Temple, David Mark

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-78,545-02
EX PARTE DAVID MARK TEMPLE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 1008763-A FROM THE
178TH DISTRICT COURT OF HARRIS COUNTY
Y EARY, J., filed a concurring opinion.
CONCURRING OPINION
This is a post-conviction application for writ of habeas corpus challenging Applicant’s
conviction for the murder of his wife, brought pursuant to Article 11.07 of the Texas Code
of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 11.07. The habeas court conducted an
extensive evidentiary hearing on the writ application, spanning twenty-four days over the
course of two-and-a-half months, and has recommended that we grant Applicant a new trial.
We filed and set the application on a number of claims, including: 1) claims predicated on
Brady v. Maryland, 373 U.S. 83 (1963), upon which the habeas court recommends that we
grant relief; 2) claims of ineffective assistance of counsel under Strickland v. Washington,
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466 U.S. 668 (1984); and 3) a claim of actual innocence under this Court’s opinion in Ex
parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Ultimately, I would not grant relief
on the basis of Applicant’s Brady claims, as the trial court has recommended and the Court
does today. Nevertheless, I would sustain one of Applicant’s claims of ineffective assistance
of trial counsel. In explaining why, I will recount many of the circumstances giving rise to
Applicant’s Brady claims because they set the backdrop for my conclusion that trial counsel’s
deficient performance undermines confidence in the outcome of Applicant’s trial.
I. PROCEDURAL HISTORY
On the afternoon of January 11, 1999, Belinda Temple was murdered by a single shot
to the back of her head with a twelve-gauge shotgun as she knelt in the walk-in closet off of
the master bathroom of her home in Katy.1 She was seven months’ pregnant at the time.
When investigators with the Harris County Sheriff’s Office discovered that her husband,
Applicant, was having an extramarital relationship with one of his co-workers at one of the
local high schools, he became a major focus of their investigation. In March and April of
1999, prosecutors took the case to a grand jury. They produced a dozen witnesses, but they
did not ask the grand jury to return an indictment at that time. And indeed, the evidence
against Applicant, while it raised serious suspicions, was not overly compelling. There was
1
A firearms examiner testified at trial that the diameter of the wadding from the shotgun shell
used to murder Belinda was “consistent with a 12-gauge more than any other gauge” of shotgun
shell. It has not been seriously disputed at any stage of these proceedings that the murder weapon
was a twelve-gauge shotgun.
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some question whether he had been at home at the time of the murder, since he was seen with
his and Belinda’s three-year-old son, ET (hereinafter, “ET”), on the security videotape of a
local supermarket either as, or at least soon after, the murder is most likely to have taken
place.2 Moreover, the grand jury also heard testimony about the Temples’ next-door
neighbor, RJS, III (hereinafter, “RJS”), a sixteen-year-old boy who was a student at the high-
school where Belinda worked as a tutor and special-needs instructor.3 Belinda had recently
reported to RJS’s parents that RJS had been habitually skipping classes, among other minor
infractions, and RJS admitted to the grand jury that he had been home alone, asleep on the
couch, at the time of the murder.
Five years later, in the summer of 2004, the case was called to the attention of a
prosecutor in the cold-case division of the Harris County District Attorney’s office. By this
time, Applicant had married Heather Scott, the object of his 1999 extramarital relationship.
Without presenting any new evidence to the grand jury, the prosecutor obtained a murder
indictment against Applicant and had him arrested.4 When the defense attorney hired by
2
The time-stamp on a security video from the supermarket indicated that Applicant arrived
there with ET at 4:32 p.m.
3
Belinda worked at a different high school than Applicant.
4
Applicant knew that Belinda was pregnant, of course. As of 1999, however, the Legislature
had not yet provided that the murder of a pregnant woman was a capital offense. See Acts 2003, 78th
Leg., ch. 823, § 2.01, p. 2608, eff. Sept. 1, 2003 (amending Penal Code Section 1.07(26)’s definition
of “individual” to include “an unborn child at every stage of gestation from fertilization until birth”);
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (recognizing the 2003 legislative
amendment authorizing capital prosecution for the murder of a mother and her fetus).
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Applicant’s family almost immediately requested an examining trial for Applicant, the
prosecutor responded by closing the State’s file to him, as was the Harris County District
Attorney’s unofficial office policy at that time. From that point on, the prosecutor provided
defense counsel with nothing more than the limited discovery to which Applicant was
minimally entitled under the law.5 As for Brady material, the tenor of the testimony of both
the prosecutor and her second chair at the writ hearing was that they felt duty bound to
disclose exculpatory or impeaching information only if they believed it to be true; if they felt
confident that the sheriff’s investigators had satisfactorily ruled out an alternative suspect,
they did not believe they were obligated to disclose information about the investigation of
that alternative suspect to the defense under Brady.6 Thus, while Applicant’s family
conveyed to defense counsel their belief that RJS was a viable suspect, the State did nothing
at any time prior to Applicant’s trial to alert defense counsel to the full extent of law
enforcement’s investigation into RJS’s possible involvement in Belinda’s murder.
5
Prior to the passage of the Michael Morton Act in 2013, “Texas law gave a defendant the
right to no more discovery than due process requires.” Gerald S. Reamey, The Truth Might Set You
Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or
Not, 48 TEX . TECH . L. REV . 893, 898 (2016).
6
Asked whether the State should reveal information about an alternative suspect prior to trial,
the second chair prosecutor replied, “Not if you run it down and there’s no validity to it, then it is
not something that needs to be disclosed.” The first chair prosecutor testified similarly that she was
not obligated to turn over information seemingly favorable to the defense if in her estimation it was
“ridiculous.” She went so far as to assert that it was her “job” to “stand up for” an alternative suspect
like RJS if she believed he was being “wrongfully accused.” She insisted that “[t]here is a line you
have to draw in your own mind ethically where you quit accusing a 16-year-old boy of committing
a capital murder.”
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Applicant’s trial commenced in October of 2007, lasting approximately five weeks.
In his opening statement to the jury before any evidence was presented, defense counsel
made no mention of an alternative suspect. Instead, he emphasized that Applicant simply
could not have had enough time to perpetrate the murder given the time-line he expected the
evidence to reveal. The State’s theory of the case was that Applicant was motivated to
murder Belinda in order to pave the way to marry Scott; and that he staged a burglary to
make it appear as if she had been killed by an intruder while he was out running errands with
ET.7 Somewhere along the way he successfully disposed of the twelve-gauge shotgun he
used to kill Belinda, according to the State’s theory, and no weapon was ever found that was
definitively shown to be the murder weapon. Although Applicant had owned a shotgun as
a teenager, the parties disputed the gauge of that shotgun and, in any event, it was undisputed
that Applicant no longer possessed that particular shotgun at the time of the offense. Also
critical to the State’s case was the inference that any other perpetrator besides Applicant
would have caused the Temples’ dog, Shaka, an aggressive chow, to raise a ruckus in the
back yard (the purported point of entry having been the back door) and alert the whole
neighborhood. Applicant rebutted this inference with substantial evidence, including his own
7
Because ET was running a low fever on the day of the offense, Belinda left school early to
fetch him from his day care center and take him home. She then called Applicant to come tend to
ET while she returned to school for an important meeting. She was murdered after she returned home
from that meeting, but not before she stopped at her in-laws’ house to pick up a batch of homemade
chicken soup for ET. By the time she arrived home, ETwas feeling much better. At trial, the parties
stipulated that a subsequent psychological examination revealed “no evidence that ET had been a
witness to the murder.”
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testimony, that he had left Shaka in the stand-alone garage while out running errands—not
in the back yard, as the State’s theory assumed.
Defense counsel began to discover the scope of the State’s investigation of RJS early
in the course of the trial, as sheriff’s investigators testified and defense counsel was permitted
to review their offense reports in preparing for cross-examination. He was also allowed to
review the earlier grand jury testimony of those trial witnesses who had testified before the
1999 grand jury. By the seat of his pants, he began to develop a supplemental defensive
theory (not inconsistent with his original defensive theory) that—as he ultimately argued to
the jury in his final summation at the guilt stage—the evidence that RJS committed the
offense, while admittedly sketchy, was nevertheless more substantial than the evidence of
Applicant’s guilt.
Most importantly, defense counsel was able to show that RJS had access to a
Harrington & Richardson (hereinafter, “H & R”) break-open twelve-gauge shotgun. This
shotgun belonged to RJS’s father. When it was recovered, it contained an expended shotgun
shell. Before it had been fired, this shell had been “reloaded”—that is to say, it was not as
originally manufactured, but had been re-packed by hand. The State’s experts had concluded
that the shotgun shell used to murder Belinda had been similarly reloaded. RJS’s father
possessed a number of these reloaded shells after the murder, but those were found to contain
wadding that was different than the wadding from the reloaded shell used to kill Belinda (and
recovered from the floor of the walk-in closet where her body was found). In short, while it
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was never demonstrated that the H & R shotgun was the actual murder weapon, defense
counsel was able to argue to the jury that RJS had access to the closest thing to the murder
weapon that any investigation had yet revealed. Having learned as well during trial that
Belinda had reported RJS’s truancy to his parents, defense counsel was also able to suggest
to the jury that RJS had a substantial, albeit not particularly compelling, motive to kill her.
To a limited extent, defense counsel used the late-disclosed offense reports to impeach
the testimony of the sheriff’s detectives who claimed ultimately to have been “satisfied” that
RJS was not the perpetrator.8 Moreover, defense counsel used information gleaned from both
the offense reports and RJS’s own earlier grand jury testimony to cross-examine RJS when
he took the stand as the State’s only rebuttal witness at the end of the guilt phase of evidence
to deny having killed Belinda. The jury found Applicant guilty after deliberating for more
than a full day.9 It later assessed him a life sentence.
The major thrust of Applicant’s direct appeal was to challenge the sufficiency of the
8
These offense reports revealed that RJS was questioned by various sheriff’s investigators
as many as seven times, giving a number of oral statements and two written statements. He was
subjected to two polygraph tests, both of which showed signs of deception when he was asked about
his involvement in Belinda’s murder. He eventually refused to submit to a third polygraph. In spite
of these circumstances as detailed in his offense report, Detective Charles Leithner pronounced
himself “satisfied” at trial that RJS did not kill Belinda. Defense counsel was prevented from
introducing evidence of RJS’s failed polygraphs, and Applicant did not complain of this ruling on
appeal. But defense counsel was permitted to show that RJS was questioned repeatedly by the
investigators and that, at one point, Leithner told RJS’s parents that RJS could not be ruled out as
a suspect until his story could be corroborated.
9
The docket sheet reflects that the jury was retired to deliberate at 2:47 p.m. on November
14, 2007, excused for the evening at 4:45 p.m., and then returned its verdict the next day at 4:25 p.m.
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evidence, both legally and factually, to show that he murdered his wife. While his appeal was
pending, however, this Court eliminated factual sufficiency from the Texas criminal justice
lexicon, to the dismay of two members of the Fourteenth Court of Appeals who were inclined
to believe that the evidence against Applicant was factually insufficient. See Temple v. State,
342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010).10 The court of appeals concluded
that the evidence was legally sufficient, over the dissent of one justice on denial of rehearing
en banc who believed otherwise.11 On petition for discretionary review, this Court ultimately
affirmed the court of appeals’s judgment that the evidence was legally sufficient. Temple v.
State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013).12
Applicant also complained on direct appeal about the late disclosure of the
10
Justice Seymore authored the panel opinion holding the evidence legally sufficient. Temple,
342 S.W.3d at 581-619. But he also authored a separate concurring opinion, decrying the panel’s
acquiescence to the plurality and concurring opinions of this Court in Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010), which a few months earlier had abandoned factual sufficiency review.
11
Justice McCally, who was not a member of the original panel, authored an impassioned
dissent to the denial of rehearing en banc, urging the court of appeals to hold that the evidence was
legally insufficient. Temple, 342 S.W.3d at 628-46. Justice Seymore weighed in again, writing a
separate dissent to the denial of en banc rehearing. He disagreed with Justice McCally’s conclusion
that the evidence was legally insufficient, but he opined that, for essentially the same reasons that
Justice McCally concluded that the evidence was legally insufficient, he would hold that it was
factually insufficient. Id. at 646-59. He was joined by Justice Anderson.
12
The majority opinion of the court of appeals panel, the separate opinions on the denial of
rehearing en banc, and the opinion of this Court on discretionary review, all engaged in lengthy and
meticulous recitations of the evidence. Though I have studied both the entire record of the appeal
as well as the lengthy hearing on Applicant’s writ application, I do not recite the facts in quite the
same level of detail in this opinion. For present purposes, I must limit my fact recitation to those
details most pertinent to Applicant’s particular post-conviction claims. For the full flavor of how
painstaking the legal sufficiency analyses were in this case, however, I refer the reader to those
various recitations. Our discretionary review was limited to Applicant’s sufficiency claims.
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information with respect to the State’s investigation of the alternative suspect, RJS. He
argued that the delayed disclosure violated his right to due process under Brady. The court
of appeals rejected this point of error for two reasons. First, it held that Applicant had
procedurally defaulted this claim. Temple, 342 S.W.3d at 591. Because defense counsel did
not formally seek a continuance until three weeks after the offense reports began to come to
light, well into his presentation of defensive evidence and near the end of the guilt phase of
the trial, the court of appeals held that he forfeited his right to complain, under this Court’s
precedent in Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). Id.13 Alternatively,
the court of appeals held that, because Applicant was able in any event to effectively present
the untimely disclosed facts, there was not “ a reasonable probability that the outcome of the
trial would have been different had the State disclosed these facts earlier.” Id. at 592.
Applicant did not challenge this holding in his petition for discretionary review, and we had
no occasion to address it in our opinion.14
13
The Court’s opinion today does not address this aspect of the court of appeals’ holding.
14
Applicant also claimed on appeal that the first chair prosecutor engaged in numerous
instances of prosecutorial misconduct during the course of the trial. The court of appeals agreed with
many though not all of these claims but concluded that, on balance, her misconduct did not operate
to deprive Applicant of a fair trial. Temple, 342 S.W.3d at 592-619. These numerous claims were
not embraced within the scope of our discretionary review, which was limited to Applicant’s
sufficiency claims. To a large extent, Applicant’s present post-conviction writ application continues
to dwell on the prosecutor’s conduct and her character. While I do not condone some of the
prosecutor’s actions in this case, I find Applicant’s focus on her conduct and character largely to
distract from the genuine issue under Brady, namely, whether Applicant was ultimately deprived of
favorable evidence that might realistically have made a difference to the outcome of his trial. After
all, the bedrock “principle” that undergirds Brady “is not punishment of society for the misdeeds of
a prosecutor but avoidance of an unfair trial to the accused.” Brady, 373 U.S. at 87 (citing Mooney
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Applicant raises a number of issues in his post-conviction application for writ of
habeas corpus, most prominent of which is his renewed Brady claim.15 Unfortunately, in
neither his writ application nor during the extensive habeas evidentiary hearing has Applicant
adequately distinguished information that he claims was belatedly disclosed during trial
(hereinafter, “late-disclosed evidence”) from information that he alleges was not disclosed
until after trial (hereinafter, “undisclosed evidence”). To a significant extent, he continues
to complain of the late disclosure rather than of any non-disclosure. Even though defense
counsel reviewed many of the offense reports during trial and put much of it to effective use,
Applicant contends that there were other bits of exculpatory or impeaching evidence
embedded in them that defense counsel simply missed because of the conditions under which
he was compelled to review them.16 In essence, Applicant argues that, while defense counsel
v. Holohan, 294 U.S. 103 (1935)).
15
To the extent that Applicant is now complaining of late-disclosure of the same information
that he complained about on direct appeal, the court of appeals’ disposal of that issue, which we had
no occasion to examine on discretionary review, has become law of the case. Thus, the court of
appeals’ holdings that Applicant’s Brady complaint was procedurally defaulted and that,
alternatively, the particular information he claimed on appeal that the State suppressed was not
material, those holdings have become binding. See George E. Dix & John M. Schmolesky, 43B
TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 59:13, at 822 (3rd ed. 2011) (“The
doctrine of the ‘law of the case’ clearly limits . . . efforts to use habeas to relitigate issues already
resolved on appeal. The direct appeal and subsequent application for habeas relief are the same
‘case’ for purposes of this doctrine, and consequently the law of the case doctrine generally bars
reconsideration of issues of law resolved in the appeal.”) (footnotes omitted). Neither Applicant nor
the Court today attempts to explain why the court of appeals’ holdings with respect to procedural
default and materiality should not be final—at least to the extent that Applicant continues to
complain of suppression of the same evidence that formed the basis of his appellate complaint.
16
At the writ hearing, defense counsel testified, for example, that he was given about an hour
to review the nearly 100 page offense report of Detective Leithner while sitting in the courtroom with
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was able to put to some good use the late-disclosed information, he was not able to put it to
its optimal use, as he would have had the information been revealed to him prior to trial.
Defense counsel was handicapped, Applicant concludes, by having to investigate even as he
was having to litigate.
In its proposed findings of fact and conclusions of law, in which it has recommended
that we grant relief on the basis of Brady, the habeas court has likewise largely failed to
distinguish late-disclosed evidence from undisclosed evidence.17 The habeas court has
nonetheless concluded, albeit “not without some doubt,”18 that Applicant 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.” For reasons I will develop at some length, I share the habeas court’s doubt.
Ultimately, though, while I agree that we should grant Applicant a new trial, I would not base
our ruling on his Brady claims. Instead, I would base our holding on one of Applicant’s
claims of ineffective assistance of counsel (though that ineffectiveness may very well have
one of the prosecutors hovering over him. Defense counsel later introduced Leithner’s offense report
as an exhibit in support of his motion for continuance, and the trial court admitted it for record
purposes, so it was a part of the appellate record in the court of appeals.
17
The judge who presided over the writ hearing is not the same judge who presided over
Applicant’s trial. After we filed and set this cause for submission, the State filed a motion in this
Court to supplement the record with an affidavit from the judge who presided over the trial in 2007,
expressing his disagreement with the habeas court judge’s recommendation that we grant Brady
relief in this cause. Applicant, in turn, filed a motion to strike the State’s motion. We denied both
motions on May 18, 2016.
18
I take this phrase verbatim from the habeas court’s findings of fact and conclusions of law.
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been a regrettable by-product of the fact that defense counsel was forced to
investigate—even as he was trying to litigate—the case).
II. BRADY
A. The Legal Standard
The United States Supreme Court has expanded upon its 1963 decision in Brady to
hold that a defendant suffers a due process violation if the State or one of its surrogates,
whether willfully or not, 1) fails to disclose evidence that 2) is favorable to the defense
(either because it is exculpatory or because it impeaches) and 3) is material in the sense that,
had it been timely disclosed to the defense, there is a reasonable probability that the result
of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280-82
(1999). “Reasonable probability” in this context does not mean “the defendant would more
likely than not have received a different verdict with the evidence,” but instead means that,
having been deprived of the evidence, the defendant did not receive “a fair trial, understood
as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434
(1995). It is important to bear in mind that the materiality inquiry “is not a sufficiency of
evidence test.” Id. “A defendant need not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not have been enough left to
convict.” Id. It is enough to establish a reasonable probability of a different result “when the
[State’s] evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id.
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(citing United States v. Bagley, 473 U.S. 667, 678 (1985)).19 As part of this consideration,
“the reviewing court may consider directly any adverse effect that the prosecutor’s [non-
disclosure] might have had on the preparation or presentation of the defendant’s case.”
Thomas v. State, 841 S.W.2d 399, 405 (Tex. Crim. App. 1992) (quoting Bagley, 473 U.S. at
683 (plurality opinion)). Moreover, materiality is to be assessed “collectively, not item by
item.” Kyles, 514 U.S. at 436.
We have said that, to constitute a Brady violation, the State’s suppression must have
resulted in the denial of evidence to the defense that “would have been admissible at trial.”
Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). We have noted, however, that
“the analysis might not end there” because, as the Fifth Circuit has held, “if inadmissible
evidence would give rise to the discovery of other admissible evidence or witnesses, the State
does have a duty to disclose that evidence.” Id. at 699 n.22 (citing United States v. Brown,
650 F.3d 581, 588 (5th Cir. 2011)).
We have also held that, if late-disclosed evidence “was turned over in time for the
defendant to use it in his defense, the defendant’s Brady claim would fail.” Little v. State,
991 S.W.2d 864, 866 (Tex. Crim. App. 1999). So long as the defendant “received the
material in time to use it effectively at trial, his conviction should not be reversed just
because it was not disclosed as early as it might have and should have been.” Id. (citing
19
As the United States Supreme Court recently emphasized, under this standard, an applicant
“can prevail even if . . . the undisclosed information may not have affected the jury’s verdict.”
Wearry v. Cain, 136 S. Ct. 1002, 1006 n.6 (2016).
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United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1999)). See also United States v.
Valas, 822 F.3d 228, 237 (5th Cir. 2016) (same). On direct appeal in Applicant’s case, in an
alternative holding to its conclusion that Applicant procedurally defaulted his Brady claim,
the court of appeals determined that defense counsel was able to put the late-disclosed
materials to effective use at Applicant’s trial. Temple, 342 S.W.3d at 591-92. We do not
ordinarily entertain claims in a post-conviction application for writ of habeas corpus that
were previously resolved against an applicant on direct appeal. Ex parte Acosta, 672 S.W.2d
470, 472 (Tex. Crim. App. 1984); Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App.
2006).
This is not to say that Applicant should now be altogether barred from raising a Brady
claim in his post-conviction writ application. As is the case with claims of ineffective
assistance of trial counsel, a habeas applicant may be able to re-raise a Brady claim that was
rejected on direct appeal if he can present new evidence of its validity. Cf. Ex parte Nailor,
149 S.W.3d 125, 131 (Tex. Crim. App. 2004) (“[I]f the appellate court rejects a claim of
ineffective assistance of counsel because the record on direct appeal does not contain
sufficient information to adequately address and resolve a particular allegation of counsel’s
deficient performance, the defendant may re-urge consideration of that specific act or
omission in a later habeas corpus proceeding if he provides additional evidence to prove his
claim.”); Ex parte Bryant, 448 S.W.3d 29, 34-5 (Tex. Crim. App. 2014) (quoting Nailor and
applying it to hold that the applicant could re-raise his ineffective assistance of counsel claim
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in a writ since he brought new evidence to support it); Brown, 205 S.W.3d at 547 n.26.
(citing Nailor in support of the Court’s decision to remand to the convicting court “to give
applicant an opportunity to present whatever ‘new’ evidence he had in support of his ‘old’
allegation” of ineffective assistance of counsel).
Thus, Applicant may presently be able to raise Brady in either or both of two ways.
First, if there is additional exculpatory or impeaching material beyond that which was
disclosed for the first time at his trial—in short, undisclosed evidence—then of course
Applicant may raise a Brady claim in post-conviction habeas proceedings, since this would
essentially constitute a new Brady claim.20 Second, Applicant may be able to re-raise a
previous Brady claim. But to the extent that Applicant continues to complain about the late-
disclosed exculpatory or impeaching evidence that was rejected on direct appeal on the
grounds of immateriality, he must produce additional evidence—beyond what is apparent
from the appellate record—in order to establish incremental materiality.21 What that means
is that Applicant must now show that there was exculpatory or impeaching value to the late-
disclosed information beyond that which would have been apparent to the court of appeals
from the appellate record. And he must also show that this additional exculpatory or
20
Because this would constitute a new Brady claim, we would not be bound by law of the
case with respect to the Brady claim that Applicant raised on direct appeal.
21
Here I am giving Applicant the benefit of the doubt that, if he can present new evidence
to show incremental materiality, he will not be bound by law of the case, and can make his claims
in post-conviction habeas corpus proceedings notwithstanding the court of appeals’ holdings with
respect to procedural default and materiality.
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impeaching value would have created a reasonable probability of a different outcome—even
taking into account the uses to which defense counsel was able to put those late-disclosed
materials during the trial. In other words, in my view, Applicant must present a record in
these habeas corpus proceedings to establish that defense counsel could have used the late-
disclosed materials, had they been timely disclosed, to substantially greater exculpatory or
impeaching effect at trial than he actually did. It is doubtful, in my opinion, that Applicant
has established sufficient incremental materiality here.
B. Applicant’s Allegations of Undisclosed Brady Evidence
Most of what Applicant developed at the extensive writ hearing was additional
evidence pertaining to the materiality of the late-disclosed information contained in the
various offense reports. But from my own review of both the trial and writ records, I have
also been able to parse out some evidence that appears not to have been disclosed even at
trial. None of this undisclosed evidence, however, strikes me as particularly momentous. I
shall briefly discuss the most prominent examples that I have gleaned from the voluminous
habeas record.22
The School Witnesses: Another investigating officer, Detective Tracy Shipley,
interviewed several witnesses at Belinda’s school with respect to certain matters, including
what time Belinda had left the school to return home on the day she was murdered. Defense
counsel was given a copy of Shipley’s offense report at trial which summarized these
22
The discussion that follows is meant to be illustrative, not necessarily exhaustive.
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interviews. None of these witnesses could say precisely what time Belinda drove off. The
timing of Belinda’s departure was critical. The later Belinda left the school, the later she
would have arrived, first at her in-laws’ home to pick up some homemade soup, and then at
her own home. This would have narrowed Applicant’s window of opportunity to have staged
the burglary, killed Belinda, cleaned himself up afterwards from the inevitable blow-back
from the shotgun blast,23 and then loaded ET into his truck to leave the scene.
These witness interviews were tape-recorded, however, and defense counsel was not
made aware of the audio recordings during trial. Telephone records that were admitted at trial
showed that Belinda called Applicant at about 3:30 p.m. Applicant claims that the audio
recordings reveal that two of the school witnesses could establish that Belinda was still in the
parking lot of her school when she spoke to Applicant on her phone. This was exculpatory,
Applicant claims, because it demonstrated that she had not yet left the school as late as 3:30,
when the phone records showed that this conversation took place.
The record does not support Applicant’s contention. The writ record contains the
actual audio recording of one of these two witnesses, Courtney Ferguson, which I have
23
The record is unclear whether Applicant was wearing the same clothes when captured on
the supermarket video that he had been wearing earlier in the day, before Belinda could have been
shot. But there was defensive testimony at trial that the shotgun blast, even with the muzzle touching
the back of Belinda’s head, would have caused some blow back and sprayed the shooter with blood.
Sheriff’s investigators did not detect blood on the clothes Applicant was wearing after Belinda’s
murder.
TEMPLE — 18
listened to.24 Ferguson does not say at any point in the interview that she ever saw Belinda
talking on her phone. The audio recording of her testimony lacks the exculpatory value
Applicant attributes to it. The recording of the statement of the other witness, Margaret
Christen, is not in the writ record, so I cannot presently tell whether she ever said that she
saw Belinda on the phone.25 Additionally, Applicant claims that both Ferguson and Christen
identified a third witness, Denise Lavoris, who was present and who (as the habeas court
finds) “would have helped the defense timeline.” But the record reveals nothing about what
Lavoris might have had to say about whether Belinda was on the phone with Applicant while
still in the school parking lot. It is thus pure speculation to say that she would have been
helpful to the defense at trial.
FBI Profiler Report: The habeas court recommends that we find that the State “never
24
In its recommended findings of fact, the habeas court calls this witness “Stacy” Ferguson,
but she is identified in the offense report and in the audio recording as “Courtney” Ferguson.
Courtney Ferguson’s recorded interview is contained in Applicant’s Exhibit 180—and then again
in Applicant’s Exhibit 178. See note 25, post.
25
Applicant has alleged, and the habeas court recommends that we find, that Christen “saw
[Belinda] talking to [Applicant] on her cell phone between 3:20 and 3:30 pm on the day of her
murder.” From the citations to the writ record, it appears that the recording of Christen’s interview
is supposed to be contained in Applicant’s Exhibit 178. But this exhibit does not contain Christen’s
interview. Instead, it is a duplicate of the same interviews (including Ferguson’s) contained in
Applicant’s Exhibit 180. The Court has taken the trouble to order the original exhibits from the
district clerk and I have verified that we still have not been provided with the audio recording of
Christen’s interview. None of these witnesses testified at the writ hearing. Thus, there is nothing in
the record to substantiate the habeas court’s recommended finding. At trial, Christen simply testified
that Belinda’s meeting at the school lasted until “about 3:20 to 3:30[,]” but Christen did not mention
Belinda making a call on her cell phone during that time, and she did not see what time Belinda left
the campus.
TEMPLE — 19
produced an FBI report which profiled the possible killer.” In December of 2000, an FBI
profiler prepared a report that listed the likely “offender characteristics” of the perpetrator
of Belinda’s murder. Applicant now argues that defense counsel could have used this FBI
report to bolster his final argument at trial that RJS was at least as likely a suspect as
Applicant was because RJS better fit the FBI profile. However, at the writ hearing the State
introduced a transcript, gleaned from defense counsel’s own case file, of a telephone
conversation between defense counsel and the prosecutor that occurred more than two-and-a-
half years before trial. In this phone conversation, the prosecutor alluded to the FBI profile
report and offered defense counsel an opportunity to review it. While the writ record does
not show whether defense counsel took her up on this offer, the phone conversation belies
any claim that the FBI profile report was suppressed. The record does not support the habeas
court’s recommended finding.
RJS’s Juvenile Probation Status: During the writ hearing, both defense counsel and
one of his associates who sat second chair during Applicant’s trial complained that they were
never told before or during trial that RJS was on juvenile probation when Belinda was
murdered. Defense counsel maintained that he could have used this information to bolster
his argument at trial that RJS had a motive to murder Belinda—to avoid having his probation
revoked. A Harris County appellate prosecutor confirmed during his writ-hearing testimony
TEMPLE — 20
that RJS was on juvenile probation at the time of the offense.26 Even so, Applicant does not
now argue, nor did the habeas court recommend that we find, that RJS’s status as a juvenile
probationer at the time of the offense constitutes undisclosed Brady evidence.
The record does not reveal why RJS was on juvenile probation. In 1999, as now, if
RJS was on juvenile probation for nothing more than simple truancy, then the fact that
Belinda could report him to the juvenile probation authorities for continuing to skip school
could not possibly result in his being committed to the Texas Youth Commission. See T EX.
F AM. C ODE §§ 51.03(b)(2), 54.05(g) (“a disposition based solely on a finding that the child
engaged in conduct indicating a need for supervision [which includes truant behavior, as
opposed to a disposition based on a finding that the child engaged in “delinquent conduct”]
may not be modified to commit the child to the Texas Youth Commission.”). In short, it is
unclear whether RJS’s juvenile probation could actually be revoked, as defense counsel’s
complaints at the writ hearing presume. Thus, the present record does not reveal that RJS’s
status as a juvenile probationer would have provided him with a particularly compelling
26
During questioning by one of the prosecutors at the writ hearing, the head of the appellate
section in the Harris County District Attorney’s Office, who personally handled Applicant’s direct
appeal, acknowledged as follows:
Q. Essentially, you wouldn’t disagree that [defense counsel] knew that [RJS]
was a juvenile delinquent?
A. Yes.
Q. For heavens sake, he was on juvenile probation, right?
A. Yes.
TEMPLE — 21
motive to commit murder, much less that he subjectively believed otherwise. Under these
circumstances, I would not, sua sponte, fashion an argument that RJS’s juvenile probationary
status constituted favorable—and particularly, material—exculpatory or impeaching
evidence that the State suppressed.
The Written Statements of the So-Called “Katy Boys”: At trial, defense counsel
obtained RJS’s two written statements to the investigators as well as RJS’s grand jury
testimony prior to questioning RJS on cross-examination. He was also shown the offense
reports of the particular detectives who testified at trial, which documented some, but not all,
of the oral statements RJS made over the course of their investigation. Those same offense
reports documented oral statements made by many of the so-called “Katy Boys,” a group of
teenage contemporaries of RJS who were investigated to some extent, mostly because of their
relationship to RJS himself.27 But because none of the Katy Boys testified at trial, none of
their written statements or grand jury testimony was turned over to the defense prior to or
during trial. Applicant complains of the non-disclosure of two of RJS’s oral statements and
all of the written statements and grand jury testimony of the Katy Boys.28 The gist of his
argument is that, had the State provided him with all of this information, he would have been
27
“The Katy Boys” was the name the prosecutor gave to RJS’s teenage contemporaries in
her testimony at the writ hearing. Defense counsel had another, less polite, term for them.
28
Sheriff’s investigators obtained written statements from CT, MG, CE, CC, and JP. I find
no written statement from CG in the writ record. CT and MG testified before the grand jury in April
of 1999.
TEMPLE — 22
significantly better equipped to develop and present his theory at trial that it was RJS, and
perhaps two of his cohorts, CT and MG, who committed the offense.
It is unclear to me, however, that the various undisclosed statements and grand jury
testimony supplies significant materiality. It is true that there are some inconsistencies among
the various statements. But none of the Katy Boys (other than RJS) testified at trial, and so
defense counsel would have had no occasion to use the inconsistencies among their
statements to impeach them.29 To the extent that the various statements could have aided
defense counsel in piecing together and presenting his alternative suspect theory, I am not
inclined to believe it would ultimately have made much difference in the eyes of the jury, for
reasons I will expand upon next in my discussion of the H & R shotgun.
The Recovery of the H & R Shotgun: A week or so before Belinda’s murder, several
of the Katy Boys burglarized a home belonging to the boyfriend of CG’s mother. I glean the
following facts from their various statements. Participating in the burglary were CG, CC, and
CE. Several 12-gauge shotguns were taken during this burglary, though none was shown to
be the murder weapon. Several days later, they took the shotguns out to shoot them and
invited RJS to join them. RJS purloined his father’s H & R shotgun and joined them on their
shooting excursion. Afterwards, CE dropped RJS off at a car stereo business where RJS was
to meet his father. Because RJS did not want his father to know he had taken the H & R
29
Moreover, it is doubtful that would have elected to call any of the Katy Boys to the stand
himself simply in order to impeach them.
TEMPLE — 23
shotgun, he left it with CE, who took it home and apparently hid it under his bed.30
On the day of Belinda’s murder, RJS and CE skipped their last class and left school.
They briefly dropped by RJS’s house, and then RJS drove CE home. RJS returned to his own
home and called CT and MG, who came over. According to their various accounts, these
three then drove down the street to the house of another acquaintance to try to obtain
marijuana, then drove back to RJS’s house. From there, they drove to a convenience store
for cigarettes, then back once more to RJS’s residence. MG and CT dropped RJS off so that
MG could go pick up his mother from work.31 RJS claims he then fell asleep on the couch,
to be awakened by his father at about 6 p.m., by which time emergency personnel and local
constables were on the scene.
Three weeks later, at the end of January, the H & R shotgun was recovered. At trial,
the testimony of both Detective Leithner and Detective Mark Schmidt both tended to suggest
that it was recovered from RJS’s residence a few weeks after the murder. One of the offense
reports that defense counsel reviewed during trial indicated that the H & R shotgun was
recovered by a Deputy Ramon Hernandez; but this offense report does not say where, or from
30
Defense counsel knew about the burglary of the home of the boyfriend of CG’s mother
prior to trial, having obtained an offense report of that offense in advance of trial. It was not until
reviewing the offense reports pertaining to Belinda’s murder at trial, however, that defense counsel
learned that RJS had joined the Katy Boys in their shotgun-shooting excursion days before Belinda’s
murder. He questioned RJS about this event during his cross-examination of RJS at trial.
31
There is some discrepancy amongst the various statements with respect to the order of these
events, but none is inconsistent with RJS’s claim that he was home by about 4:30 p.m. Defense
counsel was aware of at least the general outline of this narrative from the offense reports he
reviewed at trial.
TEMPLE — 24
whom, Hernandez recovered it. Hernandez’s own supplemental offense report recounting his
recovery of the H & R shotgun, if it ever existed at all, seems to have gone missing.32
Hernandez testified at the writ hearing, but by that time he could not remember from whom
he recovered the shotgun in the absence of a supplemental offense report documenting its
recovery. The mystery was apparently solved in 2012 when (in response to Applicant’s
budding actual innocence claim) one of the sheriff’s investigators, Detective Holtke, re-
interviewed CE. CE told Holtke that Hernandez had recovered the H & R shotgun from him.
In none of CE’s previous statements to investigators had he indicated that he had ever taken
possession of the H & R shotgun.
Applicant makes much of the fact that it was never revealed to him at trial from whom
or where Hernandez recovered the H & R shotgun. In its recommended findings of fact, the
habeas court concludes that Hernandez’s supplemental offense report was “lost, destroyed,
or never prepared,” and observes that the sheriff’s investigators failed to question CE during
their initial investigation “about his hiding the H & R shotgun.” I fail to perceive how this
non-disclosure of information pertaining to the recovery of the H & R shotgun deprived
Applicant of favorable—much less material—evidence. That Applicant’s jury may have
gotten the false impression that the H & R shotgun was recovered from RJS’s household
seems to me to have militated to Applicant’s benefit at trial, since it would have placed the
32
Nobody at the writ hearing, including Hernandez himself, could say for sure that he had
actually prepared such a supplement, but all agreed that, assuming he did, it has been lost.
TEMPLE — 25
shotgun within easy reach for RJS to use in murdering Belinda. Instead, Applicant spins an
unlikely scenario in which he contends that he could have persuaded the jury, had the truth
been timely revealed, that RJS took CE home from school on the day of the murder, retrieved
the shotgun from CE at that time, but then later returned the shotgun to CE—to put back
under CE’s bed—after RJS used it to kill Belinda. There is no evidence in either the trial
record or the writ record to support this theory.
Most of Applicant’s present arguments for how he could have used the various
undisclosed statements of RJS and the Katy Boys ultimately turn on the jury accepting this
dubious proposition—that RJS retrieved the H & R shotgun from CE, used it (perhaps with
the help of CT and MG) to kill Belinda, and then returned it to CE for safekeeping. I doubt
that disclosure of either 1) the various statements and testimonies of the Katy Boys, or 2) the
location of the H & R shotgun when it was recovered would have significantly enhanced
defense counsel’s ability to persuade the jury that RJS rather than Applicant was responsible
for Belinda’s murder. With respect to the latter, it might even have detracted.
Joe Sosa’s Information: Three weeks after Belinda was killed, on February 4, 1999,
Detective Schmidt returned a telephone call from Joe Sosa, a special education teacher at
Katy High School. Sosa told Schmidt, among other things, that CT had told Sosa that CT had
been “in [RJS’s] home the night of the homicide along with [MG,]” and that CT had missed
school the next day. Sosa also told Schmidt that, at some undisclosed time, MG “had made
TEMPLE — 26
a comment that if you put a pillow up to a shotgun it will muffle the sound.” 33 This
information appears in a supplemental offense report attributed to Schmidt that was randomly
attached to the supplemental report of another officer, and, unlike Schmidt’s other
supplements, it is not numbered. I am frankly unable to tell whether defense counsel was
aware of it during trial. Schmidt testified at the writ hearing that he conducted no follow-up
investigation of this information that he had obtained from Sosa. Had defense counsel known
of it before trial, he could have interviewed Sosa to try to put these statements of CT and MG
in context. The record does not reveal what more Sosa might have been able to say.
Joe Cadena’s Statement: Defense counsel was never given access to an offense
report that documented the statement of an across-the-street neighbor, Joe Cadena, who told
investigators on January 25, 1999, that he had heard what he took to be a truck backfiring at
about 4:30 p.m. on the day of Belinda’s murder.34 The habeas court mentions this undisclosed
information in its recommended findings as well. But the record also reveals that defense
counsel was given access to a different offense report during trial that recorded an earlier
statement that Cadena had given to canvassing officers on the night of the murder. In that
earlier statement, Cadena asserted that, sometime between 4:30 and 5:30 p.m., he actually
33
There was no forensic evidence at trial to suggest that a pillow was used to muffle the shot
that killed Belinda.
34
It was shown at trial that several young boys who lived behind the Temple residence had
heard what could have been a gunshot at around 4:30, at a time when Applicant must have been on
his way to the supermarket. As the State hypothesized during the writ hearing, it is possible to argue
that the boys heard the same backfire that Cadena thought he heard.
TEMPLE — 27
heard two backfires, which he attributed to a particular truck that he observed on the street.35
Although defense counsel’s investigator spoke with Cadena during trial, defense counsel did
not subpoena Cadena to testify.
C. Incremental Materiality of the Late-Disclosed Evidence
Perhaps marginally more convincing are Applicant’s arguments that disclosure of
much of the materials that the State revealed to defense counsel for the first time during trial
could have been used to substantially greater effect had they been timely disclosed prior to
trial. Some of Applicant’s claims in this regard are more compelling than others. I shall
highlight the most pertinent examples of this category as well.36
The Katy Boys’ Failed Polygraphs: The Katy Boys were questioned more than once
by sheriff’s investigators and gave some oral statements in addition to their undisclosed
written statements. As the habeas court notes in its recommended findings, many of them,
including CE, CT, and MG, were subjected to multiple polygraph examinations, which they
almost uniformly failed. Defense counsel learned of these facts when he reviewed the offense
reports during trial. But the trial court refused to allow defense counsel to elicit any evidence
with respect to the polygraph testing or results before the jury, and although defense counsel
complained bitterly of this limitation at trial, Applicant did not challenge the exclusion of the
polygraph evidence as an issue in his direct appeal. In any event, it is far from clear that the
35
There is no evidence that the shotgun that killed Belinda was fired a second time.
36
Again, the discussion that follows is not exhaustive.
TEMPLE — 28
polygraph evidence was admissible under Texas law,37 or that it would have lead to
admissible evidence that defense counsel would not otherwise have been alerted to
investigate by the offense reports. For this reason, if no other, I cannot say that the State’s
late-disclosure of the polygraph evidence constituted a violation of Brady.
The Parkers’ Dog: Jim and Cynthia Parker lived in a house that was catty-corner to
the Temple’s property, divided from it by a fence. Defense counsel did not learn until he
reviewed the offense reports at trial that a police canvass had disclosed that the Parker’s dog
had barked excitedly at the dividing fence at approximately 4:30 p.m. on the day of Belinda’s
murder—a time that coincides with his defensive theory for when the break-in and murder
occurred (Applicant having been at the supermarket at about this time).38 Once defense
counsel did learn about this evidence, however, he interviewed the Parkers one evening
during the trial and then subpoenaed them, and they testified for the defense at trial. The
habeas court recommends that we find defense counsel did not obtain this information until
trial had commenced. The record substantiates this finding, but it makes no difference
because Applicant cannot show that he suffered any disadvantage from the State’s failure to
divulge this information prior to trial.
37
See Ex parte Bryant, 448 S.W.3d 29, 40 (Tex. Crim. App. 2014) (“Polygraph evidence is
generally excluded from courtrooms because the reliability of such tests remains unproven and jurors
could attach undue credibility to a test that purports to sort truth from fiction, a role for which a
factfinder is more properly suited.”) (citing Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App.
2012) (“[W]e have not once wavered from the proposition that the results of polygraph examinations
are inadmissible over proper objection because the tests are unreliable.”)).
38
See note 34, ante.
TEMPLE — 29
Shaka’s “Access” to the Garage: The habeas court also finds that defense counsel
did not learn about three other potential witnesses until he reviewed the offense reports at
trial, all three of whom could have testified that Shaka, the Temple family’s chow, ordinarily
“had access to the garage.” Other witnesses did testify to this fact at trial, however.39 And in
any event, the fact that Shaka had “access” to the garage does not necessarily establish that
he was in the garage at the time that Belinda was killed, and therefore could not have been
expected to bark at any intruders. The testimony of these three additional witnesses would
have added only quite modestly to any inference favorable to the defense, and not enough to
establish any significant incremental materiality.
Applicant’s Emotional Response: The habeas court recommends a finding that the
late-disclosed offense reports also revealed two witnesses who could have attested that
Applicant reacted emotionally at the scene to Belinda’s death, sobbing with his head in his
hands and appearing weak-kneed. Had he learned of the additional witnesses earlier, defense
counsel may have had time to interview them and to subpoena them for trial. Other witnesses
did testify at trial to Applicant’s apparent emotional response, however, to counteract the
testimony of sheriff’s investigators who conveyed to the jury their impressions that Applicant
seemed emotionless at the scene. One of Applicant’s brothers testified at trial that Applicant
39
For example, Michael Ruggiero, a neighbor who lived across the street from the Temples,
testified that the latch on their back gate was not catching properly, and that the Temples would
therefore keep Shaka in the garage so he could not get out. His wife, Peggy, testified that she had
observed Belinda arriving home on occasion and pulling into the garage. Belinda would honk the
horn once the garage door had opened to signal for Shaka to move out of the way.
TEMPLE — 30
appeared to be in shock. His mother testified that he had apparently been crying. Later, she
maintained, after he was interrogated by sheriff’s investigators and allowed to leave,
Applicant was “completely distraught and broken.” But these were family members, whose
testimony could have been discounted by the jury as self-serving. Testimony of non-family
witnesses with respect to Applicant’s demeanor was favorable to the defense and defense
counsel’s failure to recognize their significance adds marginally to the incremental
materiality.
RJS’s Girlfriend: Although the habeas court does not mention it in its recommended
findings of fact, there is another piece of information that was not revealed to defense
counsel until he was allowed to review the offense reports at trial. Niki Biondo was RJS’s
girlfriend at the time of Belinda’s murder. She told sheriff’s investigators that sometime
between 6:30 and 7:00 p.m. on the evening of the murder, RJS called her in a very emotional
state (“crying”) and told her that his next-door neighbor had been “shot”—not killed, but
“shot.” It is unclear how RJS could have learned this detail so soon after the fact. The
sheriff’s investigators did nothing to follow up on this lead. At the writ hearing, the State
speculated that RJS could have heard this detail from bystanders on the street in the hour or
so following Belinda’s murder, notwithstanding that the sheriff’s investigators would have
taken pains, at least in theory, to conceal the specifics of the crime scene. A jury would not
have been constrained to accept the State’s speculation, however, and it would have been
important for Applicant to discover Biondo’s statement in time to track her down and
TEMPLE — 31
interview her, to test the apparent exculpatory value of her story. She may have proven to be
an important witness for the defense, and defense counsel’s failure to recognize her potential
importance in the limited time he had to review the offense reports also adds to the
incremental materiality.
D. Collective Materiality
Because materiality is to be assessed “collectively, not item by item[,]” Kyles, 514
U.S. at 436, the question becomes: Is there sufficient undisclosed Brady evidence that, when
taken together with Applicant’s showing of incremental materiality of the late-disclosed
evidence, would undermine our confidence in the result of Applicant’s trial? I have found
little that I regard as significant undisclosed Brady evidence, and not a great deal of
incremental materiality in Applicant’s claims of late-disclosed Brady evidence. In short, the
record simply fails to reveal much Brady evidence—either undisclosed evidence with
significant exculpatory or impeaching value or late-disclosed exculpatory or impeaching
evidence that is incrementally material—to measure collectively for materiality.
For this reason, I would not grant relief on the basis of Brady, but would instead grant
relief on the basis of ineffective assistance of counsel. Though the habeas court
recommended that we reject all of Applicant’s claims of ineffective assistance of counsel,
it made few specific findings of fact with respect to any of these claims.40 In my view,
40
The habeas court simply concluded that Applicant’s “current claim that trial counsel
provided ineffective representation has not been shown to meet the Strickland requirements and
relief is not justified.” Such a perfunctory conclusion has little utility. When “the habeas judge’s
TEMPLE — 32
Applicant has established by a preponderance of the evidence that defense counsel was
deficient in at least one critical aspect, and in the context of this particular trial, that
deficiency could well have proven to be a game-changer.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. The Strickland Standard
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
encapsulated the Sixth Amendment standard for measuring the effectiveness of counsel:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction . . . has two components. First,
the defendant must show that counsel’s performance was deficient. This
requires a showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. A habeas applicant is entitled to relief if he can demonstrate both deficient
performance and prejudice by a preponderance of the evidence. Ex parte Moore, 395 S.W.3d
152, 157 (Tex. Crim. App. 2013).
With respect to the deficiency component of the Strickland standard, “[t]he proper
measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. Counsel has “a duty to bring to bear such
findings do not resolve the disputed fact issues, this Court must exercise its role as the ultimate
finder of fact.” Ex parte Flores, 387 S.W.3d 626, 635 (Tex. Crim. App. 2012). Fortunately, the
factual development in the record is more than sufficient to provide a basis to glean the relevant facts
ourselves and draw conclusions of law from them.
TEMPLE — 33
skill and knowledge as will render the trial a reliable adversarial testing process.” Id.
Appellate review of counsel’s performance must be deferential, and “every effort [must] be
made to eliminate the distorting effects of hindsight[.]” Id. at 689. An applicant for post-
conviction habeas relief who claims his attorney performed deficiently must overcome the
presumption “that counsel . . . rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690.
In order to establish that his attorney’s deficiency was prejudicial, a habeas applicant
“must show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. A “reasonable
probability” of a different result means more than that the error “had some conceivable effect
on the outcome of the proceeding”; but the applicant “need not show that counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at 693. In short, “[a]
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. To this end, “[s]ome errors will have had a pervasive effect on the inferences to
be drawn from the evidence, altering the entire evidentiary picture, and some will have had
an isolated, trivial effect.” Id. at 695-96. “Moreover, a verdict . . . only weakly supported by
the record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696.
While a reviewing court “normally looks to the ‘totality of the representation’ and ‘the
particular circumstances of each case’ in evaluating the effectiveness of counsel, Ex parte
TEMPLE — 34
Raborn, 658 S.W.2d 602, 605 (Tex. Cr[im]. App. 1983), the Court has also found that under
some circumstances a ‘single error of omission by . . . counsel [can] constitute[ ] ineffective
assistance.’ Jackson v. State, 766 S.W.2d 504 (Tex. Cr[im]. App. 1985), modified on other
grounds on remand from the U.S. Supreme Court 766 S.W.2d 518 (Tex. Cr[im]. App.
1988).” Ex parte Felton, 815 S.W.2d 733, 735-36 (Tex. Crim. App. 1991). See also,
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“[I]t is possible that a single
egregious error of omission or commission by [applicant]’s counsel constitutes ineffective
assistance.”) (internal quotation marks omitted).41 The United States Supreme Court has
likewise recognized that the Sixth Amendment “may in a particular case be violated by even
an isolated error of counsel if that error is sufficiently egregious and prejudicial.” Murray v.
Carrier, 477 U.S. 478, 496 (1986). One mistake may, in some instances, prove momentous
enough to justify the conclusion both that the attorney rendered constitutionally deficient
performance and that the impact of that deficiency was such as to undermine appellate
41
E.g., Ex parte Scott, 581 S.W.2d 181 (Tex. Crim. App. 1979) (ineffective counsel at the
punishment phase for failure to uncover the invalidity of a prior conviction that was used to
enhance); May v. State, 722 S.W.2d 699 (Tex. Crim. App. 1984) (failure to file a sworn application
for probation when the evidence demonstrated eligibility); Ex parte Zepeda, 819 S.W.2d 874 (Tex.
Crim. App. 1991) (failure to request an accomplice-witness instruction requiring corroboration of
the testimony of several accomplices as a matter of law); Vasquez v. State, 830 S.W.2d 948 (Tex.
Crim. App. 1992) (failure to request instruction on the defense of necessity when the evidence raised
the issue); Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) (failure to request limiting
instruction/reasonable doubt instruction with respect to extraneous offenses that were integral to the
State’s proof); Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (failure to investigate
the validity of a prior conviction used to enhance punishment); Villa v. State, 417 S.W.3d 455 (Tex.
Crim. App. 2013) (failure to request instruction on medical care defense when the evidence raised
the issue); Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016) (failure to impeach chief witness
for the State with his prior inconsistent statements).
TEMPLE — 35
confidence in the result of the proceeding. “Although the [appellate] court must look to the
level of counsel’s overall performance, clearly negligent treatment of a crucial deficiency in
the prosecution’s case or an obvious strength of the defense will outweigh the adequate
handling of a series of minor matters.” 3 W. LaFave et al., C RIMINAL P ROCEDURE § 11.10(c),
at 1156-57 (4th ed. 2015).
I believe that is the case here. Although the question of attorney deficiency in this case
is a close one in light of defense counsel’s overall performance, his mistake was a serious
one. And there is a substantial basis to conclude, given the totality of this record, that the
impact of that mistake, however isolated, could well have been profound.
B. Trial Counsel’s Deficiency
The deficiency in this case centers on the trial testimony of Applicant’s father, Charles
Kenneth Temple, Jr., who testified as a defense witness at trial.42 On the night of Belinda’s
murder, Kenneth had given a written statement to the sheriff’s investigators. Asked about the
time that Belinda had dropped by his residence to pick up the homemade soup for the ailing
ET on her way home, Kenneth maintained that he had gotten home from work at 3:30 p.m.,
“and Belinda arrived about fifteen minutes later at approximately 3:45 P.M.” She “visited
with us for a few minutes” and then, “I guess it was around 3:55 P.M. at the time she left.”
Testimony at trial indicated that the drive from Kenneth’s residence to Applicant and
42
The reporter’s record at trial identified the witness as “Kenneth,” not by his first name
“Charles,” and I conform to that designation in this opinion.
TEMPLE — 36
Belinda’s house takes about fifteen minutes.43 Thus, according to Kenneth’s original
estimate, Belinda could not have arrived home much earlier than 4:10 p.m. This would have
left only a very narrow window of time—ten minutes or so—during which Applicant could
have forced or coaxed Belinda into the walk-in closet, killed her, potentially changed his
clothes,44 staged a burglary, hustled ET into his truck, and still arrived at the supermarket by
4:32 p.m.45 Defense counsel was aware of the content of Kenneth’s written statement well
in advance of trial.
When Kenneth testified before the grand jury in early April of 1999, he gave the same
time estimates: Belinda arrived at his house “at 3:45,” and they visited “for a few minutes
standing there in the garage.” “She probably was at my house from 3:45 to 3:55. I think she
left about five minutes till 4:00.” He confirmed that the drive from his house to Applicant
and Belinda’s home was “[a]bout 15 minutes.” Defense counsel was provided with a copy
of Kenneth’s grand jury testimony in the middle of the State’s cross-examination. In any
event, he would have known at the time of trial from Kenneth’s written statement to the
sheriff’s investigators that Kenneth’s pre-trial estimate was quite favorable to his defensive
posture, since it supports a time-line that would have made it even more problematic for a
43
At the writ hearing, Detective Leithner confirmed that in his offense report he had indicated
that it had taken him approximately sixteen minutes to drive the distance from Kenneth’s house to
Applicant’s.
44
See note 23, ante.
45
This was the time that the security video showed Applicant and ET entering the
supermarket.
TEMPLE — 37
jury to conclude that Applicant could have murdered Belinda.
Inexplicably, Kenneth remembered the time-line differently at trial. He claimed once
again that he got home at 3:30 p.m. Defense counsel asked him to give his “best estimate or
if you looked at a clock, when did Belinda get there?” Kenneth told the jury, “3:32, or close
to that.” A short while later, defense counsel asked, “And then when did she leave.” Kenneth
answered, “In minutes. 3:45 at least.” Defense counsel then asked Kenneth how long the
drive was between the two houses. Kenneth answered:
A. 15 to -- 15 plus minutes.
Q. Okay. And she left there at 3:45?
A. Yes.
This estimate would have placed Belinda at home much closer to 4:00 o’clock, in
conformance with the State’s theory of the case. Though the prosecutor showed Kenneth
selected portions of his grand jury testimony while she cross-examined him at trial, she never
showed him his earlier testimony with regard to the time-line.
Kenneth testified again during the writ hearing. At this point, he reverted to his
original account of the time-line, asserting once again that Belinda did not arrive at his house
until 3:45, stayed for about ten minutes, and left “by 3:55.” Kenneth maintained that he had
given defense counsel a copy of his written statement to the sheriff’s investigators on more
than one occasion prior to trial. Even so, he maintained, defense counsel never advised him
to review his written statement before testifying at trial. Kenneth reiterated that his grand jury
TEMPLE — 38
testimony with respect to his time estimates was consistent with his written statement. When,
on cross-examination at the writ hearing, the State’s habeas counsel showed Kenneth a
transcript of his trial testimony to confirm that he had given a different time estimate at trial,
Kenneth seemed incredulous:
Q. Do you recall what you testified to during your son’s trial back
in 2007 as to what time Belinda Temple left her house?
A. I don’t remember that specifically, no. I remember my written
testimony [sic], not that.
Kenneth insisted that his testimony at trial had been inaccurate. He reiterated that defense
counsel had not instructed him before his trial testimony to review his written statement, nor
did he review it on his own accord “during the trial.”
For his part, defense counsel made no excuses for this lapse when he testified at the
writ hearing. He admitted that Kenneth had given him a copy of his written statement “soon
after I became involved in the case.” Applicant’s counsel then asked defense counsel:
Q. Which of these two timelines are more beneficial to the defense,
alibi defense for [Applicant]?
A. Well, the one of Ken Temple’s timeline. The one that has
Belinda arriving at the Temple home, Mr. and Mrs. Temple’s
home at 3:45 and then leaving at 3:55, because that would put
her at [Applicant] and Belinda’s home about 15 minutes later,
which would make it after 4 o’clock.
Q. Can you think of any reason why you did not use that second
timeline?
A. I have no explanation for it. I don’t know.
TEMPLE — 39
***
Q. Can you imagine how you made that mistake?
A. No.
Q. Was it intentional?
A. No.
Q. Is there any strategic reason why you would not make at that
time your only defense as close to 4:30 as possible?
A. No.
***
Q. Now, can you imagine any reason why you did not use
[Kenneth’s written statement] to refresh the memory of [Kenneth] when [he]
said I got home -- she got to the house at 3:32?
A. No.
Q. And left at 3:45?
A. No. It was obviously different from his written statement, and I
should have gone up and shown him his written statement and say “Does this
refresh your recollection,” but I did not.
Q. Have you done that before?
A. I have.
Q. On few or many occasions refreshing a witness’ memory with
a prior written statement?
A. Well, you know, that’s second-year law school evidence. You
can do that. I’ve done it a lot of times.
TEMPLE — 40
***
Q. . . . Mr. [defense counsel], is there any reason whatsoever for
you, from a strategic perspective, not to use [Kenneth]’s timeline?
A. No.
Q. Did it harm your client not to use his timeline?
A. I now believe it did, yes.
Q. Why?
A. Well, because it gave more time to be explained. That is, more
time to do what the State envisioned that [Applicant] did, that is, time to kill
Belinda, get rid of the shotgun.
Strictly speaking, of course, defense counsel was mistaken to assume that he could
have used Kenneth’s written statement to refresh Kenneth’s memory on the witness stand—at
least not over an objection from the State. Kenneth did not purport to suffer from a lapse of
memory while testifying at trial; he seemed to remember well enough. See Callahan v. State,
937 S.W.2d 553, 559 (Tex. App.—Texarkana 1996 no pet.) (predicate for using a document
to refresh a witness’s memory includes a showing that “his memory needed to be
refreshed”).46 He just remembered differently than he had in the past. Nevertheless, a party
46
In Welch v. State, 576 S.W.2d 638, 641 (Tex. Crim. App. 1979), we explained:
A witness testifies from present recollection what he remembers presently
about the facts in the case. When that present recollection fails, the witness may
refresh his memory by reviewing memorandum made when his memory was fresh.
After reviewing the memorandum, the witness must testify either his memory is
refreshed or his memory is not refreshed. If his memory is refreshed, the witness
continues to testify and the memorandum is not received as evidence. However, if the
witness states that his memory is not refreshed, but has identified the memorandum
and guarantees the correctness, then the memorandum is admitted as past recollection
TEMPLE — 41
may impeach his own witness. See T EX. R. E VID. 607 (“Any party, including the party that
called the witness, may attack the witness’s credibility). Defense counsel could have laid the
predicate, under Rule of Evidence 613, to use Kenneth’s written statement to elicit the fact
that Kenneth had made an inconsistent statement in the past—in the hope that reminding
Kenneth of his prior written statement would jog Kenneth’s memory and cause him to revise
the substance of his trial testimony. T EX . R. E VID. 613. Moreover, once he learned during
Kenneth’s cross-examination that Kenneth had testified to the grand jury consistently with
his written statement, he could have impeached him with that as well, if necessary.
More to the point, defense counsel should have better prepared this witness for his
critical trial testimony; at the very least, he should have asked Kenneth to review his written
statement before taking the witness stand, to refresh his memory before trial. See, e.g.,
Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d) (trial counsel
provided ineffective assistance of counsel by putting his client on the witness stand without
properly preparing him to testify). Perhaps defense counsel was distracted from his ordinary
witness-preparation duties because he was busy exploring the many new evidentiary leads
while in the process of trying his case—a product of the State’s belated disclosure of so much
information that was favorable to the defense.
Notwithstanding defense counsel’s admission at the writ hearing, the State argues that
recorded.
(Emphasis supplied). All of this is contingent on a lapse of present recollection.
TEMPLE — 42
his performance was not constitutionally deficient because failing to challenge Kenneth’s
trial testimony was nonetheless objectively reasonable. We have indeed held that trial
counsel’s conduct must be measured by an objective standard of reasonableness, and “a
decision not motivated by strategy might be objectively reasonable.” Ex parte Saenz, 491
S.W.3d 819, 829 (Tex. Crim. App. 2016). From this proposition, the State seems to argue
that, because defense counsel might reasonably have chosen to stand on Kenneth’s trial
testimony, not challenge it, we may not find that his performance was constitutionally
deficient. I ultimately disagree, for two reasons.
First of all, to the extent the State is suggesting that defense counsel actually made a
strategic decision to let Kenneth’s trial testimony stand unchallenged, the record presents
little evidence to support that conclusion. Defense counsel denied it, insisting that he had
simply made a mistake. “Whether a counsel’s action or inaction is based on a strategic choice
is a factual question, on which the defendant can offer evidence when the incompetency
challenge is presented in a post-conviction proceeding (as often must be the case).” LaFave,
C RIMINAL P ROCEDURE § 11.10(c), at 1133. There is no compelling reason to reject defense
counsel’s testimony in this regard. See Saenz, 491 S.W.3d at 828 & n.9 (refusing to indulge
the appellate presumption that counsel’s decisions were strategically motivated in the context
of a post-conviction habeas corpus proceeding at which “the record . . . was developed, and
TEMPLE — 43
trial counsel was able to adequately respond”).47 I have no trouble believing that, presented
for the first time in the middle of trial with an abundance of vital new information to support
a new defensive theory—an alternative suspect—defense counsel lost his focus when
executing his original defensive plan of alibi. As ultimate factfinder in post-conviction
habeas corpus proceedings, we are free to accept trial counsel’s assurance that his conduct
was not based on trial strategy, even if the record presents some basis to believe that some
objective strategy could have justified it. See Saenz, 491 S.W.3d at 829 (“[A]s the ultimate
47
When ineffective counsel is alleged on direct appeal, it is usually the case that the record
is silent with respect to whether counsel’s action or inaction was the product of strategy or mistake.
Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). “An ineffectiveness claim raised
on direct appeal is limited to what the trial record reveals as to the grounding for counsel’s actions,
and here the appellate court commonly will assume a strategic motivation if any can possibly be
imagined.” LaFave, supra, at 1137. In the post-conviction context, however, where ineffectiveness
of counsel has been alleged and the record has been developed with respect to counsel’s actions, this
appellate assumption no longer controls. Saenz, 491 S.W.3d at 828 & n.9. If trial counsel concedes
that his challenged act or omission was not the product of strategy, the objective existence of a
plausible strategic basis for the act or omission may provide a reason to doubt the genuineness of his
concession. That would justify a finding of fact that his choice was, in fact, a strategic one
notwithstanding his concession otherwise. But, as the ultimate fact-finder in post-conviction habeas
corpus proceedings, we remain free to accept trial counsel’s concession. Id. at *7. This is unlike in
the appellate context, where appellate courts must defer to a trial court’s finding with respect to the
credibility of counsel’s claim that an act or omission was inadvertent rather than strategic. See
Okonkwo v. State, 398 S.W.3d 689, 694 & n.4 (Tex. Crim. App. 2013) (where trial counsel claimed
lack of strategic motive for an omission at trial, appellate court “should have deferred to the trial
court’s implied finding that counsel’s affidavit lacked credibility”). Of course, even in the post-
conviction context, we usually defer to the recommended findings of the convicting court when they
are supported by the record. E.g., Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim. App.
2007). Here, however, the habeas court made only one finding of fact relevant to this ineffective
counsel claim: “Defense counsel did not use Charles Kenneth Temple’s written statement timeline.”
It made no recommended finding with respect to the credibility of defense counsel’s concession that
his failure to do so was an oversight, not the product of strategy. The only question that remains with
respect to the performance prong of Strickland is whether that mistake was one that fell outside the
bounds of reasonable professional standards.
TEMPLE — 44
factfinder in habeas proceedings, we decline to adopt the habeas court’s finding that trial
counsel might have made a reasonable strategic decision . . . .”). Accordingly, I decline to
automatically adopt the State’s “post hoc rationalization of counsel’s conduct” in place of
counsel’s own explanation. Wiggins v. Smith, 539 U.S. 510, 526-27 (2003).
Secondly, the State’s asserted justification strikes me as less than objectively
reasonable. The State argues that defense counsel was content to let Kenneth’s trial testimony
go uncorrected because it was consistent with the account he would later elicit from
Applicant himself during Applicant’s own trial testimony. Were I to regard this as a plausible
tactical choice, it might present me with a reason to reject, as disingenuous, defense counsel’s
concession that his failure was a mistake, and to conclude instead that it was a reasonable
tactical decision in keeping with his overall strategy in the case. But, for reasons I develop
next, I find the State’s proposed defensive strategy untenable.
In Applicant’s own written statement to sheriff’s investigators, also taken on the night
of the murder, he estimated that Belinda “got home around 3:45 P.M.” When he testified at
trial, however, he claimed he did not know exactly what time Belinda had gotten home
because he had taken his watch off to bathe ET. He guessed, however, that she had gotten
home closer to 4:00 p.m. The State argues that defense counsel made a deliberate decision
not to impeach Kenneth’s earlier testimony because the estimate Kenneth had given at
trial—that Belinda left his house at 3:45 p.m.—was consistent with Applicant’s own (albeit
revised) estimate that she had arrived home approximately fifteen minutes later, at 4:00 p.m.
TEMPLE — 45
The State theorizes that defense counsel deliberately chose to forego corrective measures
with respect to Kenneth’s testimony in order to avoid any later contradiction of Applicant’s
own time estimate and to thereby maintain Applicant’s credibility.
I find this theory questionable. Both Kenneth and Applicant were asked at trial to
supply their best estimates of the time-line, and the jury was not necessarily expecting perfect
precision. Defense counsel had nothing to lose and everything to gain by propounding the
most favorable estimate available—regardless of whether it might conflict slightly with his
client’s. After all, under Applicant’s own estimate, which placed Belinda home about 4:00,
it would have been difficult, but not inconceivable, for him to have committed the offense
and still arrived at the supermarket by 4:32 p.m. But under Kenneth’s pre-trial estimate,
placing Belinda home much closer to 4:10 p.m., it would have been practically impossible.
I do not think that any reasonable defense lawyer would adopt the State’s proposed strategy
under these circumstances, and I decline its invitation to find that defense counsel in fact
did.48
48
This is not to say that the record is wholly devoid of any support for the State’s argument.
For instance, as part of a mock trial in preparation for Applicant’s trial, the defense team apparently
prepared a “Juror Notebook” containing a time-line which listed the time of Belinda’s arrival home
as “3:55 p.m.” Similarly, during his opening statement to the jury at the beginning of trial, defense
counsel told the jurors that the evidence would show that Belinda arrived home “between 3:45 and
4:00 o’clock sometime.” This time-frame was consistent with Applicant’s statement to sheriff’s
investigators (3:45), as later revised by his trial testimony (4:00).
But other excerpts from the trial record support defense counsel’s assertions at the writ
hearing that he simply made a mistake, not a strategic choice that he regrets in hindsight. For
example, at one point during Applicant’s direct examination at trial, in trying to establish what time
Belinda must have arrived home, defense counsel asked Applicant:
TEMPLE — 46
Defense counsel failed to properly prepare Kenneth to testify consistently with his
written statement with respect to a particular fact that was vital to the optimal presentation
of his original defensive posture in the case. He was also unprepared to impeach Kenneth in
the event that he persisted in testifying differently than his written statement. I would hold
that these failures constituted an omission that fell below the standard of reasonable
professional competence. I would hold that Applicant has satisfied the deficient-performance
prong of Strickland, and I turn next to the question of prejudice.
C. Prejudice
The question before us on discretionary review in this case was legal sufficiency:
whether a rational jury could convict Applicant on the basis of the facts presented. We held
that the circumstantial evidence supported a rational jury verdict of guilty beyond a
reasonable doubt. Temple, 390 S.W.3d at 363. But rational juries can acquit even when the
Q. So if [Belinda] left [Kenneth’s house] at 3:50, 3:55 she would have
gotten [home] what time?
The prosecutor astutely objected that defense counsel’s question “assumes facts not in evidence.”
Because Kenneth’s trial testimony placed Belinda’s departure at 3:45, not “3:50, 3:55,” as defense
counsel’s question posited, the trial court correctly sustained this objection. Nevertheless, more than
once defense counsel asked Applicant questions that seemed to assume that Kenneth’s earlier trial
testimony had been consistent with Kenneth’s prior written statement. These exchanges strongly
suggest to me that defense counsel simply did not realize that Kenneth had testified differently, and
that his failure to try to correct Kenneth was a mistake, not a strategic choice. Defense counsel’s
second chair attorney confirmed that it had been the defensive strategy at trial “to try to get Belinda
home as close to 4:32 as possible” because “the closer [to 4:32] that she arrives to the house, the
more favorable it is to the defense.” “Courts . . . readily find ineffective assistance when counsel’s
testimony at a post-conviction evidentiary hearing establishes that a failure to act on an important
matter was a product of inattention in a setting where the missed option was obvious.” LaFave,
supra, at 1161.
TEMPLE — 47
evidence is legally sufficient to convict,49 and the question before us in gauging the prejudice
prong of Strickland is not one of sufficiency of the evidence. Cf. Kyles v. Whitley, 514 U.S.
at 434 (Brady’s materiality standard, which is essentially the same as Strickland’s prejudice
prong, “is not a sufficiency of evidence test”). Given the evidence that Applicant’s jury heard
in this case, a rational jury might just as readily have acquitted him. Even the State’s
evidence presented some basis to doubt whether Applicant could possibly have had time to
perpetrate the offense, and there is further evidence of a viable second suspect who was close
at hand and who also arguably had a motive to commit Belinda’s murder. In short, the jury’s
verdict, though rational, was hardly “one with overwhelming record support.” Saenz, 491
S.W.3d at 833 (quoting Strickland, 466 U.S. at 696). When that is the case, reviewing courts
may more readily conclude that deficient attorney performance results in prejudice. Id.
“Applying that principle here,” id., it is not hard to imagine that defense counsel’s
mistake, isolated as it was, could have tipped the precarious balance the other way. Add to
the existing record the evidence that the jury would have heard but for defense counsel’s
failure to properly prepare Kenneth to testify, and there is a reasonable probability that a
rational jury would harbor a reasonable doubt that Applicant was the murderer. Had defense
counsel been less distracted by late-disclosed evidence and therefore better focused to
prepare his witness, there is little reason to doubt that Kenneth would have reverted to his
49
See Johnson v. Louisiana, 406 U.S. 356, 362 (1972) (“Jury verdicts finding guilt beyond
a reasonable doubt are regularly sustained even though the evidence was such that the jury would
have been justified in having a reasonable doubt[.]”).
TEMPLE — 48
original time estimate. And had the jury heard and credited Kenneth’s original time estimate,
it might more readily have concluded that Applicant could not have had time to kill
Belinda,50 and it may therefore have given more credence to the alternative hypothesis—in
some respects, better supported by the evidence—that RJS was the perpetrator.
The Strickland standard does not require us to conclude that such a scenario is more
likely than not before habeas corpus relief is appropriate. 466 U.S. at 693. “The result of a
proceeding can be rendered unreliable, and hence the proceedings unfair, even if the errors
of counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” Id. at 694.51 In view of the overall context in which this trial occurred, it is no
great stretch to declare that our confidence in the result of Applicant’s trial has been
undermined, and that is enough to establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. I conclude
that he has established by a preponderance of the evidence both deficient performance and
prejudice, and thus he has established that he suffered a deprivation of his Sixth Amendment
50
As it is, relying on the estimate that Applicant originally gave to sheriff’s investigators that
Belinda arrived home as early as 3:45 p.m., the State argued during its final summation at the guilt
phase of trial that Applicant enjoyed as much as 47 minutes to perpetrate the offense and get to the
supermarket. Defense counsel was unequipped to refute this scenario in his own final argument. Had
defense counsel properly prepared Kenneth to testify consistently with his original statement to the
police and his grand jury testimony, then defense counsel would have been in a position to argue to
the jury that Applicant had no more than ten minutes in which to commit the offense.
51
Indeed, as is the case with the Bagley test for materiality, under the Strickland test for
prejudice, Applicant “can prevail even if” trial counsel’s deficiency “may not have affected the jury’s
verdict.” Wearry v. Cain, 136 S. Ct. at 1006 n.6.
TEMPLE — 49
right to the effective assistance of counsel.
IV. CONCLUSION
Accordingly, I concur in the Court’s judgment to reverse Applicant’s murder
conviction and remand him to the custody of the Harris County Sheriff to answer to the
indictment against him.
FILED: November 23, 2016
DO NOT PUBLISH