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Cause # 14-15-00145-CR
The State of Texas Fourteenth Court of Appeals
vs
David Earl Sweed Houston, Texas 77002
Case # 14-907
Motion for Correction of Remediable Errors
Texas Rule of Appellate Procedure Rule 44.4/ (Abate)
Comes now, Movant, David Rarl Sweed, Pro-se, to file this his motion for corr-
correction of remediable errors in order to draft a true and correct brief for
DNA testina in order to prove my innocence. The Prosecution has not released
all drafts, reports, or copies of medical examinations as well as a copy of
Mary Laskoskie the investigator for Washington County report and recording.
Through the preponderance of the evidence in the Reporter's Record(RR) Volume
3, page 13, Line 1-5; Lines 1-2 stated, an opportunity to meet someone by the
name of Jerline Griffin or Jerline Blanding on February 8, 2007, A- (Line 3)
Yes, I did. 0- (Line 4) And where did that meeting happen? Q- (Line 5) Me
and Investigator Hane drove to Round.Rock to meet with her at her residence.
A- (Lino 9-10) After speaking with her it confirmed a lot of ;he information
that we already had.
She went Into details: I, Movant, request a copy of this information Mrs.
Laskoskie already had and a copy of the details Jerline Griffin/Blanding wnt
into.; A- (Line 19) Then we set up an appointment with Scotty's House, which
is a Child Advocacy Center, in Bryan. A- (RR Pg 15, Line 14) All of the female
children were interviewed, by Nick Canto who is the forensic interviewer down
there at Scotty's House. T request copies of all of the female interviews con
ducted that day. Q- (RR Pg 15, Line 20) Okay and. when you say examination, are
you talking, (Line 21) about a sexual assault examination? I request a copy
of SANE Nurse examination, a copy of the report on the condition of the hymen,
as well as copies of :he results of the colposcope test- A- (RR Volume 3, Pg
16, Line 4-5) After the interview with Mr Canto at Scotty's House the evi
dence that was presented originally; I request a copy of this original evi
dence Mary Laskoskie is speaking of on Lines 4 and 5. (RR Vol 3 Pg 18, Line
16-25); Cross-examination by Mr. Glover of Mrs, Laskoskie. I request a copy of
the interview with Williamson County that is referred to on Line 24; Also, I
request to review the tape referred to on Line 20 of Page 20; I request a copy
of the Incident Report referred to on Page:: 22, Lines 15 & 16; On Page 23,
Lines 1-25 I request a copy of the tape to review that was done in Williamson
County referred to on Lines 24-25 by Mr. Glover to Investigator Laskoskie;
Cross-examination by Mr. Glover of Tierika Griffin on RR Volume 3 Page 85,
Lines 21-25.
Fed. R. App. Proc. 37.01(3) Definitions; "Statement" means any representation
of fact. "The jury took these panties as a fact." ViT.C.A. Penal Code §32.21
also §32.21(a)(2) "Forgery" is any form of intent to defraud or intent to harm
as harm is defined, by §1.07(a)(25) (Chapter 1) §1.07(9)(C) to accuse a person
of any offense. (T.P.C.) Sec 37.03 & 71.01(b) Perjury-by false record and
37.09(a)(2), Tampering with or Fabricating Physical evidence, also 36.05(a)(2)
Tampering with witness/coerces a witness. The test of colposcope will prove
the above violation.
Page 1 of 2
Direct examination by Ms. Muller of Jerline Renee Griffin. (RR Volume 4, Page
15, Lines 13-24, on Line 21) checked Tierika's stuff and Tierika had discharge
in her panties; I request D.N.A. testing of the panties referred to on Line 21
to identify by name the substance in the panties and do the DNA match Tierika's
only or others besides Tierika. A- (Volume 4, Pg 16, Line 24-25) Jerline an
swers; First I got the Round Rock Police Department involved in it rind I took
her to the doctor. Like I took her like two to three times; I, Movant, request
a copy of the doctor's report referred to on Lines 24-25.
Cross-examination by Mr. Glover of Jerline Griffin Q- (RR Volume 4 Pg 22,
Lines 9-25) Q- (Lines 9-10) Did the investigator do a written statement? A-
(Line 10) Yes. Yes, Sir; I, Movant, request a copy of this statment referred
to on Lines 9 and 10; Same on Lines 17-23 a copy of whatever the investigator
was writing down at this point proffer on Lines 21, 22, and 23; also a copy of
the report the hospital gave Williamson Police Department of three times Jerline
took Tierika to the doctor; The D.N.A. testing of the panties with the records
requested above can prove my innocence.
UNSWORN DECLARATION
I, Movant, David Earl Swee, #01457548, being incarcerated at the Nathaniel Neal
Unit in Potter County, Texas declare under penalty of perjury according to my
knoledge the foregoing is true and correct. /] / //
Executed on this 3 day of Cj/MJAl ,2015 /Jit/g/Cg^/AjcWt/fl/fS/} ^O
0 David Earl Sweed. #01457548
CERTIFICATE OF SERVICE
I, Movant, David Earl Sweed, hereby certify that I cause to be served one true
and correct copy of this Motion on the Fourteenth Court of Appeals by First
Class U.S. Mail at 301 Fannin Street, Suite 245, Houston, TX 77002 of the
above Motion for Correction of Remediable Errors Under Rule 44.4.
Signed this J day of (U^/m , 2015
Respectfully Submitted
David Earl Sweed TDCJ I 01457548
9055 Spur 591, Neal Unit
Amarillo, Texas 79107-9696
PRAYER:
Movant humbly prays that this honorable Court grant the above Motion so that
justice may be served, and that my innocence be proven.
Signed this 3 day of du^Sdl • 2015
Respectfully Submitted, /J/Lw£l*/AcwJ &MS*? $!j £
David Earl Sweed TDCJ #01457548
9055 Spur 591, Neal Unit
Amarillo, Texas 79107-9696
Page 2 of 2
SWORN AFFIDAVIT
I, / f\j//lAA^ ->u/ "ty 9being duly sworn declare under penalty of
perjury that the foregoing instrument is true and correct: I am a witness to the following truth.
At no time did Tierika Griffin come to me Truman Sweed and show me her leg bleeding with a
cut of any kind and I put a bandage over the cut; Never,' did this happen. As to what she testified
in court, it is just not true.
Respectively Submitted
OATH BEFORE NOTARY PUBLIC
State of Texas, County of Gr (L>j rv? ^ _ being duly sworn
under oath says that he is the applicant in the statement above and knows the content of the
statement according to this belief and personal knowledge of the fact stated in the above
statement is true and correct.
/^ffitte^M^submitted
Subscribed andjswcigi td^gfererffte t|is Z ^tdL day of <3~2tf (5th CIR. 2001); CASTELLANO
vs. FRAGOZO, 352, F.3d. 939 (5th CIR. 2003). THE RELIEF SOUGHT IS DUE THE PETITIONER UNDER TiiE
LEGAL CONTROLLING PRINCIPLES GUARANTEED UNDER TfiB 5th, 6th, & 14th AMEND. OF THE U.S. CONST.
WHICH INSTRUCTS THUS: STATEMENT(S) THAT ARE KNOWINGLY FALSE/ EXHIBIT A RECKLESS DISREGARD FOR
THE TRUTH, MUST NOT BE USED BY THE MAGISTRATE JUDGE TO DETERMINE PROVABLE CAUSS, Id at 171, a7.
PETITIONER FURTHER CONTENDS THAT TiiE FALSE STATEMENTS MADE BY KS. JERILIR GRIFFIN liAS imSUUTED
IN HIS BEING DEPRIVED OF HIS LIBERTY BY VIRTUE OF A FALSE IMPRISONMENT ACT IMPObfiD UPON BIS
PERSON BY THE STATE. SEE TEXAS CONSTITUTION, ARTICLE 3, § 51-C. jy$tfL JvdWcJCAm&W&W
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RE: 14-15-00145-CR
David Earl Sweed
#01457548
NeaJUnit
Mailroom
9055 Spur 591
.',*&•
Amarillo, TX 79107
Tammy Brauner Exhibit <2~> OUSTON
District Clerk W3f\ us- POSTAGE»PITNEY BOWES
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Washington County
100 East Main Street PM '9 1.
Suite 304 §£I £ptt833 $000.48°
Brenham, Texas 77833-3753
R/V) 0001401933 JUL 08 2015
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SUBJECT: State briefly the problem on which you desire assistance.
'JEMIMA ''/iwy/*/*/*/. . / 7
Name Ijg^cJC$MM>id N o 0/#$4Mt Unit: A %k^_
Living Quarters; L; /i / Vvi_rk ," aignment
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Inst. No. 17339 File No. 0/9784
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Birth *. Child
Death ., a. Name APRIL DESHAUN GRIFFI
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Date Of Birth 4/1/1982 Sex
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Father
Mother
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Birth Child
Deatri'MilliljSs Name JERLINE RENA GRIFFIN
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Date Of Birth 11/14/1978 Sex
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Mother
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Certificate of Service
xoneIJa/«df'd*Aefi*( humbly request permission from the court to serve
original copyto the clerk of the court in order to make the necessary copiesto be served
upon the appropriate parties, whom will participate in the hearing.
Respectively Submitted,
David Earl Sweed, #01457548
Nathaniel J. Neal Unit
9055 Spur 591
Amarillo, Texas 79107
Court of Criminal Appeals
Of Texas
P;0-. Box 12308
Austin, Texas 78711
David E. Sweed Civil Action No
petitioner A-10-CA-393-LY
V.
William Stephens
Director of TDCJ- Respondent
MOTION FOR RECONSIDERATION
Pursuant to Fed. R. Civ. P. -28§2244(c)(d)(1)(2)
; 28§2254(«)(d)(l)(2)
Now comes David E. Sweed, petitioner, in the above numbered
cause, brings this his Motion for Reconsideration pursuant to
Fed. R. Civ... P.-28§2244 and will show the Court the .following:
28§2254(*Xd)(l)(2)
1-)
Pursuant to slack v. McDaniel, 529 U.S. 473,484 120-S.CT.1587,
146 L. Ed. 2d. 542 (2000) at 1604, a slightly different standard
applies when claims are dismissed on procedural grounds; in that
instance a petitioner must show, at least, that jurists of reason
would find it debatable, whether the petition states a valid claim
of the denial of a constitutional right, and that jurists^df :
reason would find it debatable whether the district court was
correct in its procedural ruling (emphasis added).
Petitioner maintains his Actual innocence and will proceed to
show the Gourt mitigating facts that stemmed/existed from the very
beginning of the case, petitioner alleged that Counsel failed to
properly investigate the alleged crime scene, the alleged victim
testified that petitioner had only abused her one time that she
could remember and what she remembered was petitioner had taken
her into the garage of his home located at 19021 Sweed Road in
the city of Washington, Washington County Texas.
The alleged victim testified that petitioner had held her
down with one hand and used the remote-control garage door opener
to close and lock the doorT
Petitioner insisted that counsel go to., the home where he
would discover the garage at the residence does not operate with
a [garage door opener] as testified to by the alleged victim.
To support this claim petitioner presents newly discovered evidence
that supports previously submitted evidence that counsel suppressed/or
failed to disclose/or investigate.
2.)
Petitioner asserts that consel could have never presented a sound
trial defense, where he failed to disclose exculpatory, mitigating
favorable^evidence, evidence that he could have used to impeach,
&M Or prdve bias, Or interests of witnesses relevant to the credibility
thereof, violating petitioner s 5th, 6th, 14th U.S. Constitutional
Rights.
I'
Peffioner points the courts attention to the record but reminds the court he is not
entitled to fie record, so he relies solely on his memory.
Thestates witness alleged with certainty not doubt that petitioner had held her down
with one hand and used the remote garage door opener to open then close and lock the
door. Thedoor is approximately 7 feet in height and he would most certainly have to use two
hands to bing the door down.
However, evidence clearly suggests he used a garage door opener where one has
never existed.
As ^petitioner stated, counsel could have never presented him with a sound trial defense
that allows! petitioner to be convicted by insufficient evidence.
3.)
Material evidence favorable to defendant has been discovered since and/or during trial
but too lafe to raise at trial, investigate, or marshal evidence thereon. New trial should be
granted underT.C.C.P. sec.40.001.
Dm process due course of law and equal protection require granting a new trial under
such circunstances, see U.S. Constitutional Amendments 5, 6, 9, 10, and 14 Tex. Const. Arts.
- 1 sec. 11, 13, and 19 T.C.C.P. Arts. 1.04, further the evidence is mitigating: see Milburn v.
State, 154W. 2d.267 (Tex. App.-Hou [14th] 2000) No Pet; State v. Gonzales, 855 S.W. 2d.692
(Tex. Cr. App. 1993). Moreover, the new evidence 1.) was unknown or unavailable to
defendant at the time of trial or too late during trial to use, investigate or marshal needed
evidence (Ei 2.) is admissible and not merely cumulative, corroborative, collateral or impeaching
3.) the new evidence is probably true and would probably bring about a different result on
another triil, and 4.) failure to discover or obtain same was not due to a lack of diligence.
[Cainsel] suppressed facts or secreted witnesses capable of establishing petitioner's
innocenceT.C.C.P. Arts. 2.01 and 2.02 Duggan v. State, 778 S.W. 2d. 465,468 (Tex. Cr. App.
1989); Roageau v. State, 738 S.W. 2d 651,657 (Tex. Cr. App, 1987) over-ruled on other
grounds, Harris v. State, 784 S.W. 2d. 5(Tex. Cr. App. 1989). Also see Brady v. Maryland and
its Federaiand Texas progeny. This includes evidence favorable to the accused, exculpatory,
impeachinj, showing bias or interest of, witnesses relevant to the credibility thereof or
otherwise elevant or helpful to cross-examine and/or confront such witnesses and inculpatory
evidence, a>r mitigating of the degree or the offense or punishment. Brady Supra, U.S. v.
Bagley, 4B U.S. 667 (1985); Pennsylvania v. Ritchie, 480 U.S. 39,107 S. CT. 989 (1987);
Kyles v. WAitley, 115-S.CT. 1555 (1995).
Pefiioner asserts that tenable actual innocence-gateway pleas are rare, and a petitioner
does not inset the threshold requirements "unless" he persuades a district court that, in light of
the new eiidence, no juror, acting reasonably would have voted to find him guilty beyond a
reasonable doubt. Mcquiggin v. Perkins, 185 L. Ed. 2d-1019; (2013), The United States
Supreme Court has recognized that a prisoner otherwise subject to defenses of abusive or
successive use of the writ of habeas corpus may have his federal constitutional claim
consideredon the merits if he makes a proper showing of actual innocence. In other words, a
credible showing of actual innocence may allow prisoner to pursue his constitutional claim on
the merits rot withstanding the existence of a procedural bar to relief.
\
Petitioner presents eight (8) Exhibits marked A - H photographs of the alleged crime
scene garage located at 19021 Sweed Road. The photos are evidence of the garage externally
and internally as it appears in its original state. Each photo is marked on the reverse.
Chronological Order of Relevant facts:
1. The home was originally built for petitioner's parents in 1996.
2. The home was completed in the year of 1997.
3. Petitioner moved into the home that same year.
4. The [garage] of the home was never fully completed, see: Exhibit A is the exterior of
the garage door (there is "no" locking device installed on the door). The panels have
not been disturbed; the bottom right hand corner of the door is (recently sustained
damage).
In Exhibit B the Court will notice there is a young individual standing in the photo, and
the Court should view Exhibits E, F, G, H as the young individual is demonstrating that the
garage door is opened "manually" and not by a remote-control garage door opener as it
was testified by the States key witness/alleged victim.
In petitioner's Exhibit D, the photo shows what contractors call the overhead header of
the garage door from the interior view. As the Court views Exhibit D it will notice that the photo's
center has an ink drawn box; this box indicates the never installed center bracket that aids
holding a spring loaded tension bar that aids in raising and lowering the garage door. The
tension bar extends left to right across the top of the door; it was never installed.
In Exhibits G and H it is being demonstrated that there is a 2x4 board attached to the
ceiling of the garage serving as a (bumper) of sorts to prevent the door from coming off the
track and crashing down. See Exhibit G. If a garage door opener had been installed there
would be no need for the 2x4 or 1x4.
In Exhibit H notice there is a second board 1x4 plank attached to the ceiling, attached to
serve as a pressure brake support that applies pressure to the door upwards holding the door in
position with the aid of the young individual. As the Court can see by the Exhibits there is "no"
garage door opener or lock on this door. Exhibit C, internal side of the door, shows there is
no locking device on this door. As petitioner has claimed from the very beginning, this incident
never occurred.
Petitioner also presents three (3) additional sworn affidavits from three individuals
labeled Exhibits i, J, K.L (Exhibit L. House-address & Garage Apt., 19021
Sweed Road, Washington Texas 77880)
1. Raven Anderson, who was raised in this very home, has resided in the home to the
present date, and is a credible outstanding citizen in her community
2. Truman Sweed is petitioner's brother who assisted in the building of the home and is a
General Contractor.
3. Marilyn Smith is petitioner's sister who has resided in the home, but is now living in
Harris County.
All of these witnesses including witnesses who submitted affidavits back in 2010 could provide
accurate testimony as to the type of home the residence is and its overall condition.
H
This rule, or fundamental miscarriage of justice exception, is grounds in the equitable
discretion of habfas courts to see that federal constitutional errors do result in the incarceration
of innocent persons.
Petitionerhas asserted that he is actually innocent of this offense and maintains his
innocence that has resulted in a [Miscarriage of Justice] as his counsel refused to establish the
facts supporting.fetitioner's innocence.
The United States Supreme Court has applied the miscarriage of justice exception to
overcome various procedural defaults . . .
Petitionerbelieves that had the jurors heard the testimony from the witnesses writing the
sworn affidavits, saw the photo exhibits of the alleged garage/location of assault, and/or were
allowed to hear lie states witness Jerlin Griffin testify during cross-examination as to why she
hates the entireSweed family which the Trial Court suppressed, surely the jurors would have
determined thatiiis witness was in fact bias and had a personal interest to prejudice petitioner.
It is quite clear Jiat the states star witness Teiraka Griffin was coached into saying what she
said due to one fact that even a ten year old child surely would remember without incident
whether the gaage door opened manually or by remote control had he/she been to the
residence she/heclaimed an assault had occurred. It is obvious the states witness Jerlin Griffin
had not been tothe home and assumed it had a garage door opener as the garage does look
modern and updited from the outside of the residence, but someone who has never frequented
the home/resideice would not have knowledge of a garage door opener not existing. . .would
incriminate himsdf as the witness has done in this instance.
Petitioner asserts that without "DNA" evidence such as a rape kit having been
conducted and or collected, coupled with the photos presented, it is insufficient to warrant guilt
because the tesinony is not corroborated by the facts. Surely the mitigating evidence would
leave a reasona'He jury to debate over the facts and/or truthfulness of the witnesses and would
conclude a different outcome where he has presented adequate, sufficient evidence
establishing his actual innocence and it should warrant encouragement to proceed further,
Miller-El v. Cockell, 537 U.S. 322,327,123 S.CT 1597-at 1604 (2000).
The evidence/Photo Exhibits and Sworn Affidavits are very damaging to the case, the
story and the fafe contradict themselves, and the same thing that convicts you can also prove
your innocence.
Prayer
Petitioner prays that this Honorable Court grants him relief by granting him this his
Motion for ConsUeration to proceed further and knows that a Miscarriage of Justice has
occurred by denjng him of Actual Innocence where there exists no scientific DNA biological
evidence, and the states star witness' testimony has been compromised to great lengths by not
collaborating witothe facts/established evidence.
Petitionerhas claimed from the very beginning Counsel failed/refused to disclose the
favorable/mitigatirg evidence to the jury and/or properly investigate his innocence.
Exhibit L
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
David E. Sweed DECLARATION
Plaintiff David E. Sweed
Civil Action No.
v. ,- A-10-CA-393-LY
STAtt:
OF
I David E. Sweed, hereby declare under no threat or force or promise has any of the Affidavits
been presented obtained by the petitioner. Each affidavit was voluntarily submitted.
All photos/Exhibits are of the alleged assault location (garage) located at 19021 Sweed Road in
the city of Washington, Washington County, Texas and are in their original state. The scene
has not been altered or manipulated in any way for the exception of natural wear and tear.
I hereby declare under penalty of perjury that th^*- "egoing is true and correct.
Executed:. , at the'Neal Unit, 9055 Spur 591, Amarillo, TX 79107.
'",ID #04457548
SUBJECT state briefly the problem on which you desire ass.stance.
Name: A^±^lt"Z^€£^
Living Quarters: j2_2<2^_
DISPOSITION: (Inmate will not write in this space) .
97th>
I-60 (Rev. 11-90)
DAVID EARL SWEED 01457548 KN O 39 ID:79389114 [P 2/3]
tJfi&Y
From: Raven T Anderson, CustomerlD: 3840301
To (Inmate): DAVID EARL SWEED, ID: 01457548
Date : 2/26/2014 5:18:51 PM EST, Letter ID: 79389114
Location : KN
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SWORN AFFIDAVIT
% being duly sworn,
under oath says that he/she is the applicant in the statement above
and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is
true and correct.
ctfully Submitted,
SUBSCRIBED AND SWORN TO BEFORE ME THIS 2Q_day of ,hftUfru,
signature of Notary Public
tx hi'bd~r ^J_<
SWORN AFFIDAVIT
I tR^sHA"^ ^>c^' F"& j being duly sworn declare under
penalty of perjury that the foregoing instrument is true and correct.
I am a witness to the following truth. The garage door at the
Sweed residence does not operate by an electronic door opener. The
residence has never had any electronic door opener during the time
Mr. David Earl Sweed has resided at the residence located at 19021
Sweed-Road, in".the City of Washington, Washington County, Texas
77880. And does not have an electronic garage door opener, •;. Along
with these pictures as evidence showing no remote opening the garage
door. At the residence above.
Respectfully Submitted,
OATH BEFORE NOTARY REPUBLIC
State of Texas :ounty of 'OCal-D*^
Co being duly sworn,
under oath says that he/she is the applicant in the statement above
and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is
true and correct.
Respectfully Submitted,
SUBSCRIBED AND .SWORN TO. BEFORE ME TH is P^day of Qcxbimi -,
go/4 .
"fjS?lAUJWNS0N Signature of No^try Public
Zxhrb^ .. K (
SWORN AFFIDAVIT
I J\K&^r<> V* t\ "W^-nV^X , being duly sworn declare under
penalty of perjury that the foregoing instrument is true and correct.
I am a witness to the following truth. The garage door at the
Sweed residence does not operate by an electronic door opener. The
residence has never had any electronic door opener during the time
Mr. David Earl Sweed has resided at the residence located at 19021
Sweed-Road, in "the City of Washington, Washington County, Texas
77880. And does not have an electronic garage door opener.' ":•.'. Along
with these pictures as evidence showing no remote opening the garage
door. At the residence above.
Respectfully Submitted
frtfr lion's otjT-^
OATH BEFORE NOTARY REPUBLIC
State of Texas County of fl/fyfy+s^l being duly sworn,
under oath says that he/she is the applicant in the statement above
and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is
true and correct.
R p sp pc f, full y Submitted,
b^FF //o ?? *77 7X
SUBSCRIBED AND SWORN TO BEFORE ME THIS ^9^ day of ft/fr-
Zalii
of Notary Public
1- =
O: =
be
Certificate of Service
I hereby certify that a true and correct original typed Motion for Reconsideration with eight
(8) Photo Exhibits and three (3) Sworn 'Affidavits and one (1) Declaration of Truth has been pre-
postage paid and mailed to the U.S. District Clerk at 200 West 8th Street, Room 130, Austin, TX-
78701.
Onthisthe 2__day
J^ day of /Laa/jj'L/'
/Loa/jjM &Q OJJ'/-W
-> */ fle&35%4-.—
Respectively Submitted,
David E. Sweed, #01457548
Neal Unit
9055 Spur 591
Amarillo, Texas 79107
SWEED E. D.
To File.