous to the matching of
shoe and tire prints, but it will not be
discussed further here.
WR-62,099-05 State’s Response pg. 9
Strengthening Forensic Science in the United States: A
Path Forward, p. 162, emphases added. 1
Pruett’s sole authority specifically states that it
does not include the type of matching performed in this
case and of which Pruett now complains. His authority
does not proclaim the pattern matching in this case to
be “junk” science. Nor does it discredit the pattern
matching used in this case, as Pruett asserts. Because
the report does not include the procedure used in
Pruett’s case, there is no rational argument that the
introduction of this report would have probably resulted
in a different result at trial. For this reason alone,
Pruett should be denied the relief he seeks.
As he has repeatedly done in the past, Pruett also
throws in his conspiracy theory as a ground for relief.
He does not have proof to support his theory. Further,
this Court has already considered the admissibility of
this defense and found that the trial court did not abuse
1 A free download of this full report is available at
http://www.nap.edu/catalog/12589/strengthening-forensic-science-in-the-
united-states-a-path-forward
WR-62,099-05 State’s Response pg. 10
its discretion when it excluded the evidence. See Pruett
v. State, 2004 WL 3093232, at *3 (Tex. Crim. App. 2004).
This Court wrote:
In his fourth point of error, the appellant again
argues that the trial court denied him the
fundamental constitutional right to present a
meaningful defense. He specifically complains
that the trial court erroneously excluded
evidence “that Nagle's death may have been
related to an investigation involving
correctional officers smuggling contraband into
the prison.
Defense counsel informed the trial court outside
the presence of the jury that he wanted to
question Thomas J. Prasifka, the warden of the
McConnell prison unit, about “the fact that
there were 30 or more officers indicted for
smuggling dope into the prison and that Officer
Nagle may have actually ratted some of them out.”
Defense counsel argued that this evidence was
necessary to show that “[t]here was a motive for
the gang members who were getting the drugs to
kill Mr. Nagle, and there was a motive for
corrupt guards to kill Mr. Nagle.” Defense
counsel questioned Prasifka outside the jury's
presence to determine if Nagle had any
involvement in the investigation of the indicted
correctional officers. Prasifka testified that
Nagle did not act as an informant and had no
involvement in the investigation. The trial
court refused to permit defense counsel to
pursue this line of questioning with Prasifka in
front of the jury.
Defense counsel failed to produce any evidence
in support of his speculative theory that Nagle
was killed in retaliation for acting as an
informant against his fellow correctional
WR-62,099-05 State’s Response pg. 11
officers. As this court noted in Wiley v. State,
“The danger of ‘confusion of the issues' and
‘misleading the jury’ arises when circumstantial
evidence tends to sidetrack the jury into
consideration of factual disputes only
tangentially related to facts at issue in the
current case.” Prasifka denied that Nagle had
any involvement in the investigation. Allowing
the appellant to explore this issue without
further evidence and in the face of Prasifka's
denial of a link between Nagle and the
investigation would serve no purpose but to
“confus[e] the issues” and “mislead[ ] the
jury.” The trial court did not abuse its
discretion in refusing to permit defense counsel
to question Prasifka about this issue in front
of the jury. Point of error four is overruled.
Id., internal footnotes omitted.
Additionally, Article 11.073 only applies to
“relevant scientific evidence” that was not available to
be offered by a convicted person at the convicted
person's trial or that contradicts scientific evidence
relied on by the state at trial. Pruett has not produced
any “relevant scientific evidence” to this Court, and so
Article 11.073 does not operate to give him any relief.
Lastly, the authority Pruett cites was published in
2009. Article 11.073, the statute that he relies upon,
was passed in 2013. Pruett has filed multiple writs since
those dates, in which he could have raised these issues.
WR-62,099-05 State’s Response pg. 12
Failing to do so, he does not now have a statutory right
to raise the issue at this very late date. See Tex. Code
Crim. Proc. Art. 11.073 (c) and (d).
Article 11.071 provides that subsequent applications
for writs of habeas corpus may only be considered when
there is sufficient specific facts establishing that the
current claims and issues have not been and could not
have been presented previously. Tex. Code Crim. Proc.
Art. 11.071 Sec. 5(a)(1). Article 11.073 provides that
subsequent writs may only be considered if the claim or
issue is based on relevant scientific evidence that was
not ascertainable through exercise of reasonable
diligence on or before the date on which the original
application or a previous considered application was
filed. Tex. Code Crim. Proc. Art. 11.073 (c). Pruett’s
current claim is not relevant scientific evidence, but
it could have been presented in any of the previous
applications he has filed since September 1, 2013, the
effective date of Article 11.073.
WR-62,099-05 State’s Response pg. 13
The current claim is not timely, is not covered by
Article 11.073, and it has no supporting authority.
Prayer
Because there is no new evidence, no finding that
the old evidence was unreliable, and no legal avenue for
relief, the State prays that this Honorable Court deny
Pruett’s Motion for Stay of Execution and his Writ of
Habeas Corpus.
Respectfully Submitted,
/s/ Melinda Fletcher
Melinda Fletcher
Appellate Attorney
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.367.9407
Fax 866.923.9253
mfletcher@sputexas.org
WR-62,099-05 State’s Response pg. 14
Certificate of Compliance
I hereby certify that, according to Microsoft Word,
this response contains a total of only 2139 words. The
length of this document is in compliance with the Texas
Rules of Appellate Procedure.
/s/ Melinda Fletcher
Melinda Fletcher
Certificate of Service
I hereby certify that a true and correct copy of the
foregoing Brief for the State was served on David Dow and
Jeff Newberry, the attorneys for Pruett, and Assistant
Attorney General Jay Clendenin via electronic mail on
this the 22nd day of April, 2015.
/s/ Melinda Fletcher
Melinda Fletcher
WR-62,099-05 State’s Response pg. 15