Reed, Rodney

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RODNEY REED )
vs. j
STATE OF TEXAS ) 2151 JUDICIAL DISTRICT
) OF BASTROP COUNTY, TEXAS
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NOTICE OF APPEAL
at the time of imaging.
FILED IN
COURT OF CRIMINALAPPEALS
To The Honorable District Judge:
JAN 16 2015:
On January 6, 2015 and under Rule 25.2 of the Texas Rules of Appellate
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Procedure, Rodney Reed, Defendant and Movant m the above styled case, hks thts'
written notice with the clerk of this court that defendant intends to appeal to the Texas
Court of Criminal Appeals as provided under Article 64.05 of the Code of Criminal
Procedure. This appeal is from the written order denying Reed's Motion for DNA
Testing signed on December 12, 2014. A copy of this Order is attached as Exhibit 1.
Respectfully submitted,
Bryce Benjet
State Bar No. 24006829
THE INNOCENCE PROJECT
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40 Worth St.·
New York, NY 10013
(212) 364-5340
(212) 364-5341 fax
JAN 1 2 ZG~S
AITORNEYS FOR RODNEY REED
CERTIFICATE OF SERVICE
On the 6th day of January 2015, a copy of the foregoing motion was served upon
the Bastrop County District Attorney by U.S. Mail or hand delivery.
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Exhibit 1
STATE OF TEXAS §
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v. § OF
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RODNEY REED § BASTROP COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After considering the record in this case, and after making credibility
determinations following a live hearing in this Chapte1· 64 proceeding, the Court
enters the following findings of fact and conclusions of law:
Relevant Procedural History
1. The State, on Apt·il8, 2014, filed a motion to set an execution date for Movant,
Rodney Reed. The State requested a date of November 19, 2014.
2. Movant, on AprilS, 2014, filed a motion :to recuse the ele<--ted judge overseeing
his case, Judge Towslee-Corbett.
3. Movant, on April 14, 2014, opposed setting of an execution date. Movant
requested indefinite delay of his execution to conduct DNA t.esting, to file a
subsequent state habeas application, and to file a scientific-evidence
application. ·
4. On May 23, 2014, Judge Towslee-Corbett issued an order of voluntary recusal.
5. On May 28, 2014, Judge Underwood, the presiding judge of the Second
Administrative Judicial Region, assigned the undersigned judge to preside
over the case.
6. On June 18, 2014, the Court set a hearing on the State's motion to set an
execution date.
7. On June 17, 2014, the Court re-set the hea1·ing on the State's motion to set an
execution date at the request of the parties.
8.
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10. At the July 14, 2014, hearing, the Court signed an order permitting agreed-to
DNA testing. The items to be tested included four specified hairs and various
swabs taken from the victim's body.
11. At July 14, 2014, hearing, Movant requested indefinite delay of his execution
to conduct DNA teRting.
12. The State timely responded on September 12, 2014. The State attached several
exhibits regarding the existence, custody, and present condition of evidence
collected in connection with the investigation of Movant's offense.
13. Movant filed a letter requesting a hearing on the Chapter 64 motion on October
14, 2014.
14. The State filed a letter opposing a hea1·ing on the Chapter 64 motion on October
22, 2014. The State attached an exhibit reflecting an amended inventory
regarding fingerprint evidence.
15. Movant filed a letter again requesting a hearing on the Chapter 64 motion on
October 23, 2014. Movant attached, for the first time ever, an affidavit from a
DNA expert.
16. On October 27, 2014, the Court set a hearing on Movant's Chapter 64 motion.
17. On November 18, 2014, the State moved to modify Movant's execution date.
The State requested an amended date of March 5, 2015.
18. Movant filed a reply to the State's Chapter 64 response on November 24, 2014.
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Movant attached, for the first time ever, personal affidavit.
19. Movant filed a motion to withdraw his execution date on Novembe1· 25, 2014,
immediately before the hearing on his Chapter 64 motion. Movant requested
indefinite delay of his execution to conduct DNA testing or to appeal the denial
of DNA testing.
20. The Court held a live hearing on the Chapter 64 motion on November 25, 2014.
Movant called crime-scene and forensics expert, John Paolucci, and DNA
expert, Deanna Lankfo1·d. The State called Gerald Clough, an investigator
with the Office of the Attorney General of Texas, Lisa Tanner, the special
prosecutor on Movant's case, and Etta Wiley, a deputy district clerk for Ba$trop
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Countv. M ovant and t h e State ·also mtro . duce d various
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from the hearing, the Court denied Movant's Chapter 64 motion. \~,h: (}~/
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21. At the November 25, 2014, hearing, the Court granted the State's ~;;ti`` to
modify Movant's execution date. The Court entered an amended execution
order setting Movant's execution for March 5, 2015.
22. On December 2, 2014, Movant requested a subpoena to obtain a personal
reference sample for purposes of the agreed-to DNA testing ordered on July 14,
2014. A subpoena issued on December 3, 2014.
Findings of Fact and Conclusions of Law
23. Reed has failed to prove by a preponderance of the evidence that his Chapter
64 motion is not made to unreasonably delay the execution of sentence of
administration of justice. This is explained below:
23a. Movant, to date, has not provided the Court with any information
regarding time estimates for the extensive DNA testing he seeks. This
alone, the Court believes, is sufficient to show that Movant has failed in
his burden to show that his request is not made to unreasonably delay
his execution.
23b. Movant filed his Chapter 64 motion on the day this Court initially set
Movant's execution date. This timing, the Court believes, was not
coincidental, but a designed tactic to delay the setting of Movant's
execution date. Movant's repeated desire to indefinitely delay his
execution, instead ofproposing concrete time lines, furthe1· supports the
Court's belief that his Chapter 64 motion was filed for purposes of
unreasonable delay.
23c. The Court notes that Movant's Chapter 64 motion was filed thirteen
years after Chapter 64's enactment and approximately three years after
Chapter 64's most recent amendment. The Court finds that the1·e was
no legal impediment to filing a Chapter 64 motion during this entire
period. The Court also notes that Movant has been continuously
represented by counsel during his postconviction proceedings, as
indicated by the multiple state and federal opinions generated during
these proceedings. The lack of filing during this period, which was
without factual or legal impediment, leads the Court to believe that the
present Chapte1· 64 motion is. filed for purposeg of delay.
23d. As pled in Movant's Chapter 64 motion, Movant's first informal request
for DNA testing occurred three days after the United States Court of
Appeals affirmed the denial of his federal petition for writ of habeas
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corpus. This timing is important because, as demonstra:t~ t,hEf J
State's r.esponse, there is little chan`` for relief following affi·`` JJ!``:
the derual of a federal habeas pet1tlon. Thus, the Court fina'B1drf.itft.··
Movant only sought DNA testing after his other efforts at relief p"rov~d
unsuccessful. This diminishes Movant's case that his present Chapter
64 motion was not filed for purposes.of unreasonable delay.
23e. As demonstrated by the State's exhibits, Movant's att.ot·ney-Bryce
Benjet-is counsel of record for Larry Swearingen, another Texas death
row inmate. Mr. Renjet filed a Chapter 64 motion for Swearingen
approximately a year and a halfhefm·e Movant's Chapter 64 motion. Mr.
Benjet filed another Chapter 64 motion for Swearingen approximately
two months before Movant's Chapter 64 motion. Movant's motion is
substantially similar to Swearingen's initial Chapter 64 motion and
attached to Swearingen's initial Chapter 64 motion is a personal
affidavit from Swearingen and an affidavit from a DNA expert.
Swearingen's second Chapter 64 motion has attached to it another
affidavit from a DNA expert. Thus, the Court concludes that Movant,
through his counsel, Mr. Benjet, had the legal and factual knowledge to
file Movant's present Chapter 64 motion more than a year before it was
filed. Movant's delayed presentation of a personal affidavit and an
expert affidavit, the Court finds, is a purposeful attempt at delay.
23f. Movant has been cited for abuse of the writ on five separate occasions
by the Court of Criminal Appeals. As demonstrated by the State':;
evidence, the United States District Court fm· the Western District of
Texas ruled that Movant had untimely sought forensic testing and was
dilatory in submitting an affidavit. The United States Court of Appeals
for the Fifth Circuit also found that Movant submitted evidence in an
untimely fashion. Acc01·dingly, the Court finds that Movant has
engaged in a dilatory and piecemeal litigation strategy th1·oughout his
postconviction proceedings and the Court believes this Chapter 64
motion is a continuation of such behavior.
23g. Movant has thrice asked the Court to indefinitely postpone his execution
date--once in opposing the State's motion to set an execution date, once
at the hearing to set an execution date, and once at the heat·ing on this
Chapte1· 64 motion via a motion to withdraw the date. The Court finds
that Movant's request for, essentially, indefinite stays works against
him in proving that he i~ not attempting to unreasonably delay his
execution.
23h. Movant, at the live evidentiary hearing on the Chapte1· 64 motion, asked
for DNA testing on a substantial amount of eviden<.."e that he had not
mentioned in his Chaptet· 64 motion. Consequently, Movant. has not
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individually briefed or explained the type of testing that he ii'~.
performed on these items. The Court finds this dilatory reqti-~S; ./
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another example of Movant's last-minute amendments to his Cnllpllt'f.~··
64 pleadings, which this Court considers to be an at-tempt to
unreasonably delay his execution.
23i. The Court rejects Movant's rationale for failing to request and brief
those items of evidence raised for the first time at the hearing on the
Chapter 64 motion; specifically, that Movant did not know of the
evidence's existence until the State attached inventories to its Chapter
64 response. Movant has failed to demonstrate that he requested such
inventories from the State prior to the State'8 Chapter 64 1·esponse or
that the State refused him such inventories upon request. Further, one
of the items of evidence that Movant requested to be tested fo1· the first
time at the Chapter 64 hearing-beer cans-.has been heavily litigated
during the course of Movant's postconviction proceedings. It is
inconceivable to the Court that Movant did not know that such item
existed. Moreover, Movant requested DNA testing of items of evidence
in his Chapter 64 motion-a condom, a knife, and a shirt piece-that
were not introduced at trial and were, therefore, "unknown" to Movant
until the State attached an inventory to its response. Stated another
way, Movant requested testing of some items he did not "know" were in
the possession of the St.ate o1· District Clerk. The Court finds Movant's
unsupported excuse to be further evidence of his attempts to
unreasonably delay his execution.
23j. As demonstrated by the State's evidence, Movant is in possession of
extracts from multiple pieces of evidence he seeks testing on and which
he could test independently of a Chapter 64 motion. This includes the
beer cans, various swabs from the victim's body, stains from the victim's
pants and back brace, and a condom. Movant's request to test these
items via Chapter 64 when he could conduct the tesiing himself.
especially given his offer to pay for DNA testing, leads the Court to
believe that his request for DNA testing is for the purpose of
unreasonable delay.
23k. The Court finds that Movant has requested DNA testing of items of
evidence that the State has already agreed to test. This includes various
hai1·s and swabs from the victim's body. The Court finds that this
request for redundant testing is, again, an attempt to unreasonably
delay the execution of sentence.
231. Movant has repeatedly stated, in pleadings and in court, that he plans
to soon file postconviction motions for relief pursuant to Articles 11.071
and 11.073 of the Texas Code of Criminal Procedure. To date, despite
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Movant's promise of diligence, he has not fLied either ple``- · · fie~/
Court views this procrastination as another example of an ··ti-t.,.. rn,n
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unreasonably delay his execution. •• ••~.``~····
23m. Movant waited more than four months to obtain a subpoena for a
reference sample from himself for purposes of the agreed-to DNA testing
that this Court ordered in July. This delay in requesting a reference
sample demonstrates, the Court believes, unreasonable delay and
Movant's tardy actions in his agreed-to DNA testing makes this Court
believe he could not complete his requested DNA testing before the
present execution date.
24. The Court finds that Movant has failed to prove by a preponderance of the
evidence that he would not have been convicted but for exculpatory results
from DNA testing. This is explained below:
24a. The State's case on guilt-innocence was strong-Movant's DNA was
found both on and inside the victim, which demonstrated presence; the
intactness ofMovant's sperm inside the victim's vaginal cavity, the peri-
mortem injuries to the victim's anus, Movant's saliva on the victim's
breasts after she took a shower the evening before her murder, and the
small amount of semen in the victim's panties demonstrated sexual
assault contemporaneous with murder; the peri-mortem injury to the
victim's anus and the obvious signs of sexual assault-the victim's
bunched up panties, a broken pants zipper, partially unclothed, bruises
to the arms, torso, and head of the victim-demonstrated lack of
consent; and additional . evidence indicated that Movant frequented the
area of the victim's disappearance at the time the victim disappeared
and the Movant matched the height of someone who would have fit the
adjusted seat in the victim's truck.
24b. Many of the items of evidence Movant seeks to test were already before
the jury and the jury knew they did not match Movant-their
exculpatory nature was already before the jury. For example, Movant's
DNA and forensics expet·t testified that one ofthe hairs Movant seeks to
test did not match Movant's genetic profile. As another example, a DPS
forensic scientist testified that none of the hairs collected from the
victim's body microscopically matched Movant's hair. And, as another
example, Movant did not match any of the fingerprints collected during
the course of the investigation. Thus, the jury knew that many of the
items Movant seeks to test were not from him.
24c. Further, the Court finds that none of the evidence Movant seeks to te~t
was so integral to the State's case that the jut·y would have acquitted
despite knowing that Movant's DNA was not on the item. Many ofitems
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were in a truck shared with the victim's fiance and
demonstrated that other people had ridden in the truck.
would not be surprised to know that foreign DNA was
originating from the truck. Further. manyofthe items of
been handled by ungloved individuals, which further undermines the
value of such "exculpatory'' results before a jury. Ultimately, at best,
exculpatory results from the items Movant seeks to test would muddy
the waters, not prove by a preponderance that he would have been
acquitted.
Accordingly, Movant's Chapter 64 motion is DENIED.
It is so ORDERED.
DONE AND ENTERED this / & · day of ]¥,_,~.,. '2014.
Presiding Judge
21st District Court
Bastrop County, Texas
Sitting by Assignment
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NO. <{,70}
THE STATE OF TEXAS VS. RODNEY REED
21ST DISTRICT COURT
CHARGE: CAPITAL MURDER
WITNESS:
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY, for the County of Bastrop, State ofTexas, duly selected, empaneled,
sworn, charged, and organized as such at the JANUARY Tenn A.D. 1997 ofthe 2ht Judicial
District Court for the said County, upon their oaths present in and to said court at said term that
RODNEY REED hereinafter styled Defendant, and before the presentment of this indictment, in
the County and State aforesaid, on or about the 23rd day of April, A.D. 1996, did then and there
intentionally cause the death of an individual, namely Stacey Stites, by strangulation, and the
defendant was then and there in the course of committing and attempting to commit the offense of
aggravated sexual assault of Stacey Stites;
Count Two
And the grand jurors aforesaid, upon their oaths aforesaid, do funher present in and to said coun
that RODNEY REED on or about the 23rd day of April, A.D. 1996, did then and there
intentionally cause the death of an individual, namely Stacey Stites, by strangulation, and the
defendant was then and there in the course of committing and attempting to commit the offense of
kidnapping of Stacey Stites~
AGAINST THE PEACE AND DIGNITY OF THE STATE.
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Foreman Grand Jury
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