Sixta, Daniel James ( 2015 )

I 1
WRIT NUMBER: WR-60-547-13
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN,TEXAS COURT OF CRIMINAL APPEAL*
FEB 23 2015
EX PARTE Alb8lAoos£a8CI@irk
DANIEL JAMES SIXTA
APPLICANT.
APPLICANT'S SUGGESTION FOR
RECONSIDERATION ON THE COURT'S
OWN INITATIVEo TRAP 79.2(D).
Trial Court Cause Number:923949, from the
351st District Court of Harris County, Texas
Daniel James Sista
Applicant- pro se
TDCJ #:1143232
H.H. Coffield Unit
2661 F.M. 2054
Tennessee Colony,TX 75884
ORAL ARGUMENT REQUESTED.
WRIT NUMBER: WR-60-547-13
IN THE
COURT OF" CRIMINAL APPEALS"
AUSTIN,TEXAS
EX PARTE
DANIEL JAMES SIXTA
APPLICANT.
APPLICANT'S SUGGESTION FOR
RECONSIDERATION ON -THE COURT' S
OWN INITATIVE. TRAP 79.2(D).
Trial Court Cause Number:923949, from the
351st District Court of Harris County, Texas
Daniel James Sixta
Applicant- pro se
TDCJ #:1143232
H.H. Coffield Unit
2661 F.M. 2054
Tennessee Colony,TX 75884
ORAL ARGUMENT REQUESTED,
WRIT NUMBER: WR-60-547-13
EX PARTE
DANIEL JAMES SIXTA
APPLICANT
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
Applicant suggests tbf- the'-Court it should on its own motion
or its own initative, pursuant to ". Texas Rules of Appellate
Procedure 79.2(d), reconsider the denial of his application
for a writ of habeas corpus.
A. INTRODUCTION
The Applicant is Daniel James Sixta; the respondent is
the State of Texas by and through the Harris County District
Attorney.
Applicant suggests , on its own initative, the Court.recon
sider the denial of Applicant's application for a writ of habeas
corpus.
B.w FACTS
On December 12, 2002, Applicant was convicted of the offense
EX PARTE SIXTA-MOTION 79.2(d) PAGE.1
of Intoxication Manslaughter and sentenced to 20 years confine
ment in the Texas Department of Criminal Justice, with a 5,000
dollar fine.
Applicant entered a Plea; of NOT-Gulity. His trial was
before a jury for the guilt-innocence and the punishment. App
licant testified only at the punishment phase of the trial.
Applicant's conviction was affirmed by the First Court
of Appeals on December 18, 2003./ The Appellate cause number
is: 01-02-01316-CR. Applicant filed a Petition for Discretionary
Review (NO. 032804) which was denied in 2004.
Applicant's first application for a writ of habeas corpus
under art. 11.07 was denied on July 26, 2006. His second applic
ation seeking relief from the final judgment was dismissed for
non-compliance, on May 23,v2012.
Importantly, before the filing of his third application
for writ of habeas corpus, the legislative enactment of Article
11.073, went into effect. Applicant alleged in his third writ
application that this new law, and new scientific evidence,
unavailable prior to October 1, 2013, entitled him to pass•thro
ugh the gate-keeping provision of Section 4 of art. 11.07.
This court denied his third application on:
C. ARGUMENT & AUTHORITIES
a. Texas Rules of Appellate procedure,,79.2(d)
Texas Rules of Appellate procedure,Rule 79.2 provides "A
motion for rehearing on order that denies habeas corpus relief
EX PARTE SIXTA-MOTION 79.2(d) PAGE,2
under Code of Criminal Procedure, articles 11.07..., may not
be filed. The Court may on its own initative reconsider the
Case." Tex.R.App. P'roc. Ann. 79.2(d) (Vernon's 2013). See, Ex
parte Moussazadeh,(Tex.Crim.App. 2012, 2012 WL 468518)(Moussaza-
deh's suggestion that the Court reconsider the denial of his
previous application for writ of habeas corpus, on its own mot
ion .)
b. Texas Code of Criminal Procedure, art. 11.073.
This past legislative session, Senate Bill 344 was passed
and was codified as Article 11.073 of the Code of Criminal Proc
edure to create an avenue for relief for people who were wrong-
fuly convicted as a result of unavailable or erroneous scientific
evidence. This statute, which took effect on September 1, 2013,
allows for a writ of successive writ of habeas corpus to be
brought concerning relevant scientific evidence that: "(1) was
not available to be offered in evidence by a convicted person
at the convicted person's trial; or (2) contradicts scientific
evidence relied on by the State at trial." Act of June 14,
2013, 83rd Leg., R.S., Ch. 412 2013, Tex.Sess.Law Serv. 1197
(West 2013) (codified at Tex.Code Crim. Proc. Ann, art. 11.073).
Additionally, in order to consider new advances in science,
the statute directs the trial court to make a finding to [c]on-
whether the scientific knowledge or method on which the relevant
scientific evidence is based has changed since "the trial date
or the date that the original" or previously-considered applic-
EX PARTE SIXTA-MOTION 79.2(d) ~~ PAGE.3
ion for writ of habeas corpus was filed." Id.
Prior to the passage of this bill, under the strict limit
ations of the Code of Criminal Procedure, the convicted were
only allowed to advance one writ of habeas corpus, absent strict
procedural hurdles.(See Tex.Code.Crim.Proc. Art. 11.07 §4.) The
result was that when scientific principles were undermined by
advancing science, those convictions could not be challenged.
The rationale in the passage of this statute was most likely
the procedurally-complex case of Neal Hampton Robbins.
In Ex parte Robbins, 360 S.W.3d 446, 448 (Tex.Crim.App.
2011), Mr. Robbins sought relief from his 1999 Montgomery County
capital murder conviction, which had been based largely upon
testimony of the medical examiner. The medical examiner testif-
ifed that the death of the complainant child was the result
of asphyxia from compression. Id. at 460- Years after her test
imony, the medical examiner stated that she could no longer
stand by her prior testimony that the death was a homicide.
Id. at 499. The Examiner claimed she "[c]ould no longer testify
within a reasonable of medical certainty that the complainant's
death in this case was the result of compression asphyxia" or
"[t]hat the [manner] of death in this case was homicide." Id.-at
460. After hearing from numerous experts and witnesses, the
Trial court recommended that Mr. Robbins be granted a new trial
"[bjcause his due process and :due course of law rights were
violated, as was his right to an impartial jury." Id. at 457.
EX PARTE SIXTA-MOTION 79.2(d) PAGE,4
Despite the typical deference given to Trial court's" findings,
the Court of Criminal Appeals denied relief, determining that
at the time the medical examiner gave her testimony it was not
"false." Id at 463. The rationale was based largely on the fact
that Robbins had not unquestionably established his innocence.
In dissent, Judge Cochran expressed the difficulties with the
case as follows:
When scientific experts honestly and sincerely thought
"X" was true at the time they testified, but the sci
ence has changed or the experts' understanding of
of the science has changed and their opinions have
changed, what cognizance of the change should the
the criminal justice system take long after a person
has been convicted? Id. 469 (Cochran, J., dissenting).
To put Robbins in context, a review of Ex parte Henderson
384 S.W. 833 (Tex.Crim.App. 2012) is helpful. In Henderson,
a child's death was again the offense, but the crucial issue
was whether the short-distance fall that resulted in the death
'could' have been an accident. The single contested issue
in the 1995 capital-murder trial was whether applicant intended
to kill [the complainant] or whether she recklessly, negligently,
or accidentally caused his death." Id. at 838. At the original
trial, the medical examiner "[t]estified that it was 'impossible'
for the [complainant's] extensive brain injuries to have occurred
in the way that applicant stated. He testified that her story
was false and incredible.'" Ex parte Henderson,246 S.W. 3d 690,
691 (Tex.Crim.App. 2007). The medical examiner opined it was
an "intentional murder," and further declared, "[I] would
EX PARTE SIXTA-MOTION 79.2(d) PAGE,5
say the baby was caught up with the. hands by the arms along
the body and then swung and slammed very hard against a flat
surface." Id at 691.
However, the science of biomechanics had advanced rapidly
between Henderson's trial and 2007, when she sought a stay of
execution. At that time, and after considering the new scient
ific reports, the medical examiner stated:
Since 1995, when I testified..., the medical profession
has gained a greater understanding of pediatric head
trauma and the extent of injuries that can occur in
...relatively short distance falls, based in part
on the applicantion of .principles of phyiscs and bio
mechanics.... If this new scientific information
had been available to me in 1995, I would have taken
it into account before attemption to formulate an
opinion about the circumstances leading to the injury.
Henderson, 383 S.W.3d at 839
While the Henderson Court in a per curiam, one-page opinion,
did "[n]ot accept the trial court's conclusions concerning actual
innocence," but accepted "[t]he court's recommendation to
grant relief and remand for a new trial." id at 834. And while
opinion did not distinguish Robbins, Judge Cochran concurred
in the granting of the new trial, but noted that "[t]his case
raises the same novel and difficult issue for the criminal-
justice system that this court faced, and , I maintain, fumbled
in Ex parte Robbins." Id. at 837 (Cochran, J. Concurring) In
trying to explain the distinction between the two cases, Judge
Alcala wrote in a concurring opinion that "[t]his trial court
finds that new scientific evidence is the basis for ordering
a new trial." Id. at 851(Alcala, J. concurring).
EX PARTE SIXTA-MOTION 79.2(d) PAGE,6
A""distinction; without a difference could best describe
the disparate results between the two cases. Robbins has now
filed an original application for habeas corpus relief under
Article 11.073,° and it has been filed and set for consideration.
This case will probably be the seminal decision addressing the
statute, and may well be applicable to this applicant's convic-
tdon.
c. Applicant's claims were cognizable under 11.073.
Applicant's claim is cognizable pursuant to Article 11.073,
(a)(1) and (2). There is little doubt that some convictions
result from testimony or other evidence that is based upon dub
ious scientific principles. Article 11.073 gives those convicted
under scientific principles that are no longer valid a proper
vehicle to obtain post conviction relief, and the Legislature
has passed this new law to authorize judicial review of convict
ions based on faulty scientific principles.
On November 27, 2013,. this: Court, entered,;*the following order: The parties shall brief the
the following issues: (1) whether Article 11.073 is a new legal or factual basis under Article
11.07, :4(a); (2) whether an "original application or a previously considered application,"
as set out in Article 11.073(c),(d)(2), means an application filed on or after September 1,
2013, (3) whether " the scientific knowledge or method on which the relevant scientific evid
ence is based," as set out in article 11.073(d), applies to an individual expert's knowledge
and method; (4) whether relevant scientific evidence is "currently available and was not avail
able and was not available at the time of the convicted person's trial because the evidence
was not ascertainable through the exercise of due diligence," as,set out in Article 11.073(b)(1)-
(A), if an experts witness for the State no longer stands by his opinion testimony at trial
andand the jury heard testimony (from the defense that is consistent with the State's expert's
new, post-trial opinion; (5) whether "changed," as set out in Article 11.073(d), applies to
cases in which an expert witness changes his opinion after trial; and (6) whether Applicant
is entitled to relief under Article 11.073 (b). The parties shall brief these issues. The
parties may also brief any other issue they deem relevant to the construction of Article 11.03.
Esc parte Robbins, No. WR-7384-02, 2013 WL 6212218 ,at *1 (Tex.Crim.App. Nov 27, 2013, order)
(not designated for publication).
EX PARTE SIXTA-MOTION 79.2(d) PAGE,?
In Applicant's C-Writ, on page four (4) of the application
where he is required to provide "the reason that the current
claims were not presented and could not have been presented
on [his] previous application." He makes clear the C-Writ is
being brought under the provisions of the new law: Art.11.073.
[Texas Code of Criminal Procedure].
That Applicant explained in his First Ground offered for
for review that he was actually innocent, and that based on
on the newly dicovered evidence which should have been considered
under Art. 11.073 that:
There was a collision between applicant's vehicle
and another vehicle, the passenger in the other vehicle
[was] killed. it was vital to the State's case to
prove the collision was applicant's fault. It was also
vital for 'indigent' applicant, charged with intoxication
manslaughter, to prove the driver of the other vehicle
(Alford) was at fault. He was assured by counsel he'd
have an expert to combat the State's version of the
of the collision. The court and counsel agreed that
applicant needed to opinion of an expert to reconstruct
the collision. The court allowed court-appointed counsel
$750 for that purpose, yet failed to obtain the defense
witness, a witmess crucial to Applicant's defense.
The money was not used for that purpose, and counsel
made no attempt to get additional funds. Applicant
was left without his defense.
After Applicant filed his first pro se application
his counsel was ordered to submit his affidavit explain
ing his actions. He stated in his affidavit that the
money allowed was not enough to hire an expert, and
EX PARTE SIXTA-MOTION 79.2(d) ~ PAGE,8
"that a defense witness would not have testified differ
ently as to the evidence presented by the state." (exhi
bit four [in the C-Writ]) Later/ after Applicant had
filed his first pro se application the defense evidence
was "newly discovered" by Applicant himself/ he being
unable to secure it sooner. He was denied his defense
at trial and left to discover it for himself after trial,
he didn't have funds/ counsel or training to "discover"
the vital evidence any sooner. Finally/ a family member
provided funds in 2007 (exhibit seven [in the C-Writ])
after Applicant had done all he could to secure the
evidence. (exhibit eight[in the C-Writ] the newly dis
covered evidence (the Cope Report) which could have/
and should have/ been presented for applicant at trial
would have included the following "findings and opin
ions" of the expert: the driver of the other vehicle
"failed to yield right of way" and "failed to keep a
proper lookout." The State's investigator "failed to
address the evasive action" taken by Applicant and failed
to include the fact that he [Applicant] "braked" prior
to impact. The weather and road conditions should have
been considered. The report also states, "it is also
my opinion that a jury trial without an accident recon
struction professional is highly unfair and would be
almost impossible for an accused driver to receive a
fair trial/" and that the "State would have provided
funds for accident reconstruction professional."
He also stated: "this expert has worked for the
plaintiff/ defense and procutors [sic]invarious cases, and
has the opinion that a reconstruction is important
as well as confident legal representation in any case
involving accidents." Exhibit ninefin the C-Writ]).
This claim and evidence presented (the Cope Report) was
EX PARTE SIXTA-MOTION 79.2(d) PAGE 9
sufficient to bring Applicant's C-Writ within the pale of the
newly enacted provision of Art. 11.073, Tex.Code Crim. Proc.
d. The trial court failed in its duty to applicant
On 2 May, 2014, .the State filed its proposed findings of
fact, conclusions of law and order. The Trial court adopted
these findings of fact, and conclusions of law on 1 July 2014.
Stating:
The Court has considered the application for writ
of habeas corpus, the State's answer, and official
court records in the above-captioned cause. The court
finds that the applicant has failed to include suffic
ient specific facts establishing that the current
claims could not have been presented previously because
the factual or legal basis for the claim was unavail
able; or that by a preponderance of the evidence,
but for a violation of the United States Constitution,
no rational juror could have found the applicant guilty
beyond a reasonable doubt. Tex.Code Crim.Proc.Ann.
art. 11.07 §4(a)(West 2013).
Importantly, the court failed to determine if the. C-Writ
contained specific facts indicating that:
(A) relevant scientific evidence is currently available
and was not available at the time of the convicted
person's trial because the evidence was not ascertain
able through the exercise of reasonable diligence
by the convicted person before the date of or during
the convicted person's trial; and
(B) the scientific evidence would be admissible under
the Texas Rules of Evidence at a trial held on the
date of the application;....
EX PARTE SIXTA-MOTION 79.2(d) PAGE,10
Applicant's newly discovered "scientific evidence," con
sisted of the true details, analysis and reconstruction of the
motor vehicle collision between the vehicle Applicant was driving
and another vehicle, the collision resulting in the death
of the passenger in the other vehicle. The record supports
that the scientific evidence was unavailable to the Applicant
before the date Applicant filed his first Application.
The new scientific evidence was derived using "Engineering
Dynamics Corporation (EDC) software, with the aid of an on-staff
engineer, which included, HVE, EDCRASH, EDSMAC and SIMON. The
new 3-D, 5.0 version was developed as a sophisticated, 3- dimen
sional user environment for setting up and executing simulations
involving humans and vehicles interacting with their environment.
This scientific evidence determined, among other things, that
the Applicant was traveling between 45-53 mph before braking,
that he braked before the collision, that the police investig
ation was incomplete, that the driver of the other vehicle failed
to yield right of way, and failed to keep a proper lookout.
(See 6.0- findings and opinions included in the C-Writ appendix
"Cope Report".)
C CONCLUSION
The Applicant filed his G-writ, including new scientific
evidence which calls into question the evidence used by the
State in convicting him of the offense of Intoxication manslau
ghter. That the new scientific evidence was not ascertainable
EX PARTE SIXTA-MOTION 79.2(d) PAGE, 11
through the exercise of reasonable diligence on or before
he filed his first writ application. And that the new scient
ific evidence and method on which it was ascertained changed
since the date of Applicant's trial.
D. PRAYER
For all of these reasons, Applicant prays that the court
on its own initative reconsider his C-Writ application.
Respectfully submitted,
Daniel Jame& Sixta'
Applicant-pro se
TDCJ # 1143232
2661 F.M. 2054
Tennessee Colony, Tx 75884
EX PARTE SIXTA-MOTION 79.2(d) PAGE,12
APPENDIX-APPENDIX-APPENDIX-APPENDIX
0
]
EX PARTE SIXTA-MOTION 79.2(b) APPENDIX
]
-7?-'
Case No.
(The Clerk ofthe convicting court will fill this line 'inJ
P IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROMFTNAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: DANIEL JAMES SIXTA
DATE OF BIRTH: SEPT. 9,1960
PLACE OF CONFINEMENT: COFFEELD UNIT, TENNESSEE COLONY, TX
TDCJ-CID NUMBER: 1143232 SID NUMBER:
(1) This application concerns (check all that apply):
S aconviction \J parole
U a sentence D mandatory supervision
LI time credit [] out-of-time appeal or petition for
discretionary review
(2) What district court entered the judgment of the conviction you want relieffrom'
(Include the court number and county.)
,ST
351ai DISTRICT COURT OF HARRIS COUNTY. TX
(3) What was the case numberin the trial court?
923949
(4) What was the name ofthe trial judge?
MARK KENT ELLIS
Effective: January 1, 2014
(5) Were you represented by counsel? If yes, provide the attorney's name:
_______ YES, MICHAEL BARROW
(6) What was the date that the judgment was entered?
DEC. 12, 2002
(7) For what offense were you convicted and what was the sentence?
INTOXICATION MANSLAUGHTER: 20 YRS. TDCJ-BD & 5000 FINE
(8) If you were sentenced on more,than one count of an indictment in the same court at
the same time, what counts were you convicted of and what was the sentence in each
count?
(9) What was the plea you entered? (Check one.)
guilty-open plea guilty-plea bargain
not guilty nolo contenderelno contest
If you entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
D no jury Xj jury for guilt and punishment
jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
YES: PUNISHMENT
(12) Did you appeal from the judgment of conviction?
__ yes [] no
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? FIRST DIST. OF TX., HOUSTON
(B) What was the case number? 01-02-01316-CR
(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
YES, LEPRA KAHN
(D) What was the decision and the date of the decision? AFFIRMED: 12-18-03
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
'__ yes [] no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? 0328-04
(B) What was the decision and the date of the decision? DENIED: 2004
(14) Have you previously filed an application for a writ of habeas corpus underArticle
11.07 of the Texas Code of Criminal Procedure challenging this conviction?
8 yes D no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals' writ number? WR-60-547-03
WR-60-547-09
(B) What was the decision and the date of the decision? DENIED: JULY 26.2006
DISMISSED: MAY 23.2012
(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.
(1) Actual Innocence - Newly Discovered Evidence: Defense evidence re. true
cause of collision denied to innocent Applicant although discoverable by counsel.
Was not until after he was in TDCJ-ID and filed his 1st pro se application that he
was able to get his own expert's report, evidence newly discovered by him but not
heard by his jury. (2) Actual Innocence-Constitutional Error: Deprived of
defense—due process. Also, no help with writ-law. (3) New Law: Art 11.073. re.
scientific evidence, unavailable until 9-1-13 appears to elevate status of new evidence
claim. Also, Padilla v. Kentucky. S. Ct. (3-31-2010) shows collateral consequences of
conviction are inside scope of counsel's representation, not available when 1st
application filed. (Habeas action should be included as "collateral consequence of
conviction".)
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
Dyes __ no
If you answered yes, please provide the name of the court and the case number:
(16) If you are presenting a claim for time credit, have you exhausted youradministrative
remedies by presenting your claim to the time credit resolution system of the Texas
Department of Criminal Justice? (This requirement applies to any final felony
conviction, including state jail felonies)
yes no
If you answered yes, answer the following questions:
(A) What date did you present the claim?
(B) Did you receive a decision and, if yes, what was the date of the decision?
If you answered no, please explain why you have not submitted your claim:
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a briefsummary
of the facts. Ifyourgrounds andbriefsummary ofthefacts have notbeenpresented on
theform application, the Court will notconsider your grounds.
If you have more than four grounds, use pages 14 and 15 of the form, which you may
copy as many times as needed to give you a separate page for each ground, with each
ground numbered in sequence. The recitation of the facts supporting each ground
must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if youwant to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of lawthat were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum.
GROUND ONE:
ACTUAL INNOCENCE
(NEWLY DISCOVERED EVIDENCE)
FACTS SUPPORTING GROUND ONE:
THERE WAS A COLLISION BETWEEN APPLICANT'S VEHICLE AND
ANOTHER VEHICLE. TITF PASSENGER IN THE OTHER VEHICLE KTI LFTV TT
WAS VITAL TO THE STATE'S CASE TO PROVE THE COLLISION WAS
APPLICANT'S FAULT. IT WAS ALSO VITAL FOR "INDIGENT" APPLICANT.
CHARGED WITH INTOXICATION MANSLAUGHTER. TO PROVE THE DRIVER OF
THE OTHER VEHICLE (ALFORD) WAS AT FAULT. HE WAS ASSURED BY
COUNSEL HE'D HAVE AN EXPERT TO COMBAT THE STATE'S VERSION OF THE
COLLISION. THE COURT AND COUNSEL AGREED THAT APPLICANT NEEDED
THE OPINION OF AN EXPERT TO RECONSTRUCT THE COLLISION. THE
COURT ALLOWED COURT-APPOINTED COUNSEL $750 FOR THAT PURPOSE.
YET COUNSEL FAILED TO OBTAIN THE DEFENSE WITNESS. A WITNESS
CRUCIAL TO APPLICANT'S DEFENSE. THE MONEY WAS NOT USED FOR
THAT PURPOSE. AND COUNSEL MADE NO ATTEMPT TO GET ADDITIONAL
FUNDS. APPLICANT WAS LEFTWITHOUT HISDEFENSE.
AFTER APPLICANT FILED HIS FIRST PRO SE APPLICATION HIS COUNSEL
WAS ORDERED TO SUBMIT HIS AFFIDAVIT EXPLAINING HIS ACTIONS. HE
STATED IN HIS AFFIDAVIT THAT THE MONEY ALLOWED WAS NOT ENOUGH
TO ITTRF AN EXPERT. AND "THAT A DEFENSE WITNESS WOULD NOT HAVE
TESTIFIED DIFFERENTLY AS TO THE EVIDENCE PRESENTED BY THE STATE.''
(EXHIBIT FOUR) LATER. AFTER APPLICANT HAD FILED HIS FIRST PRO SE
6
APPLICATION THE DEFENSE EVIDENCE WAS "NEWLY DISCOVERED" BY
APPLICANT HIMSELF. HE BEING UNABLE TO SECURE IT SOONER. HE WAS
DENIED HIS DEFENSE AT TRIAL AND LEFT TO DISCOVER IT FOR HIMSELF
AFTER TRIAL. HE DIDN'T HAVE FUNDS. COUNSEL OR TRAINING TO
"DISCOVER" THE VITAL EVIDENCE ANY SOONER. FINALLY, A FAlun V
MEMBER PROVIDED FUNDS IN 2007 (EXHIBIT SEVEN) AFTER APPLICANT HAD
DONE ALL HE COULD TO SECURE THE EVIDENCE. (EXHIBIT EIGHT) THE
NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) WHICH COULD HAVE.
AND SHOULD HAVE. BEEN PRESENTED FOR APPLICANT AT TRIAL WOULD
HAVE INCLUDED THE FOLLOWING "FINDINGS AND OPINIONS" OF THE
EXPERT: THE DRIVER OF THE OTHER VEHICLE "FAILED TO YIELD RIGHT OF
WAY" AND "FAILED TO KEEP A PROPER LOOKOUT." THE STATE'S
INVESTIGATOR "FAILED TO ADDRESS THE EVASIVE ACTION" TAKEN BY
APPLICANT. AND FAILED TO INCLUDE THE FACT THAT HE "BRAKED" PRIOR
TO IMPACT. THE WEATHER AND ROAD CONDITIONS SHOULD HAVE BEEN
CONSIDERED. THE REPORT ALSO STATES. "IT IS ALSO MY OPINION THAT A
JURY TRIAL WITHOUT AN ACCIDENT RECONSTRUCTION PROFESSIONAL IS
HIGHLY UNFAIR AND WOULD BE ALMOST IMPOSSD3LE FOR AN ACCUSED
DRIVER TO RECEIVE A FAIR TRIAL." AND THAT THE "STATE SHOULD HAVE
PROVIDED FUNDS FOR ACCIDENT RECONSTRUCTION PROFESSIONAL."
HE ALSO STATED: "THIS EXPERT HAS WORKED FOR THE PLAINTIFF.
DEFENSE AND PROCUTORS IN VARIOUS CASES. AND HAS THE OPINION THAT A
RECONSTRUCTION IS IMPORTANT AS WELL AS CONFIDENT LEGAL
REPRESENTATION IN ANY CASE INVOLVING ACCIDENTS." (EXHIBIT NINE)
GROUND TWO:
ACTUAL TNNOCENSE
("INTERTWINED" WITH CONSTITUTIONAL ERROR)
FACTS SUPPORTING GROUND TWO:
THE RECORD. ESPECIALLY THE COURT-ORDERED AFFIDAVIT OF HIS
TRIAL ATTORNEY. CONFIRMS THE FACT THAT APPLICANT WAS DENIED DUE
PROCESS OF LAW. DENIED THE OPINION OF HIS OWN EXPERT. EVEN THE
STATE'S RESPONSE IN ITS "RESPONDENT'S ORIGINAL ANSWER" TO
APPLICANT'S FIRST "11.07" LENDS CREDIBILITY TO APPLICANT'S CLAIM
THAT HIS TRIAL COUNSEL DP) NOT ADEQUATELY INVESTIGATE THE CAUSE
OF THE COLLISION. WHEN THE STATE ASSERTS THAT IN ORDER TO OBTAIN
HABEAS RELIEF THE APPLICANT "MUST SHOW WHAT A MORE IN-DEPTH
INVESTIGATION WOULD HAVE REVEALED." (EXHIBIT SIX) APPLICANT'S
NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) SHOWS WHAT "A MORE
IN-DEPTH INVESTIGATION" WOULD HAVE REVEALED AT TRIAL.
THE OUTCOME OF THE CASE DEPENDED UPON THE ANSWER TO THIS
QUESTION: WHICH DRIVER CAUSED THE COLLISION WHICH RESULTED IN
THE DEATH? IN ORDER TO GET A CONVICTION THE STATE HAD TO PROVE
THAT APPLICANT WAS AT FAULT. TO BE ACQUITTED APPLICANT HAD TO
SHOW OTHERWISE.
THE STATE'S KEY WITNESS. ALFORD. WAS THE DRIVER OF THE
VEHICLE TN WHICH HER SISTER WAS RTDING AS A PASSENGER. HER SISTER
DIED AS A RESULT OF INJURIES RECEIVED TN THE COLLISION. THE RECORD
SHOWS THE FOLLOWING: (1) THE SISTERS WERE IN A RENTED CAR AND IT
8
WAS ALFQRD WHO UNDERTOOK TO DRTVE THE CAR. FOR THE FIRST TIME:
(PAGE 15 OF EXHTBTT TFN): (2) ALFQRD WAS FAMTJJAR WITH THE AREA
WHERE THE COLLISION OCCURRED: (PAGE 16 OF EXHTRTT TEN): (3) TT
WAS ABUSY INTERSECTION ON THAT NIGHT: fPAGE 19 OF EXHTBTT TEN), p)
IT WAS ALFORD'S SISTER WHO WAS WATCHING OUT: "MY SISTER
SCREAMED OUT. "WATCH OUT." AND I LOOKED AT HER ATNTO SAD) "WHAT?"
(PAGE 21, LINE 7OF EXHIBIT TEN): (5) ALFQRD HAD NOT EVEN LOOKED IN THE
DIRECTION OF APPLICANT'S VEHICLE TJNTTL AFTER HER VFHTCLE WAS
STRUCK. (PAGE 21. LTNE 21 OF EXHTBTT TEN) CLEARLY. ALFQRD FAH ED TO
KEEP APROPER LOOKOUT.
HAD APPLICANT BEEN PROVIDED WITH HTS OWN ACCTDFNT
RECONSTRUCTION EXPERT. ESPECIALLY WHEN COUPLED WTTTT THE ABOVE
EVIDENCE, THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DTFFFRFNT
NO REASONABLE OR RATIONAL JUROR WOULD HAVE FOUND APPLICANT
GUILTY BEYOND A REASONABLE DOUBT
GROUND THREE:
- — INEFFECTIVE ASSISTANCE OF COUNSEL
(FAILURE TO ADEQUATELY INVESTIGATE FACTS OF THE CASE)
FACTS SUPPORTING GROUND THREE:
A VERY CLEAR FACT IS THAT THE CAUSE OF THE COLLISION WHICH
RESULTED IN THE DEATH OF THE PASSENGER TN THE OTHER VEHICLE WAS A
VITAL PART OF THE STATE'S CASE. LIKEWISE. THIS ISSUE WAS IMPORTANT
TO APPLICANT'S DEFENSE. YET. APPLICANT'S COUNSEL FAILED TO
ADEQUATELY INVESTIGATE THIS CRUCIAL ASPECT OF THE CASE: HE FAn,FD
TO BE READY TO COMBAT THE STATE'S VERSION OF THE CAUSE OF THE
COLLISION.
THE TRIAL COURT. OBVIOUSLY CONCERNED AFTER APPLICANT HAD
FILED HIS FIRST PRO SE APPLICATION. ORDERED COUNSEL TO Fn.F AN
AFFIDAVIT STATING. AMONG OTHER THINGS. WHETHER HE HAD
"INVESTIGATED POTENTIAL WITNESSES WHO COULD HAVE REBUTTED THE
STATE'S PHYSICAL EVIDENCE." COUNSEL'S AFFIDAVIT REVEALS HOW
LAME HIS EFFORTS WERE. CONSISTING ONLY OF TALKING TO OTHER
ATTORNEYS AND REVIEWING THE "FACTS. FIGURES. AND COMPUTATIONS"
OF HIS OWN WITNESS. AND THEN CONCLUDING. "THAT A DEFENSE WITNESS
COULD NOT HAVE TESTIFIED DIFFERENTLY AS TO THE EVIDENCE
PRESENTED BY THE STATE" (EXHTBTT FOTTtt)
COUNSEL FAILED TO USE THE MONEY (ONLY $750) TO SECURE A
DEFENSE TO THE STATE'S VERSION OF THE CAUSE OF THE COLLISION. AND
FAILED TO ASK THE COURT FOR MORE FUNDS. HE DID NOT SEEK OUT AND
10
INTERVIEW POTENTIAL WITNESSES. FAniNG TO MAKE AN INDEPENDENT
INVESTIGATION OF THE FACTS OF THE CASE. IT WAS A MATTER OF
NEGLIGENCE AND MONEY. NOT AMATTER OF STRATEGY. •
A PROPER INVESTIGATION OF THE FACTS BY COUNSEL WOULD HAVE
RESULTED TN A DEFENSE AT LEAST AKIN TO THE DEFENSE APPLICANT WAS
LEFT TO DISCOVER FOR HIMSELF. (COPE REPORT-EXHTBIT NINE)
APPLICANT WAS HARMED BY COUNSEL'S FAILURE TO ADEQUATELY
INVESTIGATE THE FACTS OF THE CASE. AS SHOWN BY THE GUILTY VERDTCT
AND MAXIMUM TIME ASSESSED BY THE .HJRY: BUT FOR THTS FAILURE OF
DUTY. THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT. AS NO
REASONABLE OR RATIONAL JUROR WOULD HAVE CONVICTED APPLICANT.
FURTHER. APPLICANT'S ATTORNEY FAILED TO ASK FOR ANY KIND OF
HEARING TO EVALUATE THE TESTIMONY OF THE SHEREFF'S DEPARTMENT
EMPLOYEE WHO WAS TO GIVE HIS OPINIONS REGARDING THE COLLISION.
THE TRIAL JUDGE DID NOT REVIEW THE OPINIONS OF THE
WITNESS BEFORE THEY WERE ADMITTED INTO EVIDENCE. THERE WAS
NO TEST OF THE SOUNDNESS. BASIS. OR VALIDITY OF THE SO-TALL"
"SCIENTIFIC" OR "EXPERT" TESTIMONY TO BE PROFFERED BY THE STATE.
11
GROUND FOUR:
. INEFFECTIVE ASSISTANCE OF CONSEL
(FAILURE TO ASSERT AN AVAn.ABT E DEFENSE)
FACTS SUPPORTING GROUND FOUR:
APPLICANT'S COUNSEL FAILED TO ASSERT AN AVAILABLE DEFENSE A
DEFENSE WAS OUT THERE. WATTTNG. DISCOVERABLE BY COUNSEL HAD HE
DECIDED TO OBTAIN TT FOR APPLICANT'S DEFENSE. COUNSEL WAS
ILL-PREPARED FOR CROSS EXAMINATION OR FOR ADVANCING A DEFENSE
THE RECORD SHOWS TT WAS A MATTER OF NEGLIGENCE AND MONEY. NOT A
MATTER OF STRATEGY.
APPLICANT'S COUNSEL HAD BEEN ALLOWED FUNDS TO SECURF. AN
EXPERT TO ANALYZE AND RECONSTRUCT THE MOTOR VEHICLE COT TTSTON
IN ORDER TO COMBAT THE STATE'S VERSION OF THE COLLISION FIRST. HE
WHOLLY FAILED TO USE THE FUNDS FOR THAT PURPOSE. SECONDLY. HE
WHOLLY FAILED TO TRY TO OBTATN MORE FUNDS FOR THAT PURPOSE. THE
NET RESULT OF THESE FAILINGS WAS THAT APPLICANT WAS DENIED HTS
DEFENSE, A DEFENSE WHICH WOULD HAVE SHOWN THAT THE DRIVER OF
THE OTHER VEHICLE WAS AT FAULT. THEREBY CAUSING THE DEATH OF HER
PASSENGER. SUCH EVIDENCE ESSENTIALLY NEGATING THE STATE'S
VERSION OF THE CAUSE OF THE COLLISION. APPLICANT HAS SHOWN THAT
A DEFENSE TO THE STATE'S VERSION OF THE COLLISION WAS AVAH ART jr.,
DISCOVERABLE BY COUNSEL. YET HE FAn.FD, WITHOUT SUFFICIENT CAUSE-
TO PRESENT IT FOR APPLICANT. NO REASONABLE OR RATIONAL HTROR
WOULD HAVE CONVICTED APPLICANT HAD THE DEFENSE BEEN PRF.SF.NT~
12
13
GROUND FIVE:
INEFFECTIVE ASSISTANCE OF COUNSEL
(FAILURE TN PERFORMANCE)
FACTS SUPPORTING GROUND FIVE:
COUNSEL PRESSED APPLICANT TO TESTIFY AT PUNISHMENT PHASE OF
TRIAL. DISREGARDING HIS PHYSICAL AND MENTAL CONDITION. SHORTLY
BEFORE THE PUNISHMENT PHASE OF HIS TRIAL APPLICANT HAD TRUED TO
KILL HIMSELF. FAILING ONLY BECAUSE OF A BED CHECK THAT NIGHT.
OVER 100 STITCHES TAKEN IN HIS ARM. A FEW HOURS LATER HE WAS
TAKEN BACK TO THE COURTROOM FOR THE PUNISHMENT PHASE OF HIS
TRIAL. HE DIDN'T WANT TO GO THROUGH THE PAINFUL PROCESS OF
CHANGING BACK INTO HIS SUIT. BUT THE JUDGE SENT A DEPUTY TO
FORCIBLY MAKE HIM CHANGE FROM THE JAIL SUIT INTOHTS SUIT. YET.
THE BLOOD ON HIS SLEEVES COULD BE SEEN. AS THE BANDAGES WENT FROM
HIS KNUCKLES to TTTS ELBOWS. (HE HAD CUT THE VEINS ON HIS HANDS
BECAUSE HEWANTED TO "BLEED OUT" AS FAST AS POSSIBLE.)
APPLICANT'S PHYSICAL AND MENTAL CAPACITIES WERE CLEARLY
DIMINISHED. YET NEITHER HIS COUNSEL NOR THE COURT MADE ANY
ALLOWANCE FOR HIS CONDITION. HE WAS COMPEIT ED TO CONTINUE.
THE JUDGE ADMONISHED HIM NOT TO MENTION THE SUICIDE
ATTEMPT. HE WAS DENIED A RIGHT TO EXPLAIN HIS CONDITION OR THE
OUALITY OF HIS TESTIMONY TO THE JURY. THE JUDGE APPARENTLY FELT
APPLICANT WAS LUCKY TO BE ALIVE: HE SAID. "MR. SKTA. T'M
14
NOT—WHATEVER HAPPENED LAST NIGHT. OBVIOUSLY. I'M GLAD YOU'RE
ALIVE AND ALL THAT STUFF. BUT THAT'S NOT RELEVANT TO THIS HEARING
SO, YOU'RE NOT TO TALK ABOUT IT." (EXHIBIT ELEVEN) TT WAS NOT
UNTIL A FEW DAYS LATER THAT APPLICANT. BY READING A NEWSPAPER
ACCOUNT. REALIZED WHAT ALL HAD HAPPENED .
THE NET RESULTS OF APPLICANT'S CONDITION. AND THE RESPONSE OF
COUNSEL AND THE COURT TO IT. WAS THAT APPLICANT RECIEVED THE
MAXIMUM TIME OF TWENTY YEARS. _"^
IN COUNSEL'S AFFIDAVIT HE WAS TOLD TO "STATE WHETHER
COUNSEL BELIEVED THAT APPLICANT HAD SUFFICIENT PRESENT ABILITY TO
CONSULT WITH COUNSEL WITH A REASONABLE DEGREE OF RATIONAL
UNDERSTANDING AND HAD A RATIONAL AND FACTUAL UNDERSTANDING OF
THE PROCEEDINGS AGAINST HIM ON THE DATE OF THE TRIAL." COUNSEL
GAVE APPLICANT A GLOWING REPORT. FACING TO MENTION APPLICANT'S
CONDITION. (PAGES " 82" &"83". EXHTBTT FOUR)
FORCING APPLICANT TO TESTIFY IN HIS CONDITION DEPRIVED HTM OF
THAT FAIR TRIAL AND THAT DUE PROCESS OF LAW TO WHICH HE WAS
ENTITLED. NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED
THE MAXIMUM TIME OF 20 YEARS HAD APPLICANT NOT BEEN PHYICAT LY
AND MENTALLY IMPAIRED AT THE PUNISHMENT PHASE OF HIS TRIAL. YET
MADE TO TESTIFY WITHOUT EVEN THE BENEFIT OF MITIGATING EVIDENCE.
15
GROUND SIX:
INEFFECTIVE ASSISTANCE OF COUNSEL
(FAILURE IN PERFORMANCE)
FACTS SUPPORTING GROUND SIX:
COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT THE
PUNISHMENT PHASE OF THE TRIAL.
HE. COULD HAVE SHOWN APPLICANT'S POSITIVE ACCOMPLISHMENTS.
STTCH AS HIS MILITARY EXPERIENCE. HIS EDUCATION. HIS POSITIVE CAREER
ACCOMPLISHMENTS. AND POSITIVE ASPECTS OF APPLICANT'S NATURE AND
CHARACTER. AND ALL OTHER MITIGATING EVIDENCE ALLOWED BY LAW.
THE DENIAL OF THE MITIGATING EVIDENCE RESULTED TN APPLICANT'S
RECEIVING THE MAXIMUM TWENTY YEAR SENTENCE. SOME EXAMPLES OF
THE MITIGATING EVIDENCE WHICH COULD HAVE BEEN SHOWN ARE:
EDUCATION: HIGH SCHOOL: CITY OF HOUSTON ELECTRICAL
APPRENTICE PROGRAM; UNIVERSITY OF HOUSTON STATIONARY
ENGINEERING PROGRAM; ADAMS SCHOOL OF ENGINEERING: STATIONARY
ENGINEERING PROGRAM; MILITARY SERVICE: RANK E4 CORPORAL:
HONORABLE DISCHARGE; MPS Mn.TTARY POLICE; THREE MERITORIOUS
PROMOTIONS; TWO MERITORIOUS MASS; DECORATIONS: MERITORIOUS
UNIT COMMENDATION; OVERSEAS COMMENDATION; GOOD CONDUCT
COMMENDATION: RIFLE MARKSMAN: PISTOL MARKSMAN. MILITARY
PERSONAL HIGHLIGHTS: CHOSEN TN 1980 TO COMPETE IN COMPETITION
CALLED "SUPER SQUAD" CONSIDERED TO BE ONLY FOR THE BEST OF THE
BEST OF THE ENTIRE MARINE CORP. EVENTUALLY FINISHED 4th PLACE.
16
RECEIVING A MERITORIOUS PROMOTION. E4 IN UNDER TWO YEARS. CAREER
PROGRESSION: 1981 -1983: OB GILBERT ELECTRIC - ELECTRICIAN. A
HIGHLY OIIAT TFTFD DEDICATED TECHNICALLY SKILLED ELECTRICIAN. 1983
- 1986: IJJNE INTEREST - LICENSED STATIONARY ENGINEER. SERVICING
WATER CHILLERS, BOILERS. GENERATORS. COOLING TOWERS. WATER
TREATMENT. ENERGY MANAGEMENT SYSTEMS. 1986 - 1990: STXTA GATE
(DBA) OWNER - INSTALLING AND SERVICING ALL TYPES OF ACCESS
CONTROL EQUIPMENT. PROVIDED COMPLETE SCOPE OF INFORMATION
FROM SCHEMATICS. BLUE PRINTS. ON-SITE TRAINING FOR PERSONNEL.
1990 -2002: G.F.A.C.. INC. CEO - FOUNDED RESEARCH AND DEVELOPED A
COMPANY TO CREATE THE STATE OF THE ART ACCESS CONTROL COMPANY
SPECIALIZING IN THE SERVICE AND INSTALLATION OF ALL TYPES OF ACCESS
CONTROL EQUIPMENT. VIDEO CAMERAS. TELEPHONE SYSTEMS. INTERCOMS.
UPS. GATE OPERATORS & SECURITY SYSTEM. KEY PADS. RETTNA SCANNERS.
PRINT SCANNERS. WAS LICENSED DISTRIBUTOR FOR NINE
MANUFACTURING COMPANIES. TEXAS STATE LICENSES: 3rd GRADE
STATIONARY ENGINEERING: BOILER OPERATOR: ELECTRICIAN:
VOLUNTEER HISTORY: 6 YEARS BRIGHT HORIZON DAY CARE PARENT
ADVISORY BOARD: 3 YEARS LITTLE LEAGUE COACH: 3 YEARS LITTLE
LEAGUE TEAM SUPPORTER: 5 YEARS PTO HAIR GROVE ELEMENTARY: 4
YEARS HABITAT FOR HUMANITY: 9 YEARS SAN JACINTO CORVETTE CLUB:
CHURCH: 11 YEARS MEMBER OF THE BREAD OF LTFF CHTTRCTT
NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED SUCH A
SEVERE PUNISHMENT HAD THEY HEARD MITIGATING EVIDENCE.
17
GROUND SEVEN:
INEFFECTIVE ASSISTANCE OF COUNSEL
(FAILURE IN PERFORMANCE)
FACTS SUPPORTING GROUND SEVEN:
COUNSEL FAILED TO PRESERVE ERROR RE. EXHLBITNO. 54 (A TAPE). THE
DRIVER (ALFORD) OF THE OTHER VEHICLE TESTIFIED AS TO HER ACCOUNT
OF THE COLLISION WHICH RESULTED TN THE DEATH OF HER SISTER. ALSO.
AT THE PUNISHMENT PHASE. THE STATE INTRODUCED A TAPE RECORDING
(EXHIBIT NO. 54) OF HER ACCOUNT OF THE COLLISION. APPLICANT ASSERTS
THAT THE TAPE REVEALS THAT THIS WITNESS WAS LYING. HIS CONCERN
AND OBJECTION TO THIS TESTIMONY WAS MADE CLEAR BY HTM TO HTS
TRIAL COUNSEL. APPLICANT WAS CONVINCED THAT THE WITNESS SHOULD
BE CROSS-EXAMINED ON THIS ISSUE—I.E.. THAT ALFORD WAS CHANGING
HER ACCOUNT OF THE COLLISION. HIS COUNSEL WAVED HTM OFF. MAKING
NO EFFORT TO ATTACK THE CREDIBILITY OF THIS WITNESS. THIS WITNESS'S
TESTIMONY. WITH WHAT APPLICANT BELIEVES TO BE ITS CONTRADICTIONS.
WAS LEFT UNSCATHED. AND APPLICANT BELIEVES THE TAPE WOULD HELP
PROVE HISACTUAL INNOCENCE.
APPLICANT'S PERSONAL EFFORTS TO GAIN ACCESS TO THE TAPE WERE
EXERCISES IN FUTILITY. HOWEVER. THE HARRIS COUNTY OFFICIALS HAVE
TREATED APPLICANT'S UNDERSIGNED ATTORNEY WITH COURTESY. BUT
APPARENTLY WOULD NEED A COURT ORDER DIRECTED TO THE HARRIS
COUNTY DISTRICT CLERK TO PRODUCE THE TAPE. BY THIS APPLICATION.
18
APPLICANT NOW HAS AN ACTION BEFORE THE TRIAL COURT.
ACCORDINGLY. HE NOW ASKS THE TRIAL COURT AND THE TEXAS COURT OF
CRIMINAL APPEALS TO ORDER THE PRODUCTION OF THE EXHIBIT (EXHIBIT
NO. 54. A TAPE IN CAUSE NO. 923949) AS A PART OF APPLICANT'S HABEAS
ACTION.
19
GROUND EIGHT:
DENIAL OF DUE PROCESS OF LAW
(FAn.URE OF COUNSEL & COURT TO GIVE NOTICE RE. HABEAS RIGHTS)
FACTS SUPPORTING GROUND EIGHT:
APPLICANT RECEIVED NO NOTICE OR ADVICE OF ANY KIND FROM HIS
COUNSEL OR THE TRIAL COURT REGARDING HIS HABEAS CORPUS RIGHTS.
ALTHOUGH HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES
MARINE CORPS HE'S HAD NO LEGAL TRAINING TN THE LAW. AFTER HIS
CONVICTION AND FIRST ITER EFFORTS TO OVERTURN HIS CONVTCTTON, HE.
WAS n.T^EQUIPPED TO DEAL WITH HABEAS LAW. HAVING RECEIVED NO
ASSISTANCE OF ANY KIND FROM HIS COUNSEL OR THE JUDGE. HE WAS LEFT
TO FEND FOR HTMSELF IN TRYING TO PREPARE HIS PREVIOUS APPLICATIONS.
HE HAD TO COPE WITH VERY LIMITED ACCESS TO HIS UNIT'S LD3RARY. HAD
TO DEAL WITH OUTDATED MATERIALS. AND HAD NO ACCESS TO MODERN
TECHNOLOGY. AFTF.R TTF. HAD WORKED TEN HOURS A DAY. FIVE DAYS A
WEEK. THERE WAS LITTLE TIME OR ENERGY LEFT TO DEAL WITH
WRIT-LAW. HE. WAS SURROUNDED BY "PRETEND LAWYERS". OTHERS WHO
WERE INCARCERATED, OFFERING TO HELP FOR SOME KIND OF "FEE."
APPLICANT'S ATTEMPTS TO DEAL WITH PREPARATION OF HIS
APPLICATIONS HAVE BEEN INSUFFICIENT. ESPECIALLY WITH REGARD TO
HIS SECOND ATTEMPT WHICH WAS DISMISSED FOR NON-COMPLIANCE. THE
MERITS OF HIS CASE NOT HAVING BEEN CONSIDERED.
APPLICANT'S SECOND APPLICATION SPEAKS FOR ITSELF ON THIS
ISSUE. AS FT CLEARLY DEMONSTRATES THAT HE WAS UNABLE EVEN TO
20
NEGOTIATE THE REQUIREMENTS OF THE WRIT FORM. UNABLE TO FULLY
COMPREHEND THE INSTRUCTIONS. YET DOING THE BEST HE COULD WITH
HIS MEMORANDUM OF LAW.
FACT IS. THE ONLY WRIT "TOOLS" AVAILABLE TO HTM AT HIS TTNTT
WERE OUTDATED AND INCOMPLETE. BUT EVEN IF PERFECT. WOULD NOT BE
ADEQUATELY UNDERSTOOD AND IMPLEMENTED BYAPPLICANT.
HAD APPLICANT BEEN GIVEN SOME KIND OF NOTICE OR "HEADS UP" BY
HIS COUNSEL OR TRIAL COURT REGARDING THE NATURE, OR EVEN THE
AVAn.ARnjTY OF THE HABEAS LAW. HE COULD HAVE STARTED MUCH
EARLIER TRYING TO PREPARE FOR THAT JOURNEY. INCLUDING TRYING TO
SECURE FINANCES, AND THE PROBABILITY IS THAT HE WOULD HAVE BEEN
SUCCESSFUL AND WOULD NOT PRESENTLY BE INCARCERATED. IT IS A FACT.
OF WHICH THIS COURT HAS JUDICIAL KNOWLEDGE. THAT AN APPLICANT
HAS A BETTER CHANCE OF SUCCESS. ESPECIALLY WITH HIS FTRST
APPLICATION. WHEN HE'S HAD THE BENEFIT OF ADVICE, OR ASSISTANCE OF
SOME KIND. FROMA TRUE LEGAL COUNSEL.
APPLICANT WAS ILL-EQUIPPED TO NEGOTIATE THIS PROCESS
WITHOUT SOME KIND OF GUIDANCE OR ADVICE FROM HIS COUNSEL OR THE
COURT. (THE COURT'S STATISTICS - EXHTBTT 13-SUPPORT THIS)
21
GROUND NINE:
OUR WRIT OF HABEAS CORPUS LAW IS UNCONSTITUTIONAL
(SECTION 4(aWc). ARTICLE 11.07. TEX. CODE CRIM. PROC )
FACTS SUPPORTING GROUND NINE:
THE TEXAS LAW REGARDING SUBSEQUENT WRTT APPLICATIONS WAS
TOO STRINGENT. DIFFICULT. AND COMPLEX FOR APPLICANT TO
SUCCESSFULLY NEGOTIATE WITHOUT TRUE LEGAL COUNSEL. APPLICANT
PERSONALLY WANTED THE BENEFITS OF THTS LAW. AND HE STILL DOES
HE HAS BEENDENIED HIS RIGHT TO SEEK REDRESS VTA "THE GREAT WRTT OF
LIBERTY." (BLACKSTONFl. SECTION 4 (a)-(c). THOUGH WELL-TNTENDET^ TS
PROHIBITIVE.
APPLICANT KNOWS THAT MOST APPLICANTS "FLUNK" THIS LAW TTF
KNOWS THAT ARTICLE 11.07 HAS MANY PARTS. ALL SPEAKING LAWYER'S
LANGUAGE. HE PERSONALLY KHVQWS THAT THE INSTITUTIONAL DTVTSTON
OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE IS ILL-EQUIPPED WTTH
THE "TOOLS" NEEDED BY "INMATES" TO FULLY COMPREHEND. AND THEN
IMPLEMENT THIS TAW. THE "SUBSEQUENT-APPLICATION" RULE (THE
"ABUSE OF WRIT DOCTRINE") IS THE ESPECIALLY EGREGIOUS PART OF
TEXAS WRIT LAW. FURTHER. APPLICANT PERSONATLY KHVQWS THAT TT TS
MORE UNLIKELY THAN LIKELY THAT AN INCARCERATED PERSON WILL BE
SUCCESSFUL IN OBTAINING HIS LIBERTY BY WAY OF THIS LAW. APPLICANT
PERSONALLY FEELS. BECAUSE THE LAW ITSELF IMPELS HIM TO FEEL. THAT
HE IS IN FACT ENTITI.ED TO THE BENEFITS OF THTS LAW. AND THAT THIS IS
NOT MERELY WISHFUL THINKING. THE LAW. ITSELF. HAS CREATED THTS
22
EXPECTATION OF APPLICANT'S ENTITLEMENT TO THIS LAW.
APPLICANT IS ABLE TO SEE THAT THIS LAW REQUIRES ENUMERATED
PEOPLE TO DO ENUMERATED THINGS IN A CERTAIN WAY. NOT JUST LEAVING
THE PLAYERS TO USE THEIR PERSONAL JUDGMENTS. TN Fn.TNG HIS PRO SE
APPLICATIONS HE NEVER REALLY TTNUFRSTOOD WHAT ALL HE WAS
SUPPOSED TO DO. HE DIDN'T EVEN GET HIS FACTS IN THE
CORRECT PLACE IN HIS SECOND PRO SE APPLICATION: IT WAS DISMISSED
FOR "NON-COMPLIANCE." THIS PART OF OUR HABEAS LAW IS BEYOND
REACH OF THE AVERAGE "INMATE" WHO HAS NO TRUE LEGAL COUNSEL.
AND IS ALMOST BEYOND THE REACH OF TRUE LEGAL COUNSEL.
WHEN APPLICANT FINALLY FOUND OUT ABOUT THE LEGAL AVENUE HE
WOULD ATTEMPT TO USE (THE WRIT OF HABEAS CORPUS) IT PROVED TO BE
BEYOND HIS PERSONAL CAPACITY TO PROPERLY UTILIZE. HE IS INNOCENT
OF THE OFFENSE CHARGED. AND HAS MAINTAINED HIS INNOCENCE FROM
THE BEGINNING OF HIS CASE. HIS FREEDOM IS AT STAKE. HE HAS BEEN
HARMED BECAUSE THE PROCESS PROVIDED TO HTM IS SO COMPLEX.^ SO
DIFFICULT. FOR THE AVERAGE "INMATE" TO UNDERSTAND AND IMPLEMENT.
IT PROVED TO BE BEYOND HIS PERSONAL CAPABn TTTJES. PUTTING HIM IN
THE VAST MAJORITY OF PRO SE WRIT-APPLICANTS. (THE COURT'S
STATISTICS - EXHTBTT 13-SUPPORT THTS.)
ACCORDINGLY. HIS PREVIOUS APPLICATIONS SHOULD NOT BLOCK HIS
WAY INTO CONSIDERATION OF HIS PRESENT APPLICATION. HE SHOULD BE
ALLOWED TO "SIDE-STEP" THE "ABUSE OF WRIT DOCTRINE."
23
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION
This application must be verified or it will be dismissed for non-compliance. For
verification purposes, an applicant is a person filing the appUcation on his or her own behalf. A
petitioner is a person filing the application on behalfof an applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the Oath Before a Notary Public before a
notary public or the Inmate'sDeclaration without a notary public. If the inmate is represented by
a licensed attorney, the attorney may sign the Oath Before a Notary Public as petitionerand then
complete Petitioner's Information. A non-inmate applicant must sign the Oath Before a Notary
Public before a notary public unless he is represented by a licensed attorney, in which case the
attorney may sign the verification as petitioner.
A non-inmate non-attorney petitioner must sign the Oath Before a Notary Public
before a notary public and must also complete Petitioner's Information. An inmate petitioner
must sign either the Oath Before a Notary Public before a notary public or the Alnmate's
Declaration without a notary public and must also complete the appropriate Petitioner's
Information.
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF ANDERSON
DANIEL JAMES SIXTA, being duly sworn, under oath says: I am the^plicaj])/
petitioner (circle one) in this action and know the contents of the above appUcation tor a wnt of
habeas corpus and, according to my belief, the fact£__tated in the application are true.
SUBSCRIBED AND SWORN TO BEFORE ME THIS oil DAY OF MfofPJO, 2014.
« '•« « e o... e « «, 9 . . . t lature ofNotary Public
Shauna L.Vesta! •
0
Notary Public. State of Texas '
My Commission Expires *
a «. » „—' 02 012017 *
••••••••• -........ o.....;
—- Notary Without Bortd
24
PETITIONER'S INFORMATION
Petitioner's printed name: ARDON MOORE
State bar number, if appUcable: 14390000
Address: P.O. Box 133183
Tyler. TX 75713-1383
Telephone: 903-593-1116
Fax: 903-590-1752
INMATE'S DECLARATION
_, am the applicant / petitioner (circle one) and
being presently incarcerated in , declare under penalty of
perjurythat, according to my belief, the facts statedin the above appUcation are true and correct.
Signed on 2014.
Signature of Applicant / Petitioner (circle one)
25
PETITIONER'S INFORMATION
Petitioner's printed name:
Address:
Telephone:
Fax:
Signed on , 2014.
Signature of Petitioner
26
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WRIT NO: WR-60-547-03 (1st application)
WRIT NO: WR-60-547-09 (2nd application)
NEW WRTT NO:
EX PARTE
CAUSE NO. 923949-B
DANIEL JAMES SIXTA
HARRIS COUNTY, TEXAS
TDCJ-H) 1143232
MEMORANDUM OF LAW
IN SUPPORT OF APPLICATION
FOR WRIT OF HABEAS CORPUS
Ardon Moore
Attorney and Counselor at Law
P.O. Box 133183
Tyler, TX 75713
903-593-1116
Attorney for Applicant
CERTIFICATE OF COMPLIANCE
In compliance with TRAP 73.1(f) this is to certify that
according to the word count of the computer program used to
prepare this document the number of words in this document is
5528, not including appendices, exhibits, cover page, table of
contents, table of authorities, and certificate of compliance.
Ardon Moffre
Petitioner-Attorney4or Applicant,
Daniel James Sixta
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WRIT NO: WR-60-547-03 (1st application)
WRIT NO: WR-60-547-09 (2nd application)
NEW WRIT NO:
EX PARTE
CAUSE NO. 923949-B
DANIEL JAMES SIXTA
HARRIS COUNTY, TEXAS
TDCJ-H) 1143232
INDEX
List of Authorities Page i-iv
Exhibits Page v-vi
Memo of Law:
Subjects Page l
Custody Page 1
Summary OfFactsPertaining To Offense AndTrial Page 1
Why Applicant ShouldBeAllowed "Another Bite Out OfThe Apple" Page 2
GROUND ONE: ACTUAL INNOCENCE-NEWLY DISCOVERED
EVIDENCE Page 3
(The NDE: The True Cause of the Motor Vehicle CoUision)
INDEX (CON'T)
GROUND TWO: ACTUAL INNOCENCE Page 6
("Intertwined" With Constitutional Error)
GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 7
(Failure To Adequately Investigate Facts Of The Case)
GROUND FOUR: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9
(Failure To Assert An Available Defense)
GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9
(Failure In Performance)
GROUND SIX: INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure in Performance) Page 10
GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure in Performance) Page 11
GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW Page 13
(Denied Due Process By Failure Of Counsel And Court To Give Him
Any Notice Or Advice Regarding His Habeas Rights)
GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS
UNCONSTITUTIONAL Page 16
(Sec. 4(a)-(c), Art. 11.07 Tex. Code Crim. Proc.)
ENCAPSULATION OFAPPLICANT'S CASE Page 19
CERTIFICATE OF COMPLIANCE Page 21
I
D
I
1
1
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WRIT NO: WR-60-547-03 (1st application)
WRIT NO: WR-60-547-09 (2nd application)
NEW WRIT NO:
EX PARTE
CAUSE NO. 923949-B
DANffiL JAMES STXTA
HARRIS COUNTY, TEXAS
TDCJ-H) 1143232
LIST OF AUTHORITIES
Cases
Bounds v. Smith, 430 U.S. 817,821 (1977) Pg. 15
Burdine v. Johnson, 266 F. 3rd (5* Cir. 2001) Pg. 15
Butler v. State, 716 S.W.2d 48, 54(Tex. Crim. App. 1986) Pg. 8
Coble v. State, 330 S.W.3d 253, (Tex. Crim. App. 2010) Pg. 9
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,113 S. Crt. 2786 Pg. 8, 9
Exparte Biggins, 635 S.W.2d 743 (Tex. Crim. App. 1982) Pg. 15
ExparteBrown, 158 S.W.3d 449 (Tex. Crim. App. 2005) Pg. 16
ExparteDuffy, 607 S.W.2d 507,514-15 (Tex. Crim. App. 1980) Pg. 7,13
ExparteElizondo, 947 S.W.2d 202,205 (Tex. Crim. App. 1996) Pg. 3, 6
Ex parte Franklin, 72 S.W. 3rd 678 (Tex. Crim. App. 2002) Pg. 5
i
Cases (Con'f)
Exparte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) Pg. 15
Exparte Hernandez, 988 S.W.2d 770(Tex. Crim. App. 1999) Pg. 13
ExparteHenderson, 384 S.W.3d 833, (Tex. Crim. App. 2012) Pg. 5
Exparte Kerr, 64 S.W.3d 414,418 (Tex. Crim. App. 2002) Pg. 17
ExparteLemke, 13 S.W. 3rd 791 (Tex. Crim. App. 2000) Pg. 3
Exparte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993) Pg. 12
ExparteMiles, (Tex. Crim. App. 2012) Pg. 4
ExparteMiner, 394 S.W.3d 502, 505-06(Tex. Crim. App. 2013) Pgs. 2, 7
ExparteMontgomery , 894 S.W. 324, (Tx. Crim. App. 1995) Pg. 17
ExparteNailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) Pg. 12
ExparteParra, No.AP-76-871 (Tex. Crim. App. Sept 18,2013) Pg. 7
Exparte Sanders, 588S.W. 2d 383 (Tex. Crim. App. 1979.... Pg. 15
ExparteScott, 190 S.W.3d 672 (Tex. Crim. App. 2006) Pg. 13
Exparte Sledge, 391 S.W.3d 104 (Tex. Crim. App. 2013) Pg. 6
Exparte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) Pg. 12
Exparte Wilborn, 785S.W. 2d 391,393 (Tex. Crim. App. 1999) Pg. 8
Hernandez v. State, 726 S.W.2d 53,57 (Tex. Crim. App. 1986) Pgs. 7,12
Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993) Pgs. 2, 3, 6
Jackson v. StateS77 S.W. 2d 768, 77-771 (Tex. Crim. App. 1994) Pg. 12
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.) Pg. 9
Kentucky Department OfCorrections v. Dumschat, 452 U.S. 458,101 S. Ct 2460 Pg. 17
Kentucky Department OfCorrections v. Thompson, 490 U.S. at 462 Pg. 17
Mempa v. Rhay, 389U.S. 128 (1967) Pg. 13
ii
Cases (Con'tt
Miles v. State, 359 S.W.3d 647 (Tex. Crim.App. 2012) Pg. 7
Miller v. Dreke 420 F. 3d356 (5th Cir. 2005) Pg. n
Murray v. Carrier, 477 U.S. 478, 496 (1986) Pg. 12
Padilla v. Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) Pgs. 3,14
Schlup v. Delo, 513 U.S. 298,115 S. Ct. 851 (1995) Pgs. 2, 6
Sparkman v. State, 580 S.W.2d 358,360 (Tex. Crim. App. 1979) Pg. 11
Strickland v. Washington, 466 U.S. 668, (1984) Pgs. 7,12,13,14
Thaddeus-Xv. Blatter, 15 F.3"1378,391 (6th Cir. 1999) Pg. 15
United States v. Cronic, 466 U.S. 648 (1984) Pg. 7
Statutes
Article 11.07, Tex. Code Crim. Proc pgs. 12,13,17,19
Article 11.07, Sec. I Tex. Code Crim. Proc Pg. 17
Article 11.07, Sec. 4... Tex. Code Crim. Proc Pgs. 2, 6
Article 11.07, Sec. 4(a) Tex. Code Crim. Proc Pg. 17
Article 11.07, Sec. 4(a>(c) Tex. Code Crim. Proc Pg. 16 19
Article 11.07, Sec. 4(a)(1) Tex. Code Crim. Proc Pgs. 2,3,6,7
Article11.07, Sec. 4(a)(2) Tex. Code Crim. Proc Pgs. 2, 7
Article 11.073, Tex. Code Crim. Proc Pgs. 3, 5
Art. 37.02, Sec. 3, Tex. Code Crim. Proc Pg. H
Rule 702, 26 TEX. R. Evid Pgs. 8, 9
28 U.S.C. Sec. 2254 pg. 13
Tex. CONST., Article I, Sec. 10 pgs. 5, 7,17
Tex. CONST., ArticleI, Sec 19 pg. 7
111
Statutes fCon't)
Tex. Rules App. Proc. 25.2 Pg. 14
Tex. Rules App. Proc. 48.4 Pg-14
U.S. CONST., amends. V VI, XIV Pgs. 13,15
U.S. CONST., amends. V, XIV Pg. 17
U.S. CONST., amend VI Pg. 7,12
U.S. CONST., amends. VI, XIV Pg. 5
U.S. CONST., amends XTV Pg. 7
IV
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WRIT NO: WR-60-547-03 (1st application)
WRIT NO: WR-60-547-09 (2nd application)
NEW WRIT NO:
EXPARTE
CAUSE NO. 923949-B
DANIEL JAMES SIXTA
HARRIS COUNTY, TEXAS
TDCJ-ID 1143232
EXHIBITS ATTACHED
The Indictment EXHIBIT ONE
Clerk's Index (Judgment/Sentence 12-13-02) EXHIBIT TWO
Notice ofDenial ofFirst Application EXHIBIT THREE
Notice ofDismissal ofSecond Application EXHIBIT THREE
Counsel's Court Ordered Affidavit EXHIBIT FOUR
State's Opening Statement EXHIBIT FIVE
State's Answer toFirst Application EXHIBIT SIX
Affidavit ofApplicant's Sister EXHIBIT SEVEN
Affidavit ofApplicant, Daniel Sixta EXHIBIT EIGHT
The Cope Report EXHIBIT NINE
Testimony ofAlford Regarding the Collision EXHIBIT TEN
Judge's Comments re. Applicant's Suicide Attempt EXHIBIT ELEVEN
Record Showing Failure toPresent Mitigating Evidence EXHIBIT TWELVE
The Court's Habeas Statistics EXHTBTT THIRTEEN
v
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WRTT NO: WR-60-547-03 (1st application)
WRIT NO: WR-60-547-09 (2nd application)
NEW WRIT NO:
EX PARTE
CAUSE NO. 923949-B
DANIEL JAMES SLXTA
HARRIS COUNTY, TEXAS
TDCJ-H) 1143232
MEMORANDUM OF LAW
IN SUPPORT OF APPLICATION FOR WRTT OF HABEAS CORPUS
Custody
Applicant is illegally restrained of his liberty in the Texas Department Of Criminal
Justice, Institutional Division, presently incarcerated at Coffield Unit, Tennessee Colony,
Texas, by virtue of a judgment of the351st Judicial District Court of Harris County, Texas.
Summary OfFacts Pertaining To Offense And Trial
On an indictment returned in 2002 (Intoxication Manslaughter in Cause No.
923949,351st Judicial District Court of Harris County, Texas) Applicant was jury tried and
found guilty. Sentence: 20 yrs., $5000 fine. His appeal in 2003 and his PDR in 2004 failed
as did his federal activity. His first Application (pro se), was denied in 2006 withoutwritten
order. His second application, filed in 2011, again pro se, was dismissed without written
order in 2012 for non-compliance. (Facts not put on prescribed form.)
Why Applicant Should BeAllowed "Another Bite Out OfThe Apple"
(1)
This, Applicant's subsequent application (his first having been denied without
written order and his second dismissed for noncompliance) contains sufficient specific
facts establishing that the current claims and issues have not been and could not have
been presented previously in an original application or in a previously considered
application filed under this article because the factual or legal basis for the claim was
unavailable on the date the applicant filed his previous application. (Article 11.07,
Section 4(a)(1) Tex. Code Crim. Proc.) Further, by preponderance of the evidence, but
for a violation of the United States Constitution no rational juror could have found
Applicant guilty beyond a reasonable doubt. (Art. 11.07, Sec. 4(a)(2) Tex. Code Crim.
Proc.) The remedies provided by Sec. 4 are not mutually exclusive. In Ex parte Milner,
394 S.W. 3rd 502 (Tex. Crim. App. 2013) this court held:
"This Court has recognized that even if an application does not
meet the requirements of Section 4(a)(1), a subsequent application
for writ of habeas corpus may overcome the procedural bar of art.
11.07, Sec 4, if an applicant can show a constitutional violation that
fulfills the requirements of Sec. 4 (a)(2)."
Applicant's actual innocence is based on his claim of newly discovered evidence.
Herrera v. Collins, 506 U.S. 390 (1993). His actual innocence is also a procedural claim tied
to a showing of constitutional error at trial. Schlup v. Delo, 513 U.S. 298, 314 (1995). He
was denied due process of law.
(2)
Further, Applicant shows some new law which was unavailable to him when he filed
his first Application. Article 11.073, Tex. Code Crim. Proc, pertaining to "relevant
scientific evidence" was not effective until September 1, 2013. This law appears to elevate
the status of scientific evidence in the habeas law, as it was enacted to specify that evidence
used to contradict evidence presented at trial is a claim or issue that can affect court
consideration of an application for a writ of habeas corpus.
Also, Tex. Code Crim. Proc. Art. 11.07, Sec. 4 (a) (1) is satisfied in that Padilla v.
Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) was unavailable to Applicant on the
date he filed his previous application. Padilla shows that the collateral consequences of a
conviction are inside the scope of the representation by trial counsel, and Applicant submits
that the substance of that case involves more than a trial counsel's failure to give the
accused a heads-up regarding deportation, and, that Applicant is entitled to the benefits of
Padilla without regard to whether the case is retroactive (This will be more fully
developed in this memorandum of law.)
GROUND ONE: ACTUAL INNOCENCE—NEWLY DISCOVERED
EVIDENCE
(The NDE: The True Cause Of The MotorVehicle Collision)
Applicant is actually innocent of the crime of which he was convicted. A claim of
actual innocence is cognizable in a post-conviction habeas corpus proceeding. Ex parte
Elizondo 947 S.W.2d 202 (Tex. Crim. App. 1996); Exparte Lemke, 13 S.W. 3rd 791 (Tex.
Crim. App. 2000).
Applicant's claim of actual innocence is based upon newly discovered evidence that
was neither introduced at trial nor available to Applicant to introduce at trial. Herrera v.
Collins, 506 U.S. 390, 113 S. Ct 853 (1993). The newly discovered evidence (evidence
discovered by Applicant) consisted of the true details, analysis, and reconstruction of the
motor vehicle collision between the vehicle Applicant was driving and another vehicle, the
collision resulting in the death of the passenger in the other vehicle.
The record supports that the factual basis for this claim was unavailable to
Applicant and not ascertainable by him through the exercise of reasonable diligence on or
before the date Applicant filed his first Application. Ex parte Miles, (Tex. Crim. App.
2012).
Applicant urges the courts to review the credentials of Applicant's expert, as well as
the report itself, each attached as exhibits, with particular attention to the fifth, sixth and
seventh pages of the report: They show, among other things, that Applicant was traveling
between 45 - 53 mph before braking, that he definitely braked before the coUision, that the
police investigation was incomplete, that the driver of the other vehicle failed to yield right
ofway, and failed to keep a proper lookout. The report makes clear that, in theopinion of
the expert, the jury trial in this case "without an Accident Reconstruction professional is
highly unfair and would be almost impossible for any accused driver to receive a fair trial."
No reasonable juror would have found Applicant guilty as charged if his counsel
had secured a proper collision expert for his defense, had Applicant been able to present to
the jury the testimony of the expert his family member was finally able to obtain for him.
This begs the question: Does our law defeat the accused who is indigent, who is
financially unable to secure a proper defense, while it rewards the defendant who is
financially better off?
Applicant submits that the evidence here presented is clear and convincing that no
reasonable juror would have convicted him of Intoxication Manslaughter in light of this
newly discovered evidence. Ex parte Henderson, 384 S.W.3d 833, (Tex. Crim. App. 2012)
Applicant's right to a fair trial, as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution,
was violated because his conviction was based only on the State's version of the collision,
Applicant having been deprived of his own expert evidence. His conviction was thereby
assured.
Senate Bill 344 out of the 83rd Texas Legislature (now Art. 11.073, Tex. Code Crim.
Proc.) speaks to the right of courts to grant relief via writ-applications if the relevant
scientific evidence is currently available but was not available at the time of the conviction
because the evidence was not ascertainable through reasonable diligence at the time of
trial.
In Applicant's case scientific evidence needed to combat the State's version of the
cause of the collision was out there, discoverable by Applicant's counsel had he made the
effort to obtain it.
Applicant was denied his vital defensive evidence, thus denied his constitutional
right to a fair trial and to due process of law. No reasonable juror would have convicted
Applicant had they heard his newly discovered evidence.
Applicant has shown, through clear and convincing evidence, that the newly
discovered and newly available evidence, especially when superimposed over the failure of
his counsel to provide him with the defense needed, creates a doubt in the efficacy of the
jury's verdict and would probably change the verdict on retrial See Ex parte Franklin, 72
S.W. 3rd 678 (Tex. Crim. App. 2002)
In Exparte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) the Court said its job
was "to decide whether the newly discovered evidence would have convinced the jury of
applicant's innocence" Applicant submits that his newly discovered evidence would have
accomplished this.
In ExparteSledge, 391 S.W.3d 104 (Tex. Crim. App. 2013) a good review was given
of the/ways to try to escape the "abuse of writ doctrine." However, Art. 11.07, Sec. 4 and
case law should be expanded to hold as follows: "New Law; New Facts; Innocence; Having
Been Denied Your Defense; Having Been Denied Your Mitigating Evidence; And Not Being
Provided With Any True Legal Assistance Regarding Your Personal Efforts To File An
Acceptable First Application."
To admonish an attorney at law that if he or she doesn't get it right the first time, he
or she is essentially finished, is one thing—but to tell that to the typical untrained "inmate"
is a travesty, besmirching the opinion of the great Sir William Blackstone who referred to
the habeas process as "•The Great Writ OfLiberty.n
GROUND TWO: ACTUAL INNOCENSE
("Intertwined" With Constitutional Error)
A claim of actual innocence is cognizable in a post-conviction habeas corpus
proceeding. Exparte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). Applicant is
not confined to only one vehiclewhich can be connected to his cognizable ground of actual
innocence, as addressed by Applicant, supra. The two types of actual innocence claims that
may be raised in a collateral attack on a conviction are shown in: Schlup v. Delo, 513 U.S.
298,115 S. Ct. 851 (1995) and Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993).
As stated in the first ground, the Court has recognized that even if an application
does not meet the requirements of Sec. 4 (a) (1), a subsequent application may overcome
the procedural bar of Art. 11.07, Sec. 4 if the applicant can show a constitutional violation
that fulfills the requirements of Sec. 4 (a) (2). The constitutional violation claim must be
accompanied by a prima facie claim of actual innocence Ex parte Milner, 394 S.W.3d 502,
505-06 (Tex. Crim. App. 2013) These two species of actual innocence claims, as addressed
in Miles v. State, 359 S.W.3d 647 (Tex. Crim. App. 2012) are not held to be mutually
exclusive, and are not required to be urged one at a time in separate applications.
Applicant was denied his vital defense, thus denied his constitutional right to due
process of law.
GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure To Adequately Investigate Facts Of The Case)
An essential element of a fair trial is effective assistance of counsel. United States
v. Cronic, 466 U.S. 648 (1984). The right of an accused to the effective assistance of counsel
comes from four sources: The Sixth Amendment, the Due Process Clause of the
Fourteenth Amendment, the "right to be heard" provision of Art. I, Sec. 10 of the Texas
Constitution, and the Due Course of Law provision of Art. I, Sec. 19 of the Texas
Constitution. Exparte Duffy, 607 S.W.2d 507,514-15 (Tex. Crim. App. 1980).
Always there is the Supreme Court's 2-part test for determining whether counsel is
ineffective: (1) Counsel committed an error or omission not justifiable as reasonable trial
strategy; and (2) the error prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) As required by
Strickland Applicant has shown by a preponderance ofthe evidence thattheharm resulting
from counsel's deficiency undermines the confidence in the trial's outcome ExparteParra,
No. AP-76,871 (Tex. Crim. App. Sept 18,2013)
The charge of Intoxication Manslaughter involved a motor vehicle collision between
7
the vehicle Applicant was driving and a vehicle in which the passenger was killed. The
manner, the method, the details of the collision were at the very core of the State's case.
This cannot be disputed by the State, as the record clearly shows that both the court and
counsel deemed it essential to have the testimony of an expert for Applicant's defense.
The affidavit required of the trial counsel reveals the truth of Applicant's claims.
The attorney did nothing of any significance to investigate the facts regarding the true
nature of the collision. He did hot seek out and interview witnesses. The fact of the
absence of defense witnesses at Applicant's trial should help provethis cognizable ground.
It is the responsibility of defense counsel to promptly investigate the circumstances
of the case He should make an independent investigation of the facts of the case, not
relying simple on his client's version of the facts. Butler v. State, 716 S.W.2d 48, 54 (Tex.
Crim. App. 1986). The duty includes the responsibility to seekout and interview potential
witnesses. Exparte Wilborn, 785 S.W. 2d 391,393 (Tex. Crim. App. 1999)
The purpose of this constitutional mandate to investigate the facts of the case is to
determine whether a defense is available to the accused. Butler v. State, 716 S.W.2d 48, 54,
(Tex. Crim. App. 1986)
Further, Applicant's attorney failed to use Rule 702,26 TEX. R. Evid.: He made no
request for Daubert/Kelly hearing. Rule 702 reads:
"If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form
of an opinion or otherwise."
See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Crt. 2786 and
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.). As shown by Coble v. State, 330 S.W.3d
253, (Tex. Crim. App. 2010) the trial judges must act as a true "gatekeeper" when
addressing the reliability and relevance of expert testimony, and this "gatekeeping" role
under Daubert applies the same reliability standard to all "scientific," "technical," or
"other specialized" matters within the scope of Rule 702.
The testimony of the Sheriffs Department employee is lame when compared to the
credentials and the report of the true expert finally retained for Applicant, thanks to his
family member.
GROUND FOUR
INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure To Assert An Available Defense)
Applicant's counsel failed to assert an available defense. Counsel failed to be ready
to combat the State's case against Applicant. He failed to use the funds provided by the
court for a defense expert's reconstruction of the collision, and to have the witness to testify
on behalf of Applicant. He failed to move for additional funds.
To couch the problem another way: A defense was out there, waiting, available
Applicant's counsel simply failed to assert it for Applicant. Consequently, Applicant was
convicted and sentenced to twenty years with a $5,000 fine. No reasonable or rational juror
would have convicted him had the defense been presented.
GROUND FIVE
INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure In Performance)
Counsel pressed Applicant to testify at the punishment phase of the trial, disregarding
his physical and mental condition. Applicant's attempt to kill himself the night before his
punishment hearing is clearly established by the record. Not only was it unconstitutional,
it was unconscionable to press him to trial at that time The trial judge expressed some
understanding, but hardly any sympathy, for Applicant's traumatic situation, stating, "Mr.
Sixta, I'm not—what ever happened last night, obviously, I'm glad you're alive and all that
stuff..." The judge then admonished Applicant to keep his mouth shut about the incident.
(See EXHIBIT ELEVEN)
Applicant's counsel did nothing, save going along with whatever the judge wanted.
The record is clear that no one in the courtroom sought to protect Applicant's
constitutional rights regarding the matter.
Injured and traumatized, Applicant was pressed on to testify, the net result being
his severe sentence, his being denied the right to a fair trial. He did not receive that
constitutionally protected quality of punishment hearing to which he was entitled, and this
habeas process, albeit already previously attempted by Applicant, is the remedy by which
he must now seek his justice.
GROUND SIX
INEFFECTIVE ASSISTANCE OF COUNSEL
(Failure In Performance)
Counselfailed to present mitigating evidence at thepunishmentphase ofthe trial The
State hammered Applicant at the punishment phase of his trial. Oddly, and
unconstitutionally, Applicant's counsel asked only nine questions which might, possibly,
relate to mitigating evidence. Either counsel didn't know of this duty, or he knew about it
and ignored it, or he felt that Applicant was in no condition, in view of his attempted
suicide, to undergo a proper showing of mitigating evidence. In either case, the net result
was the same—the denial of Applicant's right to due process of law—his right to a fair
punishment hearing.
There was no anecdotal evidence regarding Applicant's good qualities, no showing
of anything in his life which might have caused his behavior, no attempt to humanize him,
no showing of his accomplishments or his good qualities. His long list of accomplishments
10
and good deeds were ignored by his counsel. (See EXHIBIT TWELVE)
Art. 37.02, Sec 3, Tex. Code Crim. Proc, is not that difficult to understand. That
counsels failure in this regard constituted ineffective assistance of counsel is shown by
Miller v. Dreke 420 F. 3d356 (5th Cir. 2005)
During the punishment phase the jury is concerned "with evaluating a defendant's
background and character independent of the commission of the crime on trial."
Sparkman v. State, 580 S.W.2d 358, 360 (Tex. Crim. App. 1979). The Court has observed
that, in assessing what is relevant to sentencing, the important question is "what is helpful
to the jury in determining the appropriate sentence for a particular defendant in a
particular case."
This fact should be considered beyond dispute: HAD APPLICANT'S COUNSEL
PRESENTED AVAILABLE MITIGATING EVIDENCE TO THE JURY APPLICANT'S
SENTENCE WOULD NOT HAVE BEEN AS SEVERE.
GROUND SEVEN
INEFFECTIVE ASSISTANCE OF COUSEL
(Failure in Performance)
Counsel failed to preserve error re. Exhibit No. 54 (a tape). While it is true the State
introduced Exhibit No. 54 (a tape) into evidence, Applicant submits it shows this State's
witness (Afford) was lying. Applicant called this to the attention of his trial counsel, who
shrugged the matter off, telling Applicant the matter would be addressed in another way,
such as an appeal. It never happened.
Consequently, Applicant was left alone to challenge this issue, failing in his pro se
attempt to gain possession of the tape from the authorities in the county of his conviction.
All Applicants' efforts to gain possession of the tape from the Harris County
officials failed. He was engaged in an arduous task, one which should have been handled
11
by his counsel at the trial and appellate levels.
By this writ-application, Applicant now has the matter pending before the district
court of his conviction, and, before the Texas Court Of Criminal Appeals. The Harris
County District Clerk, or others who have possession of this exhibit, should be ordered to
produce it for the use and benefit of Applicant and inspection by the courts.
Further authorities to support claim of Ineffective Assistance OfCounsel
The effectiveness of counsel's assistance is graded by the entire body of his
performance. Ex parte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993)
The representation of his counsel fell below any objective standard of
reasonableness Strickland v. Washington, 466 U.S. 668 (1984); Jackson v. State 877 S.W.2d
768, 77-771 (Tex. Crim. App. 1994)
It is not necessary to show a bundle of errors in order to show ineffectiveness of
counsel, as it can be shown "even by an isolated error of counsel if that error is sufficiently
egregious and prejudicial." Murray v. Carrier, 411 U.S. 478, 496 (1986)
We know that this area of law {Ineffective Assistance of Counsel) constitutes the
largest number of claims raised on art. 11.07 habeas. These claims will always be
considered by the Court, with the narrow exception set out in Ex parte Nailor, 149 S.W.3d
125 (Tex. Crim. App. 2004) and Exparte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).
The courts will of course use the standard set out in Strickland v. Washington, 466
U.S. 668 (1984). The Court adopted the Strickland standard in Hernandez v State, 726 S.W.
2d 53, (Tex. Crim. App.1986). Strickland held, in part:
"First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
12
that counsel was not functioning as "counsel" guaranteed 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 was reliable"
A defendant in a criminal case in Texas is entitled to reasonably effective assistance
of counsel. Exparte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). To get habeas relief
for ineffective assistance of counsel under Strickland an applicant must show that his
counsel's performance was deficient and that there is a "reasonable probability," one
sufficient to undermine confidence in the result, that the outcome would have been
different but for counsel's deficient performance. Ex parte Scott, 190 S.W.3d 672 (Tex.
Crim. App. 2006).
The right to counsel is required at each stage of a criminal proceeding where the
substantial rights of the accused are affected. Mempa v. Rhay, 389 U.S. 128 (1967). And,
this right to counsel (as in Applicant's case) applies to the punishment phase as well as to
the guilt-innocence phase of the trial. Ex parte Hernandez, 988 S.W.2d 770 (Tex. Crim.
App. 1999).
GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW
(Denied Due Process By Failure Of Counsel And Court To Give Him Any
Notice Or Advice Regarding His Habeas Rights)
Applicant urges that the availability of habeas corpus, state and federal (Tex. Code
Crim. Proc. 11.07 and 28 U.S.C. Sec. 2254) was a collateral consequence of his conviction,
protected by the Fifth, Sixth and Fourteenth Amendments, and that it was within the scope
of the duties of his trial and appellate attorneys, and the judge, to give to Applicant at least
minimal notice of the availability of these valuable post-conviction rights, and that this
13
failing by counsel and court deprived Applicant of his right to effective assistance ofcounsel
and to due process and equal protection ofthe law.
Applicant submits that Padilla, while dealing with deportation, gives the Court
guidance in Applicant's case, as it shows:
(1) The Court does not make a distinction between direct and collateral
consequences: "We, however, have never, applied a distinction between direct
and collateral consequences to define the scope of constitutionally, 'reasonable
professional assistance' required under Strickland.n {Strickland v. Washington,
466 U.S. 668 (1984)
(2) Padilla is the first case in which the Supreme Court applied the rule in Strickland
to the failure of counsel to advise the defendant regarding a collateral
consequence of his conviction.
(3) The Court held counsel to be ineffective in failing to warn the defendant of a
collateral consequence of his conviction. (His deportation)
(4) The Court did not limit the applicability of its decision to misadvise regarding
the collateral consequences of a conviction.
(5) The case says, Applicant submits, that it's holding is retroactive. However, later
case law has held otherwise. Retroactive or not, Applicant urges that the
substance of the case applies to his case.
Applicant should have been given some heads-up, some notice, regarding his habeas
rights, akin to that notice given to defendants regarding their right to appeal (Tex. Rules
App. Proc. 25.2) and their right to file a pro se petition for discretionary review. (Tex.
Rules App. Proc. 48.4) The following is offered in further support of Applicant's position:
14
(A)We know that the issues presented via the habeas process are not those
presented at the first level of direct review where the appeal entails adjudication
on the merits. We do not ordinarily deal with "first-level" rights. To the
contrary, issues which were raised or should have been raised on direct appeal
look to be barred at the habeas level.
(B) Yet, we know that denial of counsel at any critical state of the proceeding entitles
the writ-applicantto relief. Exparte Sanders, 588 S.W.2d 383 (Tex. Crim. App.
1979) (A motion to revoke probation)
(C)We know that denial of counsel may be constructive, as with sleeping lawyers in
Burdine v. Johnson, 266 F. 3rd (5th Cir. 2001)
(D)We know that states have "affirmative obligations to assure all prisoners
meaningful access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977) See
also Thaddeus -Xv. Blatter, 15 F.3"1 378, 391 (6th Cir. 1999)
(E)We know that the right to a real lawyer attaches even to the process of pleading
guilty. Ex parte Biggins, 635 S.W.2d 743 (Tex. Crim. App. 1982)
Applicant was denied any notice or advice from his lawyers or the judge regarding
his post-conviction habeas corpus rights. While he believes that Ex parte Graves, 70 S.W.
3d 103 (Tex. Crim. App. 2002) would seriously challenge a claim of denial of counsel, he
nevertheless urges that the authorities submitted, when considered in their totality, support
his claim that he has been denied effective assistance of counsel and due process and equal
protection ofthe law. (U.S. CONST, amends. V, VI, XTV)
Applicant has chosen to present the broader, and perhaps more profound, ground
ofDenial OfDue Process OfLaw rather than merely attacking counsel.
15
The attached copy of the statistics (EXHIBIT THIRTEEN) compiled by this Court,
showing the numbers of writ applications filed, together with other interesting facts, is
revealing. The volume of junk applications filed each year without the assistance of real
counsel undoubtedly presents an unnecessary drain on the resources of the trial courts, the
Clerk of this Court, the Texas State Law Library, and this Honorable Court.
Any doubt regarding what notice or advice his counsel or the court did, or did not
give to Applicant regarding his habeas rights can be resolved by Exparte Brown, 158 S.W.
3d 449 (Tex. Crim. App. 2005) which demonstrates an exception in which a habeas
applicant may raise his claims for the first time by writ of habeas corpus, with the case
remanded to the trial court in order to expand the record (In Applicant's case it cannot be
/
presumedthat he was given some kind of notice regarding his habeas rights - i.e., as to the
trial records themselves there should be nopresumption of regularity in this case.)
Requiring that the convicted person be given notice, or assisted in some way, with
regard to the challenging habeas world would serve not only to help secure the right to due
process of law, but would strengthen and streamline this post-conviction process to the
benefit of all involved.
The filing of an Application for a writ of habeas corpus after a conviction is an
occurrence which is as likely as unlikely to happen: It is in reality a "collateral
consequence" of a conviction.
GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS
UNCONSTITUTIONAL
(Section 4 (a)-(c), Art. 11.07 Tex. Code Crim. Proc)
Section 4 (a)-(c), Art. 11.07, Tex. Code Crim. Proc. is unconstitutional Having
many moving parts, speaking lawyer's language, it is too complicated for the average
"inmate" to negotiate.
16
By way of review, prior to the adoption of the Habeas Corpus Reform Act of 1995
there was no statute restricting the filing of subsequent applications. The purpose of the
Act was to fulfill the Texas Constitutional mandate requiring a speedy and effective habeas
corpus remedy by limiting the availability of subsequent applications and encouraging all-
inclusive initial applications. ExparteKerr, 64 S.W.3d 414, 418 (Tex. Crim. App. 2002).
A floodgate was opened, through which all manner of documents would pass, the
applicants encouraged to throw in "everything but the kitchen sink", yet risking penalties
if too many "kitchen sinks" were thrown in.
The present habeas law, as constructed and construed, violates Applicant's right to
due process of law, to equal protection of the laws, and to due course of law. U.S. CONST.,
amends. V, XIV, Tex. CONST. Art. I, Sec. 10. Applicant's interest at issue is more than an
unrealistic wish. As required in Kentucky Department Of Corrections v. Dumschat, 452 U.S.
458,101 S. Ct. 2460 the interest amounts to more than a "unilateral" hope
Article 11.07 has created "an expectation or entitlement" as referred to in Exparte
Montgomery, 894 S.W. 324, (Tx. Crim. App. 1995). This is so because the statute places
"substantive limitations on official discretion" to deny the particularinterest created by the
statute. Kentucky Department Of Corrections v. Thompson, 490U.S. at 462, as shown by Ex
parte Montgomery, with the case also making this distinction: Unfettered discretion shown
by an absence of standards or mandatory prerequisites does not give rise to an entitlement.
Right off, from the start, Article 11.07 announces:
"Sec I. This article establishes the procedure for an Application
For writ of habeas corpus in which the Applicant seeks relief from
a felony judgment imposing a penalty other than death".
The statute hardly gives anyone unfettered discretion. It proceeds to exact duties
from the Applicant, the clerk of the court, the attorney representing the state, the
17
convicting court, the court appointed attorney or magistrate, the reporter, the state itself.
All this before we have even reached Sec. 4(a), the enemy of subsequent writ applications.
Applicants are providedwith a writ form which at first glance might look easy. And
that is the beginning of an applicant's road to failure. This statute, together with the writ
form provided to Applicant, created Applicant's expectation of entitlement. He was
entitled to the benefits of the habeas law. He has maintained his innocence. His freedom
was at stake He relied on the only legal avenueleft open for him. Yet, he was ill equipped
to deal with the habeas law and was destined for certain failure. Even if he successfully
placed his "facts" where they were supposed to be on the form, even if he had done a little
better job on his Application in its entirety, he was destined not to succeed. He had no
lawyer for his first two Applications. THE COURT'S OWN STATISTICS MAKE CLEAR
THAT THE ODDS WERE AGAINST HTM.
Scores of Applicant's attempt to take the habeas trip without counsel. The belief
that they have a fair chance at success is based upon a legal fiction. The writ of habeas
corpus should be "The Great Writ Of Liberty" as envisioned by Blackstone. In his biennial
address to the 83rd Texas Legislature, Texas Supreme Court Chief Justice Wallace B.
Jefferson asked lawmakers to establish a special commission to investigate wrongful
convictions. His message was clear: That public faith in our legal system is being under-
minded by wrongful convictions.
18
Encapsulation OfApplicant's Case
At trial Applicant, who was actually innocent, and indigent, received two fatal shots
to his right to a fair trial, to due process of law, to due course of law, to equal protection of
the law: He was denied a defense which would have resulted in his acquittal, and, having
been convicted, he was denied mitigating evidence which would have lessened his
punishment. In short, he was denied effective assistance ofcounsel by the several failings of
counsel.
After trial, his first tier efforts to secure his rights to a fair trial failed, and he then
found himself alone to face the post-conviction writ-world. He was untrained in the law,
and had been given no warning, advice, or "heads-up" by his counsel or by the trial court.
Further, he asserts that the "abuse of writ doctrine," Section 4 (a)-(c), Art. 11.07,
Tex. Code Crim. Proc. is unconstitutional.
However, it all falls on deaf ears unless Applicant shows himself entitled to get
another "bite out of the apple" In his effort to accomplish this tough, prohibitive,
"herculean", task he has urged (1) his actual innocence with his newly discovered evidence,
and, (2) his actual innocence "intertwined with Constitutional errors.'''' (3) Also, he shows
new laws.
Article 11.073, Tex. Code Crim. Proc, effective September 1, 2013, dealing with
"relevant scientific evidence" is already being referred to by some as the "junk science law."
Applicant asserts that this new law, at the very least, elevates, lends credibility, to his claim
of newly discovered evidence.
Padilla assists Applicant, as it emphasizes the continuing duties of trial counsel to
give the convicted person some warning regarding the collateral consequences of the
conviction.
19
introduced to the "Writ-World" and it is likely that he or she will have a serious
confrontation with it
Respectfully Submitted, This Concludes Applicant's Memorandum OfLaw
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
ALL THAT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
S£4%rvt-
ARDON MO
Attorney For Applicant
SBOT Number: 14390000
Address: P. O. Box 133183
Tyler, Texas 75713-3183
Telephone: (903) 593-1116
Fax: (903)590-1752
DANIEL<©2foES SIXTA, Applican
20
CERTIFICATE OF COMPLIANCE
In compliance with TRAP 73.1(f) this is to certify that
according to the word count of the computer program used to
prepare this document the number of words in this document is
5528, not including appendices, exhibits, cover page, table of
contents, table of authorities, and certificate of compliance.
sz^tjiyy^' /s-**-/? „,
Ardon Moore
Petitioner-Attorney for Applicant,
Daniel James Sixta
21
EXHJBTONE
\
™^v^
THE STATE OF TEXAS D.A.LOGNUMBERr»'JNt
'awawnyawa
WTNCV BOWES
RE: Writ Mo- ffiR-60,547-03
STYLE: SIXTA, DAWIEL JAMES 02 1A $ 00-24°
TRIAL CT WO: 923949-A 0004615122 DEC 13 2006
MAILED FROM ZIP CODE 78701
12/13/2006
This is to advise that the Court has denied without
written order the application for writ of habeas corpus on the
findings of the triar court without a hearing.
Louise Pearson, Clerk
DANIEL JAMES SIXTA
Neal Unit - TDC #1143232
9055 Spur 591
Amarillo, TX 79107
Itliiilllllli!! i 1! 11111111 i •! i 111 i i I liiiiliililuliiiimisi
OFFICIAL NOTICE FROM COURT OFCRIMINAL APPEALS OFTEXAS
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
OFFICIAL BUSINESS *.
RF
writ Nc$mT&OF4EXAS":' O ^1*V wvwan,^ wTwrvbowls
E: s^-^EI^ILt^FM"
. 02 1M $00.32°
j 0004288372 MAY24 2012
•"•'•-•'•'--"-•'•• y •••-.•< MAILED FROM ZIP CODE 78 701
The Court has dinnuss'ed-.your application for s'^rit'of h.^*---. .=?,-:
corpus without written ordp,: fei; nor^-compj i ance with Texas Rule
of Appelate Procedure 73.1. Srpc i fi cal lyj applicant's facts
supporti.rig grounds one «nd four .sne not on the prescribed for-iii. See
£x parte Bi.acHoctt, 191 5,K3d 718 (Texu Crim, App. 2f506).
;-1" K
J'-''-.'11 Up -1~ - '"'
9 0^') Pr:|i.' .K.'V!
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EXHIBIT FOUR
Scanned Jun 27, 2006
r\
No. 923949-A
EXPARTE IN THE 351st DISTRICT COURT
OF
DANIEL JAMES SIX [A HA RRIS COU NT Y, I E X AS
AFFIDAVIT
Belbrc me, the undersigned notary public, appearred Michael E. Barrow, who upon oath
stated the following:
"My name is Michael E. Barrow. I am a licensed attorney practicing in Houston, Harris
County. Texas. My Texas Bar card number is 01831900. On May 20, 2002, I was appointed by
Judge Mark Ellis of the 351"' District Court to represent Danief Sixta in cause number 870084, a
motion to adjudicate alleging that Mr. Sixta had violated a condition of his deferred adjudication
probation lor injury to a child. On June 6, 2002, I was appointed by Judge Ellis to represent Mr.
Sixta in cause number 907697 (later reindicted under cause number 923949) against the charge of
intoxication manslaughter alleged to have occurred on February 21, 2002. Mr. Sixta s trial
commenced on December 9/ 2002, and on December 12, 2002, he was found guilty by a jury of
intoxication manslaughter. On December 13, 2002, Mr. Sixta was assessed a term oftwenty years
in the penitentiary by the jury.
I. State whether trial counsel investigated potential witnesses who could have rebutted the
Slates physical evidence.
a
HI
Counsel spoke to the two prior attorneys who had .represented Mc. Sixta before $5
^cxcQ
£
RECORDER'S MEMORANDUM
This instrument is of poor quafijy
at the time ofimaging
COUO/
Scanned Jun 27, 2006
coimsol's appointment. Counsel also spoke with numerous attorneys who all indicated that they
knew o\:~ no expert who would testify for the nominal fee approved by the Court. Counsel did a
scene investigation but due to Ihe time elapsed since the date of the offense to the appointment of
counsel no-physical evidence could-be obtained. Counsel was left with the facts recorded by the
State s investigator Harris County Sheriffs deputy David Pearson and his accident reconstruction
Counsel reviewed those facts, figures and computations and again after consulting with other
attorneys came to the conclusion that adefense witness could not have testified differently as to the
evidence presented by the State.
2. State the extent to which counsel advised Applicant regarding Applicant's right to accept
the plea bargain or proceed to trial.
Counsel met with the Applicant on at least six occasions in Court. Counsel also met
with Applicant four times at the county jail. From counsel's first visit with Applicant through all
other visits Applicant indicated to counsel that he would not accept aplea bargain but wanted atrial.
Counsel informed Applicant ofevery plea bargain offer made by the State and Applicant refused to
accept any offer. Further on the day trial was to commence, Applicant was admonished by the Court
of the State's final plea offer arid Applicant refused to plead guilty.
3. State the extent to which counsel advised the Applicant regarding the potential range of
purushment for the primary offense, including if counsel advised Applicant to refuse the plea
bargain.
Counsel never advised the Applicant to rcfase any plea bargain offer made by the
Stale. Counsel never advised Applicant to refuse aplea bargain "because ofthe way the law read".
GOUOoO
Scanned Jun 27, 2006
Counsel advised Applicant Ihat Ihc range ofpunishment for the primary offense of intoxication
niansiaugiiicr was from two to twenty years in the penitentiary and a possible fine ofup to ten
thousand dollars. Counsel also advised Applicant that the range ofpunishment for the lesser included
nHcnse of felony driving while intoxicated was from two to ten years in the penitentiary and a
possible tine of ten thousand dollars. Additionally, counsel advised Applicant that if the Court
adjudicated him guilty for injury to achild, that he faced a punishment of six months to two years
ma stale jail. Counsel also advised Applicant that ifhe were found guilty ofthe primary offense and
was adjudicated guilty on his deferred probation the Court in its discretion could have the sentences
run consecutively as opposed to concurrently.
T Slate the extent to which counsel advised the Applicant regarding his right to trial by jury
and state whether Applicant manifested a desire to have ajury trial.
Counsel advised Applicant that he had an absolute right to a jury trial. Further,
counsel advised Applicant that it was Applicant's decision whether or not to have a trial. From
counsel's first meeting with Applicant until the Court admonished Applicant, on the day of trial, it
was always Applicant's desire to have a trial.
5. State whether counsel investigated, discussed, and considered Applicant's mental histoiy,
including his alleged attempted suicide and blood loss.
In the approximately six months from date of appointment until trial, counsel never
received any indication that Applicant had any mental problems. Counsel was always able to
communicate with Applicant and Applicant appeared to have no problems in discussing the tacts of
his case or trial strategics. Counsel was not aware of any attempted suicide by Applicant until the
COUOci;
Scanned Jun 27, 2006
day lite punishment portion ofthe trial was set to begin (December 13, 2002). Counsel was informed
'by the baliff that Applicant had cut his wrist the night before in jail. Applicant was brought into the
courtroom where counsel consulted with Applicant. Applicant had some bandages on his arms and
was told by the Court that he would have to unroll his sleeves to cover the bandages in front ofihe
jury. Counsel spoke with Applicant who other than being depressed about being found guilty
appealed to be line. Counsel consulted with Applicant about his testimony during punishment and
Applicant had no problem in responding. Counsel could not perceive any reason not to continue tfic
trial. As to blood loss by Applicant, there was no indication to counsel that Applicant was not able
to continue trial
o. State whether counsel observed anything in Applicant's speech, behavior and demeanor
winch caused counsel any concern about Applicant's competence to stand trial.
Counsel did not observe anything in Applicant's speech, behavior and demeareor
which caused counsel any concern about Applicant's competence to stand trial.
7. State whether counsel believed that Applicant had sufficient present ability to consult with
counsel with a reasonable degree of rational understanding and had a rational and tactual
understanding of the proceedings against him on the date of his trial.
Counsel believes that Applicant had sufficient present ability to consult with counsel
with a rational understanding and Applicant had a rational and factual understanding of the
proceedings against him. Applicant was very involved in his trial. He took notes throughout the trial
and proposed questions for counsel to ask.. Counsel and Applicant had numerous discussions oftrial
strategy and Applicant was a vocal participant. The day after Applicant's alleged suicide attempt,
CG0082
Scanned Jun 27, 2006
counsel spoke with Applicant about his testimony during the punishment stage and again Applicant
was a vocal participant. Counsel never saw any indication that-Applicant was unable to discuss his
case or that he did not understand the proceedings. Applicant never indicated to counsel that there
was any kind of problem and, counsel in speaking with and observing Applicant never saw a
problem"
lichael E. Barrow
Simied thiF"^' _ day of 2005
*-$T% CYNTHIA MONTANA
riW?! MY COMMISSION EXPIRES
mfe" October 29,2009
cotary Public
COUO&o
l/C/£~C//'/«= -/
EXHIBIT FIVb >w ^
6y tfoCf'j 6~' <^£L '*J
APPEARANCES
MS. MARKAY STROUD
5 Assistant District Attorney
6 SBOT NO. 24000229
7 MS. ELIZABETH SHIPLEY
8 Assistant District Attorney
9 SBOT NO. 24008031 -
10 1201 Franklin
11 Houston, Texas 77002
12 PHONE 713.755.5800
13 ATTORNEYS FOR THE STATE OF TEXAS
14
15
16 MR. MICHAEL BARROW
17 SBOT NO. 01831900
18 1314 Texas Avenue, Suite 13 0 0
19 Houston, Texas 77002
20 PHONE: 713.224.8383
21 ATTORNEY FOR THE DEFENDANT
22
23
24
25
1 convicted of the offense of operating a motor vehicle
2 while intoxicated.
3 THE COURT: To that allegation of a prior
4 conviction, how do you plead, true or not true?
5 THE DEFENDANT: True.
6 MS. SHIPLEY: It is further present that
7 before the commission of the offense hereinabove alleged
8 committed on February 21, 2002, the defendant on May 11,
9 1989, in the County Criminal Court at Law No. 5 of Harris
10 County, Texas, in Cause No. 8907002 was convicted of the
11 offense of operating a motor vehicle while intoxicated.
12 Against the peace and dignity of the State.
13 Signed, foreman of the grand jury;
14 THE COURT: To that allegation of prior
15 conviction, how do you plead, true or not true?
16 THE DEFENDANT: True.
17 THE COURT: All right. You may be seated.
18 Does the State wish to make an opening
19 statement?
20 MS. SHIPLEY: We do,'Your Honor.
21 THE COURT: You may proceed.
22 v/sTATE'S OPENING STATEMENT
23 MS. SHIPLEY: On February 21st, Martha Alford
24 was getting ready to have dinner with her sister. She
25 was on FM 1960 about 11 o'clock. She was getting ready
1 You will also be hearing from -- after-
2 Martha, you will be hearing from Deputy Pearson. You
I 3 will hear that he is an- accident reconstruction expert.
4 And he will tell you that the investigation that hie did,
5 when he got to the scene, based on his interview of the
6 witnesses, based on his looking at the skid marks, based
7 -s on his estimation of the speed, Martha Alford's left-hand
X 8 turn did not kill her sister. It was the defendant's
9 intoxication.
1.0 He will tell you that based on all of his
11 experience and his analysis of the scene, the defendant
12 had time to stop. He had time to slow down. He iaad time
to swerve, but because of his intoxication he didn't do
t X 13
14 those things. It could have been just a fender-bender.
15 That is what the deputy is going to tell you. It could
16 have been that he swerved and missed her completely. But
17 because he was almost three times the legal limit„ he
18 didn't do those things. Instead, he smashed right in the
19 center, crushing Linda Coble with his 4-Runner. That is
20 what the deputy will tell you.
21 You will also hear from Carolyn Messera, who,
22 I submit to you, is some of the most important testimony
23 you are going to hear. Because Carolyn Messen was also
24 involved in that accident and she was sitting in the
2 5 passenger seat of the defendant's truck. She is going to
<
EXHIBIT SIX
9- 2^ -T)466 U.S. 668,
686 (1984), that the benchmark forjudging anyclaim ofineffective assistance ofcounsel
is whether counsel's conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied upon as having produced a just result The Court
in Strickland, set forth a two-part standard, which has been adopted by Texas. See
Hernandez v. State. 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First the defendant
must prove by a preponderance of the evidence that counsel's representation fell below
an objective standard of reasonableness. Mitchell v. State, 68 S.W.3d 640, 642 fTex.
Crim. App. 2002); Narvaiz v. Stats, 840 S.W^d 415, 434 (Tex. Crim. App. 1992) (citing
Strickland, 466 U.S. at 688). Reasonably effective assistance ofcounsel does not require
error-free counsel, or counsel whose competency is judged by hindsight Mercado v.
State, 615 S.W.2d 225, 228 fTex Crim. App. 1981). Second, there must bea reasonable
probability that but for counsel's unprofessional errors, the result of the proceeding
would have been different Id. A"reasonable probability" is "a probability sufficient to
undermine confidence in the outcome." Id.
Article I, Section 10 of the Texas Constitution also requires that a aiminal
defendant receive effective assistance of counsel. However, the Texas constitutional
2
provision does not create a standard that is more protective of a defendant's rights
than that established in Strickland. Black v. State, 816 S.W.2d 350, 357 fTex. Crim.
App. 1991) (citing Hernandez v. State, 726 S.W.2d 53 fTex. Crim App. 1986)).
Therefore, an analysis of the effectiveness of Applicant's trial counsel in the primary
case pursuant to the Strickland standard satisfies both the federal and state
constitutional requirements.
Failure to Investigate
Applicant alleges that his trial counsel failed to investigate the blood sample and
the accident report Applicants writ at 7; Applicants memorandum at 7. Applicant
alleges thatdefense counsel did not have a complete copy of the accident report until the
beginning of trial which allegedly states that the other driver, Ms. Martha Afford, was
inattentive and failed to yield. Applicants memorandum at 7.
A^ To obtain habeas relief in a failure to investigate claim, Applicant must show
what-a more in depth investigation would have revealed. JMooney v. State, 817 S.W.2d
693 fTex. Crim. App. 1991). In habeas proceedings, the Applicant must allege
sufficient facts which, if true, would entitle him to relief Ex parte MaJdonado, 688
S.W.2d 114, .116 (Tex. Crim App. 1985).
Applicant fails to show what a more in depth investigation of the blood sample
would have revealed and fails to show how Ms. Afford's inattentiveness and failure to
yield establish a reasonable probability that but for counsel's failure to investigate the
accident report, the result of the proceeding would have been different Therefore,
Applicant fails to allege sufficient facts, which, if true, would entitle him to relief.
Maldonado, 688S.W.2d at 116.
Accordingly, the instant allegation is without merit and should be denied.
Failure to Investigate Witnesses
Applicant alleges that his trial counsel failed to hire an expert witness and
failed to interview all of the witnesses until the day of triaL Applicants writ at 7;
Applicants memorandum at 11. Specifically, Applicant alleges the court granted a
motion designating money to be used to hire an expert in accident site reconstruction.
Applicants memorandum at 6. However, Applicant alleges counsel was ineffective
because no expert was presented. Id. Applicant further alleges that counsel failed to
seek out an expert witness who would have impeached the state's physical evidence.
Id. Applicant identifies William Russell Haight of the Collision Safety Institute as a
possible expert witness, and alleges that with Mr. Haigbts tes&mmy, counsel could
have developed a better defense. Id at 6-7.
To obtain relief for counsel's failure to present or investigate witnesses, an
Applicant must show that potential witnesses were available, and that their testimony
would have benefited the defense. King v. State, 649 S.W.2d 42, 44 fTex. Crim. App.
1983); WUkerson v. State, 726 S.W.2d 542. 551 (Tex. Crim. App. 1986).
Applicant fails to carry his habeas burden because he fails to show the
potential witness was available and that his testimony would have benefited the
defense. Applicant's conclusory allegation that Mr. Haight's testimony would have
"developed a better defense" is not enough to warrant habeas relief. Exparte Young,
418 S.W.2d 824 (Tex. Crim. App. 1967). Even if sworn to, the allegation is insufficient
to overcome the State's denial. Exparte Empey, 757 S.W.2d 771, 775 fTex. Crim App.
1988).
Furthermore, assuming, arguendo, that defense counsel limited his investigation,
an attorney's decision to limit his investigation may be reasonable under the
circumstances. Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.); Butler v. State, 716
4
I
I be resolved in the instant proceeding. Respondent further requests that the Court order
| Applicant's counsel in the primary case, MICHAEL E, BARROW, to file an affidavit
summarizing the actions taken to represent the Applicant and responding to the
I allegations contained in the application.
IV.
Applicant raises questions of law and fact which can be resolved by the Court of
Criminal Appeals upon review of official court records and without need for an
evidentiary hearing.
V.
Service has been accomplished by sending a copy of this instrument to the
following address:
DANIEL JAMES SIXTA
#1143232 - Neal Unit
9055 Spur 591
Amarillo, TX 79107-9696
SIGNED this 29th day ofSeptember, 2005.
Respectfully submitted,
it District £&ssmey
larris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
Texas Bar I.D. #24027780
Prepared by Mary E,. ISasonao
Legal Intern, Harris County
12
EXHIBIT SfcVfcJN
AFFIDAVIT
THE STATE OF NEBRASKA
COUNTY OF f>>sJaS
BEFORE ME, the undersigned notary, on this day personally appeared Janet
Koski, a person whose identity is known to me. After I administered an oath to her, upon
her oath she stated:
.p^ My name is Janet Koski. Iam over twenty-one (21) years of age. Iam aresident of
I /f)Lyrt \U .S County, Nebraska. I am fully competent to make this Affidavit. All
statements within this Affidavit are within my personal knowledge and are true and
correct
Daniel James Sixta, who is presently incarcerated at the Coffield Unit, Tennessee
Colony, Texas, TDCJ No. 1143232 is my brother. He was convicted of intoxication
manslaughter in 2002 in the 351st District Court of Harris County, Texas in cause no.
923949. He is filing his application for writ of habeas corpus.
A critical question in his trial was who actually caused the collision between the
vehicle he was driving and another vehicle, the passenger in the other vehicle having died
as a result of the collision?
My brother was financially unable to make bail orto retain an attorney, and hewas
compelled to go to trial without his own expertwitness to combat the State's version of the
collision. It was not until funds were provided by me that we were able to retain an
accident reconstruction expert, and the "Cope" report was clearly in my brother's favor,
showing he did not cause the coUision. This defense was denied to him at his trial, through
no lack of diligence on his part.
This "evidence" was "newly discovered" as far as he was concerned, and he used
"due diligence" to obtain it I believe the report will be a part ofhis writ application.
^So^ct-, &
JANET KOSKI
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on
this y^ day of OQJrhe^ .2013. .
My commission expires: /' H'\5
GENERAL NOTARY - State of Nebraska County, State of Nebraska
KRISTYNWIEHL
MvComm. Exp. July 14,2015
EXHIBIT EIGHT
PETITIONER AFFIDAVIT
On December 12, 2012, I DANIEL JAMES SIXTA TDCJ #1143232, was convicted
of Intoxication Manslaughter, Case No. 923949.
The NEWLY DISCOVERED EVIDENCE, was only found, because I never surrendered
my rights to exercise DUE DILLIGENCE to obtain an expert in auto accident
recollision. The report was thus obtained solely as the result of an
unexpected and previously unforeseen "Beneficence" of a third party that
had no prior duty or obligation to provide any funding.
I was unable to secure funds before'this date because I was "INDIGENT"
I didnot have the means to hire any auto collision expert because of
this fact.
At the time of my arrest, I could not make bail, because I was under
DUAL indictments for the same charge, and because of this fact I had
fell behind on my mortgage payments, and I was unable to sale my home
of which I had live in for over 16 years and had $65,000.00 in equity.
I have never recieved any type of settlement from my mortagage company
or my auto insurance company. /
This NDE was unavailable until July 2007, when a Ms. Janet Koski agreed
to provide funding to hire and expect. I was unable to obtain such
evidence free of charge. I have never had more than afew hundred
dollars on my commissary account since my arrest.
Although there was some delay between my obtaining this experts report.
I was ultimately able to secure the funding to hire an expert and have
the facts analysis, and prove that the State's finding were incorrect
and were a product of erroneous analysis of available data.
P.l
INMATE'S DECLARATION
I, DANIEL JAMES SIXTA, BEING PRESENTLY INCARCERATED IN TDCJ at the Coffield
Unit, Declare under penalty of perjury that, according to my belief, the
facts stated in this PETITIONER AFFIDAVIT are true and correct.
Signed on June 22, 2013.
)ANIEL JAMES' SIXTA
TDCJ #1143232
Coffield Unit
2661 FM 2054
Tennessee Colony, TX 75884
P.2
EXHIBIT NINE
INDEX
REGARDING APPLICANT'S ACCIDENT RECONSTRUCTION REPORT
AFFIDAVIT OF EXPERT
HIS RESUME'AND CREDENTIALS
THE ACGIDDENT RECONSTRUCTION REPORT
COPE'S EXPERT TESTIMONY IN OTHER COURT CASES
EXHIBIT NINE
TRIAL COURT CAUSE NO. 923949
DANIEL J. SIXTA § IN THE DISTRICT COURT
Appellant §
§
§ HARRIS COUNTY, TEXAS
vs. §
§
THE STATE OF TEXAS §
Appellee § 351 st JUDICIAL DISTRICT
AFFIDAVIT OF CAM COPE
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
BEFORE ME, the undersigned notary, on this day, personally appeared Cam Cope, a person whose
identity is known to me. After I administered an oath to him, upon his oath, he stated:
"My name is Cam Cope. Iam over twenty-one (21) years of age. I am a resident of
Montgomery County, Texas. I have never been convicted of a crime, and I am fully
competent to make this Affidavit. All statements within this Affidavit are within mypersonal
knowledge and are true and correct.
In 1971, I obtained a Bachelor of Science degree in Biology and Chemistry from
New Mexico Highlands University.
After graduation from New Mexico Highlands University, I served in the United
States Army from 1971 through 1974. As part of my duties in the United States Army, I
was involved in surgical research at both Walter Reed Army Medical Center and William
Beaumont Army Medical Center.
Upon discharge from the United States Army, I took sixty (60) hours of
undergraduate and graduate courses at Texas A&M University. These courses included,
but were not limited to, chemistry and physics. Also, within the Texas A&M University
System, Icompleted an eighty (80) hour course in Advanced Accident Reconstruction.
Accident Reconstruction courses are not apart ofany engineering degree program, so the
engineering and reconstruction technology is basically obtained through the Society of
Engineers and their peer reviewed articles and teaching.
In fact, Ihave continued with my education overthe years, attending classes taught
by the Society of Automotive Engineers and accident reconstruction organizations
regarding vehicular accidents and occupant restraint systems. Courses Ihave completed
include Crash Data Retrieval Systems, Air Bag Litigation, Vehicle Restraint Systems and
Airbags, Occupant Restraint and Protection, Airbag Field Performance, GM Technical on
Airbags, Technology and Performance of Airbags, and Airbag Design and Performance.
For adetailed list of the courses that Ihave taken in my effort to continue my education,
please see my most recent curriculum vitae attached to this Affidavit and incorporated
herein by reference as iffully set forth.
Iam amember ofthe National Association of Professional Accident Reconstruction
Specialists and the Texas Association ofAccident Reconstruction Specialists. Also, Iam a
member of the Society of Automotive Engineers. Additionally, Iam a member of the
American College of Forensic Examiners. For adetailed list of my professional affiliations,
please see my most recent curriculum vitae attached to this Affidavit and incorporated
herein by reference as if fully, set forth.
During the course of my career, Ihave continued to be active with the Society of
Automotive Engineers as a sectional leader and have also been Chairman of the
Engineering and Technology for the American College of Forensic Examiners, and Ihave
published several papers. For adetailed list of my published papers, please see my most
recent curriculum vitae attached to this Affidavit and incorporated herein by reference as if
fully set forth.
Since 1985,1 have worked in the area ofaccident reconstruction, primarily involving
motor vehicles, with an emphasis on occupant restraint systems, including airbags. In this
connection, Ihave testified as an expert witness on many occasions.
In September 1996,1 founded Cam Cope Consulting. This firm provides consulting
services with an emphasis on accident reconstruction and identification of occupant
restraint system usage, including airbags and seatbelts. Auto Fire &Safety Consultants,
Inc. d/b/a Cam Cope Consulting has been an ongoing venture from September 1996 to the
present.
I am also a Licensed Private Investigator, with the State of Texas, this is in
compliance with Section 1702.104, Texas Department of Public Safety, Licensing and
Duties of Investigation Companies and Security Service Contractors. Unless the person
holds alicense as an investigation company, aperson may not: Engage in business activity
for which a license is required under this chapter. Aperson acts as an investigation
company for the purposes of this chapter if the person: (1) engages in the business of
obtaining or furnishing, or accepts employment to obtain or furnish, information related to:
(a) crime or wrongs done or threatened against a state or the United States; (b)the
identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location,
affiliations, associations, transactions, acts, reputation, or character of aperson; (c) the
location, disposition, or recovery of lost orstolen property; or (d) the cause or responsibility
for afire, libel, loss, accident, damage, or injury to aperson or to property. (2) engages in
the business of securing, or accepts employment to secure, evidence for use before a
court, board, officer, or investigating committee; (3) engages in the business ofsecuring,
or accepts employment to secure, the electronic tracking ofthe location ofan individual or
motor vehicle other than for criminal justice purposes by or on behalf of agovernmental
entity; or (4) engages in the business of protecting, or accepts employment to protect, an
individual from bodily harm through the use of apersonal protection officer. Copy of the
related sections attached.
Ourfirm has been contacted by Janet Koski on behalfofdefendant, Daniel J. Sixta,
to evaluate and reconstruct avehicular,accident involving a1994 Toyota 4-Runner driven
by Daniel J. Sixta and a2001 Ford Focus SE driven by Martha Alford that occurred on
February 21, 2002, at 11000 FM 1960 W., Houston, Harris County, Texas.
Our investigation is based on .the collision analysis, injury analysis, accident
avoidance analysis, injury avoidance analysis, accident causation analysis, accident
prevention and injury reduction analysis, speed ofvehicles during pre-trip, trip and post-trip
phases ofthe rollover event, motion ofvehicles during pre-trip, trip and post-trip phases of
the rollover event, accident severity, vehicle deformation, accident scene geometry,
potential avoidance scenarios, vehicle deceleration rates, driver actions including reaction
time, perception, visibility and contributing factors and cause of the rollover event.
1. Although Iwas not present at the accident and have no personal
knowledge of the accident this is not the criteria required in duPgntde
Nemours &Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); EmvjJnjted
Stetes, (1923), Daubert v. Merrell Dow Pharmaceutical 509 U.S. 579
(1993).
2. The investigation of accidents in the State ofTexas requires that you are
licensed with the State ofTexas as a Licensed Private Investigator, my
license number is Texas P.I. # A09524. The investigation of this accident
was needed to establish the opinions listed in my report.
3. Itis not required that measurements be taken at the scene. For the scene
evaluation I used aerial photographs which are also widely used by the
Accident Reconstruction Profession and information listed on the police
report to illustrate for the jury the positioning of the vehicles prior to and
during the collision. Since no measurements orevidence wasretained by
the police department on the day ofthe accident, the methodology Ihave
used to document the scene is well accepted by the reconstruction
profession. Please refer toAccident Reconstruction Analysis by Rudolph
Limpert, Fifth Edition, Chapters 3 & 5. (See attached).
k Measurements of same or similar vehicles involved in the accident were
obtained from All Data and manufacturer specifications that accurately
document similar vehicles. Copies of the All Data Spec Sheets are
. provided with this Affidavit. Exemplar photographs of the exemplar
vehicles have also been taken to document the structure of the vehicles.
The inspection of similar vehicles was conducted in this investigation
since the vehicles and scene were not available. The photographs
provided by the various entities represent and show the damage to the
vehicles. The photographs accurately show the crush and evidence
marks that we were able to use in the reconstruction of this accident.
The crash tests, studies and calculations used in the reconstruction of
this accident are available through the Society ofAutomotive Engineers,
Accident Reconstruction Journals, various other peer reviewed literature,
testing and calculations to show the sequence ofevents in this accident.
6. I relied on the police report to the extent recommended by the accident
reconstruction profession and the various sources of literature related to
the use of police and witness statements. See Chapters 3 & 5 of
Accident Reconstruction Analysis by Rudolph Limpert, Fifth Edition.
7. The factual observation of the accident scene by the Harris County
Sheriffs Department was documented by the investigating officer using
the skills required by the officer's profession.
8. The Harris County Sheriffs Department report is a factual report that
represents the investigation as it was conducted on the day of the
accident. As an officer, D.T. Pearson has the duty to document the I
evidence and factors associated with the accident. I have reviewed
Officer Pearson's report and trial testimony.
9. . I have used Engineering Dynamics Corporation (EDC) software, with the
aid of an on-staff engineer, which includes, HVE, EDCRASH, EDSMAC
and SIMON. The HVE simulation environment was introduced in 1996
for the 3-D user, with the 2-D simulations dating back to the 1980's and
early 1990's. The 3-D, 5,0 version was developed as a sophisticated, 3-
dimensional user environment for setting up and executing simulations
involving humans and vehicles interacting with their environment. In
2001, SIMON along with DyMESH was introduced to provide simulation
involving rollover and override, as well as other 3-dimensional collision
issues. The HVE programs have been widely accepted by the Accident
Reconstruction profession, widely published and peer reviewed. This
program was used to formulate other plausible scenarios based on the
evidence made available.
10. | have used the photographs provided and the simulation to determine
the speeds at impact, as well as post-impact speeds to determine the
factors associated with the rollover event.
11.
My opinions are based on vehicle evidence shown in the photographs, an
understanding of the scene, and an understanding of the vehicle
dynamics and the motions of the vehicle. These opinions regarding this
accident can be expressed to the jury using the scientific knowledge and
scientific methodology used by the accident reconstruction profession.
The photographs reviewed of the vehicles involved in this accident show '
the factual evidence needed to provide the opinions Ihave listed in my
report."
Further t sayeth not.
tan>Cbpe, P(
Auto Fire & Safety Consultants, Inc.
d/b/a Cam Cope Consulting
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on
this the2^1 day of October 2007. y
Notarypu
9- My Commission: /tf/^r/L<^O/0
Jotary public for Montgomery County
State Of Texas
The cases .isted below are the guide.ines and criteria used in reconstructing an accident scene.
In Fryev, United States (1923), the Rye Rule states:
Novel scientific evidence must be shown to be generally accented in thp relent c.;„ *t
admissible. Thelatesthas come to be known"^T^ "m^t0 be
lnreality,fordecadesfewchallengesweremadetotheadmissibilitvofexnprtPViw0nraonthaC * *
for most fire investigators. CdU',IISSID,,^OTexPe'tevidence,sothe^e.testwasnotanissue
In Daubertv. MerreltDow Pharmacolitirai 5no 11 c C70 fig™ thr ^,,n,ri, , ~ . . ,.,
scientific expert testimony on the basis of'four criteria ( >' P^ C°m made tnalJUdges the Satekeeperof
1. Whether the theory used by the expert can be and has been tested-
2. Whether the theory or technique has been subjected to peer review
3. The known or potential rate of error of the method used- '
4. The degree ofthe methods orconclusion's acceptanceWhin the relevant scientific community.
know,edge, ski,, experience, training, or education, may ^Te^
totSe"
Otherreference materials include:
1. Low Speed Automobile Accidents, Accident Reconstruction anH rw^w w ~ '
Biomechanics, Second Edition byAlan J. WaS ,PhT^S"J^?"^ and "
2. Thomson,
Low SpeedF.P.D.
Rearand
Impacts
Navin,andM.J.theMacnabb-
Elastic Propels oftLob^ifmw^Mo^'MA;
mA"^oUes, SAE 896142, by DP. Rom.lly, R.W.
4. Analysis ofHuman Test Subject Kinematic Responses to Low Velocity Rear End Impacts SAF QinfiRa „
Whitman E. McConnefl, Richard P. Howard Herbert MGuzman inhn r 7Zt ,lmPa^s^E 930889, by
Benedict, Harry L. Smith and Charies P. Hatse? ' °B> B°mar'JameS H' Raddin-James V-
5. Human OccupantKinematic Response to Low Speed Rear-End Impacts SAF Q4nw h„xh„ .o L
££na We,cte, RofcrtD. A„^„. MichI M. Rio, ££%%.SiSSS
7- aD*j™s""
Auto Fire &
Safety Consultants
Cam Cope
Curriculum Vitae
www.fJresafetyconsulfant.cnm ccope@firesafetyconsultant.com
AREAS OF SPECIALIZED EXPERTISF
Accident Reconstruction Fire Origin and Cause
Occupant Restraint Systems/Airbags Fuel Systems Integrity, FMVSS 301
Nikon Total Station Scene Surveys Interior Flammability, FMVSS 302
Crash Data Retrieval GM - Ford vehicles Trucking Accidents
Case Evaluation Vehicle Products Liability /Vehicle Assessment /Defects Vehicle Fire Testing
Mr. Cope received aBachelor of Science degree in Biology and Chemistry in 1971 and has been investigating and reconstructing
accidents for the past twenty (20) years. During that period, he continued his education and training through the Society of
Automotive Engineers (SAE). This organization provides the most peer reviewed literature and training with regards to vehicles and
accident reconstruction. Engineering and reconstruction of accidents is primarily taught through SAE and various Accident
Reconstruction seminars conducted throughout the United States. The Texas Accident Reconstruction Association as well as the
National Accident Reconstruction Association also provides training and literature for the Accident Reconstructionist. The National
Fire Protection Association, International Association ofArson Investigators, National Association of Fire Investigators and various
Chapters of Accident Reconstruction and Fire Investigation also provide training and technology in the field of vehicle accident
reconstruction. In addition to these training organizations, he has also received training through the Texas A&M Extension Service
related to Accident Reconstruction, including Advanced Accident Reconstruction. Since none ofthe University Engineering Degreed
programs offer education or training in Accident Reconstruction or Fire Science Technology, this education mustbe obtained through
the various organizations listed in his Curriculum Vitae. Mr. Cope currently teaches vehicle fire investigation at Eastern Kentucky
University, which is one ofthe few universities offering adegree in Fire ScienceTechnology. Cam Cope currently works on the SAE
Accident Reconstruction Committee and the Vehicle Fire Task Force Committee, which is apart of the revisions committee for the
vehicle section of NFPA 921. Please refer to the attached Curriculum Vitae for Cam Cope for his complete educational background
and list of seminars attended.
Cam Cope, Cuniculum Vitae
ACADEMIC EDUCATION!
B.S., Biology/Chemistry, New Mexico Highlands University, 1971
Undergraduate and Graduate Courses (60 Hours), Texas A&M University, 1973
Advanced Accident Reconstruction, Texas A&M(80 Hour Course), 1993
CFEI, Certified Fire Explosion Investigator
CFII, Certified Fire Investigator Instructor
CVFI, Certified Vehicle Fire Investigator
MILITARY
U.S. Army 1971-1974
Surgical Research, Walter Reed Army Medical Center
Medical and Veterinary Team, Fort Benning, GA
Veterinary Team, K-9 unit, Viet Nam
Surgical Research, William Beaumont Army Medical Center
LAW ENFORCEMENT
College Station Police Department Reserve Officer, 1985 to 1990
Police Academy Training-Accident Investigation, Routine Patrol
PROFESSIONAL EXPERIENCE
September 1996 to Present Auto fire &Safety Consultants, Inc.
FormerlyCamCope Consulting
Vehicle and structural fire investigation (origin and cause)
• Vehicle Fire Testing
• Accident Reconstruction: computer modeling (EDCRASH-EDSMAC-HVE 3D, SIMON, DyMESH)
• Case evaluation and rapid response in the documentation ofvehicular accidents
• Scene drawings &diagrams, inspection ofvehicles, and research
• Nikon NPL-820 Total Station,AIMS Software
• Products' liability and identification of defective products, testing, and research
• Identification of occupant restraint system usage, including airbags and seatbelts
. Crash Data Retrieval (CDR) in GM Vehicles (1996-2003): Retrieval ofdata five seconds pre-impact and five seconds post-
impact, and near-deployment data (black box data)
• Rollovers, trucking accidents, industrial andconstruction accidents
January 1991 to 1998 Engineering Reconstruction Associates
• Accident reconstruction
• Model building
• Partner with M. Lewis Coody, Registered Professional Engineer, State of Texas #48387
• Assistant Professor Department ofConstruction Science
January 1992 to September 1996 Crowley, Marks, and Douglas
• Accident reconstruction, evaluation, and research
• Vehicular fires (cause and origin) determination and documentation
• Evaluation and investigation ofvehicle products liability
January 1985 to January 1992 Crowley and Waltman
• Investigation of motor vehicle accidents including the related injuries, fires, occupant restraint systems involving serious
injury or death .
• Fire cause andorigin
7/12/2007 Auto Fire& Safety Consultants, Inc. 2
18500Trails EndRd.,Conroe, TX 77385
Off: 281.362.0930* Fax: 281.362.1329
Cam Cope, Cuniculum Vitae
PROFESSIONAL AFFILIATIONS
NAFI, National Association of Fire Investigators (Board Member)
CFEI, Certified Fire and Explosion Investigator
CFI|, Certified Fire Investigation Instructor
CVFI, Certified Vehicle Fire Investigator
NSTI, National Safety and Transportation Institute (Board Member)
NAPARS, National Association of Professional Accident Reconstruction Specialists
TAARS, Texas Association ofAccident Reconstruction Specialists
SAE, Society ofAutomotive Engineers
Committee Accident Investigation Practices Standards
Vehicle Fires Committee ,
Auto/Pedestrian Standards
Sectional Leader, Gulf Coast Chapter
NSC, National Safety Council
IAAI, International Association ofFire and Arson Investigators
NFPA, National Fire Protection Association
ACFE, American College ofForensic Examiners
Engineering andTechnology Board
Diplomat, Chairman ofEngineering andTechnology 2000
Continuing Education Committee and Editorial Review Board
Texas Board of Private Investigators and Private Security Agencies
Licensed Private Investigator, License A09524
TALI, Texas Association ofLicensed Investigators, Inc.
FIAA, Fire Investigation Association ofAlberta (Chapter 38 IAAI)
CTFIA Central Texas Fire Investigators Association
PUBLICATIONSAND PRESENTATIONS
♦ Cam Cope, The Investigation of Electrical Fires in Vehicles," April 20- 21, 2007, Irmo, South Carolina; Fire Explosions,
and Electricity: Intensive Instruction in Irmo (Instructor)
♦ Cope, Cam, "2006ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29,
2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures; Faro Scene 3D Laser Scanner. (Instructor)
♦ Cope, Cam, Inner Circle of Investigators 2005 Annual Conference, "Heavy Truck Fires," Williamsburg, Virginia, October
14-15,2005. (Instructor).
♦ Cope, Cam, 2005 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar, NAFI and Eastern
Kentucky University, Richmond, Kentucky, Sept. 26-29, 2005. (Instructor).
♦ Cope, Cam. "Crash Data Retrieval", 2004 Vehicle Fire, Arson &Explosion Investigation Science and TechnologySeminar,
NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept. 27-30,2004. (Instructor).
♦ Cope, Cam. "Sources of Information", 2004 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar,
NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept 27-30,2004. (Instructor).
♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Bums. 2004 Vehicle Fire, Arson, &
Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; September27-30,2004. Live
bums- Vehicle Fire Testing.
♦ Cope, Cam. "Vehicle Fire Investigation", International Symposium on Fire Investigation, NFPA, Fire Service College,
Moreton-in-Marsh, Gloucestershire, UK, June 27-30,2004. (Instructor).
7/12/2007 Auto Fire& Safety Consultants, Inc.
18500Trails EndRd.,Cenroe, TX 77385
Off: 281.362.0930 • Fax: 281.362.1329
Cam Cope, Cumculum Vitae
♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Burns. 2003 Vehicle Fire, Arson, &
Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; October 1-4, 2003. Live
bums- Vehicle Testing.
.♦ Cope.Cam. "Vehicle Investigation Issues." 2003 National Fire, Arson &Explosion Investigation Training Program, NAFI,
. Sarasota, Florida; August 13,2003. Vehicle testing andlive bums.
♦ "2002 Vehicle Fire, Arson &Explosion Investigation &Technology Seminar," National Association ofFire Investigators
and Fire and Safety Engineering Technology; Eastern Kentucky University, Richmond, KY; September 30-October 2,2002.
(Instructor).
♦ Cope, Cam and Bill Camp. "Use of Digital Photography in Investigation." American Trial Lawyers Association Presentation:
Chicago, Illinois; July31, 2000.
♦ Cope, Cam. "Airbag Investigation." The Legal Investigator - All CLI Issue. National Association of Legal Investigators;
May 2001.
♦ Cope, Cam. "Motor Vehicle Fires and NFPA 921." Test Burning ofVehicles 2001: National Advanced Fire, Arson, and
Explosion Investigation Science and Technology: Eastern Kentucky University, Richmond, Kentucky; March 13-17,2001.
♦ Cope, Cam and Bob Swint. "Airbag Safety &Investigation." The Forensic Examiner. May/June 2000.
. ♦ Cope, Cam and Dennis Andrews. "Low-Speed Rear-End Impact Analysis / Seat Belts / Airbags." ACFE Workshop
Presentation: New York City, New York; October 29- November 1,1999.
♦ Cope, Cam. "History of Occupant Restraint Systems!" ACFE 6th National ScientificAcademy Naples, Florida; October12-
14,1998.
♦ Cope, Cam and Bob Swint. The Documentation ofVehicles Involved in Accidents." Engineering and Technology, The
Forensic Examiner. Vol. 7: Sept/Oct1998.
♦ Cope, Cam. "Investigation ofVehicle Rollover." Advanced Forensic Civil Investigations. Lawyers &Judges Publishing Co.,
1997.
♦ Cope, Cam. "Restraint System Documentation and Investigation." Presentation at 5ft National Scientific Academy &
Retreat ofthe American College ofForensic Examiners: San Diego, CA; December 11-13,1997.
♦ Cope, Cam. "Investigation ofan Automobile Accident." Presentation atthe National Association of Legal Investigator Mid-
Winter Conference: Chicago, Illinois; March 1995.
♦ Cope, Cam. "Investigation ofa Products Liability Case." Presentation atthe National Association ofLegal Investigator
Silver Anniversary Conference: St. Louis, Missouri; 1992.
♦ Cope, Cam. "Vehicle Documentation." Presentation at N.A.L.I. National Convention: Houston, Texas; 199.1.
♦ Cope, Cam. "Accident Investigation Forms," Aseries ofdata forms to beused by Accident Investigators.
CONTINUING EDUCATION
♦ Technical Committee on Hazard and Risk ofContents &Furnishings; National Fire Protection Association (NFPA); May
1-2,2007.
♦ The Warren Group, Forensic Engineers &Consultants, Fires Explosions and Electricity: Intensive Instruction in Irmo;
April 20-21,2007.
♦ 2007 SAE World Congress, Detroit Michigan, SAE ABA Fire Safety Committee, SAE Motor Vehicle Fire Investigation
Task Force, andAIRP Committee Meeting; April 16-19,2007.
7/12/2007 Auto Fire &Safety Consultants, Inc. 4
18500Trails EndRd„Conroe, TX 77385
Off: 281.362.0930•Fax: 281.362.1329
Cam Cope, Curriculum Vitae
♦ "Fire and Materials 2007", Interscience Communications Limited, Fire School, San Francisco, California, January 29-
31,2007.
♦ Cope, Cam, "Central Texas Fire Investigators Associations Annual Meeting &Conference; December 12-13,2006,
Austin, Texas; Electrical Fires 102Training Program
♦ Cope, Cam, "2006 ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29,
2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures.
♦ Cope, Cam. "2006 ARC-CSI Crash Conference", June 5-8,2006, Las Vegas, Nevada. Crash Testing - Rollover,
Motorcycle and Bus.
♦ 2006 SAE World Congress, Detroit, Michigan, SAE AIRP Committee Meeting, SAE ABA Fire Safety Committee,
Hydrogen Vehicle Safety (Parts 1&2), Fire Statistics and Analysis (Parts 1&2), Material Flammability and Fire
Experiments (Parts 1 &2); April 3-7,2006.
♦ Live Bum Testing of Five (5) Ford Vehicles Related to Cruise Control Deactivation Switches conducted by Nationwide
Insurance, Houston, Texas; December 5, 2005.
♦ Inner Circle ofInvestigators, 2005 Annual Conference, Investigative Professional Development Conference,
Williamsburg, Virginia, October 14-15,2005. (10 hrs)
♦ Vehicle Fire, Arson &Explosion Investigation", (Total Bums - Testing) Science &Technology Seminar, NAFI, Fire and
Safety Engineering Technology, Eastern Kentucky University, September 26-29,2005.
♦ NFPA 921 - Task Force Committee Meetings Relative Changes to NFPA 921, Minneapolis, Minnesota, September 14-16
2005.
♦ 2005 NAFI - National Seminar on Fire Analysis Litigation, Sarasota, Florida, August 11-12, 2005.
♦ 2005 NAFI -National Fire, Arson &Explosion Investigation Training Program, Sarasota, Florida, Computer Fire Modeling,
August8-10, 2005.
♦ 2005 SAE World Congress, Detroit, Michigan, "Fire Safety" "Accident Reconstruction", "Side Impact &Rollovers",
"Restraints Systems". (AIRP Standards Committee &VFI Advisory Group); April 12-15, 2005.
♦ "Fire and Materials 2005", Interscience Communications Limited, Fire School, San Francisco, California, January 31-
February 1,2005.
♦ "Fire Hazard To Occupants of Road Vehicles", Interscience Communications Limited, Fire School, San Francisco,
California; January 31-February 1,20.05.
♦ "Cone Calorimeter Predictions ofFMVSS 302 Performance", Interscience Communications Limited, Fire School, San
Francisco, California; January 31 -February 1, 2005.
♦ "Vehicle Fire, Arson &Explosion Investigation", (Vehicle Burns - Testing) Science &Technology Seminar, NAFI, Fire and
Safety Engineering Technology, Eastern Kentucky University, September 27-30,2004.
♦ "Electrical Faults as Fire Causes" (The Investigator's Perspective), NFPA International Symposium on Fire Investigation,
Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 29,2004.
♦ "Forensic Pathology", NFPA, International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh,
Gloucestershire, UK, June 29,2004.
♦ "Scene Management", NFPA, International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh,
Gloucestershire, UK, June 29,2004.
7/12/2007 Auto Fire &Safety Consultants, Inc. 5
18500Trails EndRd., Conroe, TX77385
Off: 281.362.0930 • Fax: 281.362.1329
Cam Cope, Cum'culum Vitae
♦ "Scene Examination (Case Study Based)", NFPA, International Symposium on Fire Investigation, Fire Service College,
Moreton-in-Marsh, Gloucestershire, UK, June 28,2004.
♦ TireDynamics and Fire Science", NFPA, International Symposium onFire Investigation, Fire Service College, Moreton-in
Marsh, Gloucestershire UK, June 28,2004.
♦ "Highway Vehicle Event Data Record Symposium: State-of-the-Art ofPassenger Vehicle Accident Recorder Technology;
EDR Device Research and Validation; and EDR End-User and Accident Reconstruction," National Transportation Safety
Board; George Washington University, Virginia Campus, June3-4,2004.
♦ "2004 SAE World Congress", Detroit, Michigan; March 8-11,2004; "Force Response during Tire Tread Detachment Event"
♦ "2003 NFPA Fall Education Conference," Reno,Nevada; November 16-19,2003; Pre-Conference Seminars, November 14-
15,2003.
♦ "2003 Vehicle Fire, Arson &Explosion Investigation Training Program," (Live Burns - Testing) National Association ofFire
Investigators; Eastern Kentucky University, Richmond, KY; October 1-4, 2003.
♦ "2003 National Fire, Arson & Explosion Investigation Training Program," National Association of Fire Investigators;
Sarasota, Florida; August 11-15,2003.
♦ "Vehicle Dynamics &Simulation," Society ofAutomotive Engineers 2003 World Congress; Detroit Ml; March 5, 2003.
♦ "Vehicle Agressivity &Compatibility in Automotive Crashes," Society ofAutomotive Engineers 2003 World Congress;
Detroit, Ml; March 5,2003. .' - •
♦ "Engineering Safety Specifications: Designing for Safety," Society ofAutomotive Engineers 2003 World Congress, Detroit,
Ml, March 3-4,2003. (16 hours)
♦ "Accident Reconstruction," Society ofAutomotive Engineers 2003 World Congress; Detroit, Ml; March 4-5, 2003.
♦ "Side impact, Rear Impact &Rollover," Society ofAutomotive Engineers 2003 World Congress; Detroit, Ml; Mar. 3,2003.
♦ "2002 Vehicle Fire, Arson &Explosion Investigation &Technology Seminar," National Association ofFire Investigators
and Fire andSafety Engineering Technology; Eastern Kentucky University, Lexington, KY; September 30- October 2,
2002.
♦ "2002 National Seminar onFire Analysis Litigation," National Association ofFire Investigators and National Fire Protection
Agency; Sarasota, FL; August 15-16, 2002. (16 hrs)
♦ "2002 National Fire, Arson &Explosion Investigation Training Program," National Association ofFire Investigators and
National Fire Protection Agency; Sarasota, FL; August 12-14, 2002. (32 hrs)
♦ "A Fire Scene Analysis," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky; March 2002. (16
hrs)
♦ '"Engineering Dynamics Corporation-HVE-2D-EDCRASH Reconstruction Course," Terry Day-PDOF andDamage Profile of
Vehicle, Collision Deformation Classification, EDCRASH Input Data; CA State University Northridge; Burbank, CA; January
21-25,2002. (40 hrs)
♦ "Investigation ofMotor Vehicle Fires," Lee S.Cole. Peter Klaput Investigation ofmotor vehicle fires; Where and how did it
start; Hands-on investigation ofburned vehicles; Elements Necessary for a Fire; Loyola University, New Orleans, Louisiana;
December5-7,2001.
♦ "Hot Wheels 2001," Investigating Vehicle Fires; 15vehicles burned, investigation, methodology, ignition sources, fuel loads,
electrical failures, presentations for vehicles burned; Fire Investigation Association ofAlberta; Calgary, Alberta, Canada;
September 20-22,2001.
7/12/2007 Auto Fire& Safety Consultants, Inc. 6
18500 TrailsEnd Rd., Conroe, TX77385
Off: 281.362.0930 • Fax: 281.362.1329
Cam Cope, Curriculum Vitae
"NFPA 921 Structural and Vehicles," Live Vehicle Bum lAAI-Louisville Fire Department.
♦ "Post Impact Fuel Fed Fires," Tom DeSantis and Lou Molnar (Design Analysis Engineers atFord Motor Company); "Origin
and Cause on Vehicles Fires Utilizing NFPA 921,° Ralph Newell (Newell Investigation); "Electrical Fires in Components-
Vehicles," Chuck Adams (Design Analysis Engineer at Ford Motor Company); "Mechanical Fires - Fuel-Fed Fires -
Vehicles," John Washington and Sunil Sharma (Design Analysis Engineers atFord Motor Company); "Electrical System,"
Mark Hoffman (Ford Motor Company); "NFPA 921," David Smith; Live Vehicle Burn, Electrical Short in dash, Rammability
ofVehicle Fuels tested, Testing ofInterior Temperatures, Roof, Engine, Occupant and Truck in Vehicle Fires; Louisville,
Kentucky; August 22-24,2001.
♦ "Fire and Pattern Analysis," Patrick Kennedy; "Processing the Fire Scene - Diagramming Evidence and Note Taking,"
Dennis Smith; "Determining Origin-Heat and Flame Vector Analysis" and "Fire Scene Photography," Michael Schulz;
"Philosophy ofFire Analysis," Patrick Kennedy; "Electrical," Daniel Churchward; 2001 National Fire, Arson and Explosion
Investigation Training Program; Sarasota, Florida; July 22-27, 2001.
♦ "Texas Association ofLegal Investigators, 2001 Convention and Seminar," San Antonio, Texas; June 15-17,2001. (10 hrs
Continuing Education Credit).
♦ "Introduction to Explosives Theory and Explosion Devices," Tom Thurman, 2001 National Advanced Fire, Arson, and
Explosion Investigation Science and Technology Program; Eastern Kentucky University, Richmond, Kentucky; March 13-17,
2001. (8 hrs on-site explosion and fire investigation ofburning vehicles).
♦ "Fire Scene Analysis," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky; March 16,2001.
(8 hrs)
♦ "Analysis ofElectrical Fires Causes," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky;
March 15,2001. (8 hrs)
♦ "PC-Crash Program, 3D Accident Simulation and Reconstruction," William Cliff and Hermann Steffan, Detroit, Michigan;
March 8-9, 2001. (16 hrs)
♦ "Society ofAutomotive Engineers (SAE) Accident Reconstruction Conference," Detroit, Michigan; March 5-8,2001.
♦ "Certified Fire Investigator Instructor Program," Ron Hopkins, Fire and Safety Engineering Technology; Eastern Kentucky
University; March 2001. (8 hrs and examination)
♦ "Crash Data Retrieval Systems," Don Gilman, Vetronix Corporation, WREX2000; College Station, Texas; September 24-29,
2000.
♦ "Lamp Examination for ON orOFF in Traffic Accidents," Gary Stephens, WREX 2000I; College Station, Texas; September
24-29,2000.
♦ "Full Force / Weight Tests ofAir-Braked Trucks, Truck Tractor &Semi Trailer Compared to Automobiles," Dave Stopper,
WREX 2000; College Station, Texas; September 24-29,2000.
♦ "Trailer Undem'de; Conspicuity, Human Factors and Rear Bumpers," Joseph E. Badger, WREX 2000; College Station,
Texas; September 24-29,2000.
♦ "WREX 2000 World Reconstruction Exposition," Accident Reconstruction and Crash Testing; College Station, Texas;
September 24-29,2000. (36 credit hrs)
♦ "Demonstration ofCrush Deformation Measurement System and Current Validation ofthe EDCRASH Computer Program,"
Tom Curtis, WREX 2000; College Station, Texas; September 24-29,2000.
♦ "Airbags and Restraint Systems," ATLA Convention, Product Liability A.I.E.G.; Chicago, Illinois; July 31,2000.
7/12/2007 Auto Fire &Safety Consultants, Inc.
18500Trails End Rd.,Conroe, TX77385
Off: 281.362.0930* Fax: 281.362.1329
Cam Cope, Cum'culum Vitae
"The Dynamics of Fire Investigation" and "Fire Pattern Development and Fire Analysis," Patrick Kennedy /National Fire
Arson, and Explosion Investigation Training Program; Chicago, Illinois; July 24-28,2000.
"Chemistry of Fire-Properties ofMaterials" and "Fire Dynamics for Fire Investigation," Ron Hopkins /National Fire, Arson
and Explosion Investigation and Training Program; Chicago, Illinois; July 24-28, 2000.
"Basic Electricity and the Investigation of Electrical Fires" and "Cause Determination NFPA," Daniel Churchward and
Dennis Smith /National Fire, Arson, and Explosion investigation and Training Program; Chicago, Illinois; July 24-28,2000.
"Fire Cause and Origin," National Association of Fire Investigators; Chicago, Illinois; July 24-28, 2000.
Society ofAutomotive Engineers 21st Annual Section Officers Leadership Seminar, Pittsburgh, PA, May 20-23, 2000.
"Accident Reconstruction - State-of-the-Art," SAE-TOPTEC; "Frontal Collision Performance," Dagmar Jewkes, Ph.D •"Side-
Collision Performance," Greg D. Stephens; "Rear-Collision Performance &Rollover Reconstruction," Stein EHusher Costa
Mesa, CA; December 9-10,1999.
"AC.F.E. National Convention," Engineering and TechnologyAccident Reconstruction; New York City, New York; October
28-31,1999.
"Low Speed Accident Reconstruction and Litigation," Lawyers &Judges Convention; Scottsdale, AZ; October21-23,1999.
"Issues in Automotive Crashworthiness Litigation, Trial Evidentiary," A.I.E.G.; Scottsdale, AZ; September 23-25 1999
"Liability Issues," National NAL.I. Convention, New Orleans, Louisiana; June 3-5,1999.
♦
"TTLA's On-Line, Hands-on Investigation Research Workshop," Houston, Texas; April 29,1999.
♦ "GM Fuel System Integrity," A.I.E.G.; Atlanta, GA; April 15-17,1999.
♦
"Airbag Field Performance: An Engineer's Perspective," Jerome M. Kossar, A.I.E.G., Atlanta, GA; April 15-17,1999.
-♦
"Analysis and Investigation of Post-Accident Air Bag Systems," Bfll Rosenbluth ASA, A.I.E.G.; Atlanta, GA, April 15-17,
1999.
"Evolution ofthe Lock-for-the-Latch," Kendall Few; "Forensic Analysis ofSkip Lock," Alan Canton "Biomechanics and Injury
Cnteria ofChild and Adult Dummies," Dr. Tony Sances; "Motor Vehicle Glass," Patrick M. Ardis, A. I.E.G.; Atlanta GA April
15-17,1999. ' ' ^
"Vehicle Fires and Restraint Systems;" Atlanta, GA, April 15-17,1999.
"Auto FocusAIEG Airbags, Rollovers, Auto Fires, Inertia Release (Seat Belt Buckles)," San Francisco, CA October24-26,
199o.
"ACRE. National Convention," Engineering and Technology Accident Reconstruction, Naples, Florida; October 12-14,
"Facts &Mechanics for InjuryAnalysis-Pathologists," Patrick E. Besant-Matthews, M.D., TAARS Annual Meetinq- Laqo
Vista, Texas; June 25-27,1998. a
♦
"Mechanics ofVehicle Rollover," Richard J. Schleuter, P.E., TAARSAnnual Meeting;iago Vista, Texas; June 25-27,1998.
♦
"Texas Association ofAccident Reconstruction Specialists-Accident Reconstruction," Austin, Texas; June 25-27,1998
(additional seminars not listed since 93).
♦
"Occupant Protection," Society of Automotive Engineers - TOPTEC; Tempe, AZ; May 20-21,1998.
4 "Side Impact," Society ofAutomotive Engineers - TOPTEC; Tempe, AZ; May 18-19,1998.
7/12/2007 Auto Fire &Safety Consultants, Inc.
18500 Trails End Rd, Conroe, TX 77385
Off: 281.362.0930 • Fax: 281.362.1329
Cam Cope, Cum'culum Vitae
"Inertially Unlatching Seat Belt Buckles-Proving the Defect," Ben Hogan, Kendall Few and Dr. Tony Sances, AI.E.G.; San
Antonio, Texas; May 14-16,1998.
"Car Crashes and Occupant Injuries - Frontal Impact- Side Impact - Rollovers," Greg Stephens, Stein Husher and Ed
Moffatt, Association for the Advancement for Automotive Medicine; Tempe, AZ; April 16-17,1998.
♦
"Car Crash and Occupant Injuries: ATeam Approach to Crash Investigation," AAAM, Tempe, AZ; April 16-17,1998.
♦ "GM Technical on Airbags," SDM System Operation-Component Locations, Glenn C. Libby, Milford Training Center;
Houston, Texas; March 5,1998.
"AC.F.E. National Convention," American Board of Forensic Engineering and Technology; San Diego, CA; December 11-
13,1997.
"Technology and Performance of Airbags," David Biss, A.I.E.G.; Scottsdale, AZ; September 25-27,1997.
"Airbag Litigation," Larry Coben and Don Slavik, A.I.E.G.; Scottsdale, AZ; September 25-27,1997.
"Airbag Design and Performance," Society of Automotive Engineers - TOPTEC; Costa Mesa, CA; August 14-15,1997.
♦ "Evaluating and Preparing Vehicle Rollovers," Michael Kerensky, Texas Trial Lawyers Association; Houston, TX, February
i"tj i yyo
"Vehicle Restraint Systems and Airbags," Brent Carpenter, Texas Trial Lawyers Association; Houston, TX; Feb. 1-2,1996.
♦ "Vehicle Fuel Tank Integrity," Mick McBee, Texas Trial Lawyers Association; Houston, TX, February 1-2,1996.
"Litigates and Seatbacks," Todd Tracy, Texas Trial Lawyers Association; Houston, TX; February 1-2,1996.
"Motor Vehicle Crashworthiness Frontal Collisions: Safety Issues" and "Rollover Crashworthiness," Engineering
Demonstrations / Arndt and Associates / A.I.E.G.; Phoenix, AZ; October 29-30,1993.
National Association of Fire Investigation Schools (NAFI), Certification Program; Chicago, Illinois; 1990,1991,1992.
"Advanced Theories in Automotive Restraint Crashworthiness Cases," Donald H. Slavik, A.I.E.G.; Sonoma County, CA-
September26-27,1992.
"Fire and Explosion Investigation," John A. Kennedy, National Fire, Arson, and Explosion Investigation; Chicago, Illinois-
August 18-21,1992. ,
"Forensic Fire-Science and Technology Laboratory Training," NAFI, Kennedy and Associates; Chicago, IL; August 17,
♦ "Rear Seat Lap-Only Belt Litigation," Jeffery Burke, Ralph Hoar, Ben Kelly, A.I.E.G.; Dallas, Texas; April 25-26,1992.
♦ "Hands-on Reconstruction Techniques," Fred E. Arndt and Mark Arndt A.I.E.G.; Phoenix, AZ; October 11-12,1991.
♦ ."Computerized Reconstruction," Fred E. Arndt, A.I.E.G.; Phoenix, AZ; October 11-12,1991.
♦
"A Brief Review of Motor Vehicle Accident Reconstruction," RobertJ. Caldwell, P.E., A. I.E.G.; Phoenix, AZ; October 11-12
1991.
♦ "Occupant Restraint and Protection," Don Slavik, A.I.E.G.; Denver, Colorado; April 19-20,1991.
♦ "Advance Fire Pattern Analysis," Ron Hopkins, NAFI; Chicago, Illinois; August 8-10,1990.
"Human Factors and Safety Evaluation," Edward W. Karnes, Ph.D., ATVAdult Toys, A.I.E.G.; Phoenix, AZ; April 6-7,1990.
7/12/2007 Auto Fire &Safety Consultants, Inc.
18500Trails EndRd., Conroe, TX 77385
Off: 281.362.0930.Fax: 281.362.1329
Cam Cope, Cum'culum Vitae
♦ "Chemistry and Incendiary Devices," Rolfe Scofield PhD.; "Searching Diagramming and Evidence Collection at the Fire
Scene," Sgt. Gene Deck; "Fire Pattern Analysis," Patrick Kennedy, Ph.D., NAFI Seminar Chicago, Illinois; September9-11,
♦ "Photography In Fire, Arson and Explosion Investigation," Patrick Kennedy, PhD., NAFI Fire School; Chicaqo Illinois-
September 11,1987. '
♦ "Fire and Safety Engineering Technology," Ron Hopkins, Eastern Kentucky University; Richmond, Kentucky; September
1987.
♦ Sm AfS°n and Explosion Trainin9>" A.J. Scardino, Ph.D., and John Odom, P.E., NAFI; Chicago, Illinois; September17-19,
1986.
7/12/2007 Auto Fire& Safety Consultants, Inc. 10
18500 Trails End Rd., Conroe, TX 77385
Off: 281.362.0930*Fax: 281.362.1329
Auto Fire &
Safety Consul;
Report Relative to the Matter of
Daniel Sixta
AFSC # 07152
Prepared for:
Janet Koski
8708 Harney
Omaha, NE 68114
c/o Daniel Sixta
1143232
Neal Unit
9055 Spur 591
Amarillo, Texas 79107-9696'
Date of Accident:
02/21/02
Time of Accident:
10:59 PM
Location of Accident:
11000FM1960 West
Houston, Harris County, Texas
Auto Fire and Safety Consultants
18500 Trails End Rd.
Conroe, Texas 77385
281-362-0930
1.0 RECONSTRUCTION
The main objective of this accident reconstruction was to properly conduct a(n):
1. Collision Analysis,
2. Injury Analysis,
3. Accident Avoidance Analysis,
4. Injury Avoidance Analysis, and
5. Accident Causation Analysis.
With respect to my investigation relating to the vehicle dynamics utilizing accident reconstruction principals of the
accident in this case, my methodology consisted ofthefollowing: Ireviewed thefacts ofthecase which included scene
photographs, witness statements, accident report, documents, reconstruction thoughts and calculation. I then applied
my knowledge in accident investigation, which I have obtained in my many years of evaluating and reconstructing
accidents to detennine how the accident occurred and to evaluate the above listed objectives of accident
reconstruction.
The purpose of this investigation and analysis is to evaluate and determine if the above referenced accident was
scientifically and professionally conducted in fairness to all drivers and occupants of the vehicles involved. The
accident reconstruction should be able to discuss-how the accident occurred, determine the pre-impact, impact and
post impact speeds ofthe vehicles. The reconstruction should also discuss the changes in velocity (delta-V) which
assist in the evaluation ofthe injuries and the performance ofthe vehicles. The investigation should also evaluate and
discuss the possibilities ofevasive.action, driver's perception/reaction, timing and defensive driving.
The main objective ofaccident reconstruction especially in accidents that may involve civil orcriminal litigation is to
determine what happened immediately before, during and after the accident Established principles and scientific
methodology should be followed by the accident reconstruction professionals. This analysis and accident
reconstruction should have included thefollowing specific objectives ofaccident reconstruction:
1. Speed ofvehicles during pre-trip, trip, and post-trip phases totheaccident;
2. Motion ofthe ofthe vehicles during pre-trip, trip and post-trip phases oftheaccident;
3. Accident severity;
4. Vehicle deformation;
5. Accident scene geometry;
6. Potential avoidance scenarios;
7. Vehicle deceleration rates;
8. Driver actions including reaction time, perception and visibility; and
9. Contributing factors andcauses ofthe accident.
For this accident we were determining the traveling speed ofDaniel Sixta, the driver ofUnit 1/Toyota 4-Runner, and
the events that resulted in the death of Maratha Alford.
2.0 Materials Reviewed
The materials relied upon in reviewing this casearelisted in this section. In addition, my education, training, and
experience in accident reconstruction, the following sources ofinformation and activities were utilized to form my
observations and findings. Additional materials forming the basis of the undersigned opinions include many
documents reviewed and general literature, knowledge ofaccident reconstruction and products associated with
vehicles.
1. Accident Report prepared byOfficer D.T. Pearson, Harris CountySheriff Office;
2. Police Photographs ofUnit 1/1994 Toyota 4-Runner
3. Photographs of Unit 2/ 2001 Ford Focus SE
4. Photographs ofaccident scene provided by Harris County Sheriffs Office;
5. Trial testimony of:
a. Officer D.T. Pearson;
Applicable Standards, and Reference Materials
7. Forensic Aspects ofDriver Perception and Response, byPaul L. Olson;
8. Motor Vehicle Accident Reconstruction and Cause Analysis, 5ft Edition, by Rudolf Limped;
9. .LawEnforcement Guidelines;
10. Engineering Dynamics Corporation (EDC) related articles, publications, and research
associated with the Software;
11. All Data - service bulletins, etc.;
12. Society ofAutomotive Engineers publications;
13. ANSIstandards;
14. National Highway Transportation Safety Association (NHTSA) Technical Service Bulletins;
and,
15. Any. and all prior case documents, photographs, reports, evaluations, studies, exemplar
vehicles and designs.
During my career and as a part ofmy Training and Experience, 1have reviewed an extensive number of publications,
journals, manufacturer documents, depositions, test results, SAE publications and various other documents and
literature related tothe Reconstruction ofthe Accident. The list below is a small sample ofthe materials that have been
apart of mycareer in the area of motorvehicle accidents.
16. Vehicle Structure/Exterior and Chassis Theme Group;
17 Fundamentals of Vehicle Dynamics, Thomas D. Gillespie, SAE R-114;
18. Vehicular Accident Investigation and Reconstruction, Donald J. Van Kirk, CRC Press;
19. Vehicle Accident Analysis and Reconstruction Methods, Raymond M. Brach and R. Matthew
Brach,SAER-311;
20. SAE Accident Reconstruction Technology Collection on CD-ROM ARCD2004;
21. Automotive Vehicle Safety, byGeorge A. Peters and Barbara J. Peters;
22. Automotive Safety Handbook, byUlrich Seifferi and Lothar Wech, SAE R-325;
. 23. Highway Vehicles Safety Database onthe Worid Wide Web andCD-ROM;
24. Recent Developments in Automotive Safety Technology, by Daniel J. Holt, PT-119;
25. Texas Department ofPublic Safety Driver's Handbook;
26. Texas Law forLaw Enforcement Officers;
27. Texas Driving Procedures;
28. Physical Forces Affecting and Automobile in Motion;
29. Human Factors in Traffic Safety, byRobert E.Dewar andPaul L. Olson;
30. Forensic Aspects ofVision and Highway Safety by Merrill J. Allen, O.D., Ph.D., Bernard S.
Abrams, O.D., Arthur P. Ginsburg, Ph.D., and Leslie Weintraub, O.D.;
31. Accident Investigation Quarterly, Issue 40, Fall 2004;
FMVSS 207, Seating Systems;
32. Vehicle Crash Mechanics, by Matthew Huang, CRC Press, SAE;
33. NHTSA Defect Investigation Report, Sept. 14, 2000;
34. FMVSS Standard 208, Occupant Crash Protection; and,
35. Collision Performance, LM Safety Car, by Derwyn M. Seven/, SAE 670458;
36. "Rollover, Side and. Rear Impact," SP18800, SAE International, March 2004;
37. Tires, Suspension and Handling, SAE R-168 2nd Edition, Dixon.
1—I
Additional materials forming the basis of the undersigned opinions include materials on Fundamentals of Vehicle
Dynamics, knowledge and references in the field of accident reconstruction, and research associated with acts of
Other Similar Incidents (OSI's). These various materials have been incorporated into my research and experience
regarding this accident.
3.0 Scene
Aerial Photograph ofthesceneofaccident is an important partofthe reconstruction
4.0 Introduction and Review of Accident Report of Officer D.T. Pearson
This report represents an accident that occurred on 02/21/02, at approximately 10:59 PM at 11000 FM 1960 W.
Houston, Ham's County, Texas.
This accident occurred at night on aconcrete roadway. Weather conditions were cloudy. The posted speed limit was
45 mph.
Vehicle/Unit 1was a Green 1994 Toyota 4-Runner/ith VIN JT3VN29V9R0023232 and TX license plate number
02TXHN4428. This vehicle was driven by Daniel J. Sixta of 5903 Cape Hatteras Dr., Houston, Texas 77041. Daniel J.
Sixta's date of birth is listed as 09/09/60, and his/her TX driver's license number is 12056603. The owner of this
vehicle islisted as Daniel J. Sixta of5903 Cape Hatteras Dr., Houston, Texas 77041. This vehicle is herein referred to
as "Unit 1/1994Toyota 4-Runner".
Occupant's
Position Name Injury
Driver Daniel J. Sixta Non-incapacitating
Right Front Carolyn Haydel Possible Injury
Vehicle/Unit 2 was a 2001 Blue Ford Focus SE with VIN 1FAFP34P01WZ41205 and TX license plate number
02txl16pfp. This vehicle was driven by MartfiS Afford of 10730 Glennora #113, Houston, Texas 77065. Martha Alford's
date of birth is listed as 07/01/57, and his/her TX driver's license number is 09444841. The owner of this vehicle is
listed as Enterprise Rent a Car. This vehicle isherein referred to as "Unit 2/2001 Ford Focus SE".
Occupant's
Position Name Injury
Driver artha Afford Incapacitating injury
Right Front liiinda Coble Fatality
The accident report gives the narrative opinion of Investigating Officer D.T. Pearson asfollows:
"Unit 1 was traveling W/B on FM 1960 W in the middle lane and crossed the
intersection ofJones ona green light. Unit 2 was E/B in the left turn lane and made a
left turn in the path ofUnit 1. Unit 1braked prior to striking Unit 2 with FR and RP.
Unit 2states that she did not see Unit 1approaching"
4.0 Vehicle inspections
Unit 1/1994 Toyota 4-Runner side view
i I u
Unit 1/1994Toyota 4-Runner showing right front fender anddamage
showingoffset collision to passenger side not a direct frontal impact,
mostlikely indicating thatthe driver of this vehicle was steering to the left
as a possible evasiveaction. This vehicle shows little damageto the
drivers side ofthe vehicle.
•&
Unit 2/ 2001 Ford Focus SE passengerside impact,which
is important asto the crush damage and injury mechanism for
the passenger
5.0 Vehicle data information
The auto stats areattached tothis report for Unit 1/194Toyota 4-Runner and Unit 2/2001 Ford Focus SE.
6.0 Findings and Opinions
The following findings and opinions offered with regards tothis case arefrom the information available tome at the w
time this report is written. These opinions and finding also address some of the reconstruction methodology that^hay *
have been over looked or not discussed at trial and may have changed the result and opinions. \
1. Daniel Sixta, driver of Unit 1/1994 Toyota 4-Runner, was traveling at approximately 45-53 mph before
braking.
2. Police investigation indicates that the driver of Uifit 1/1994 Toyota 4-Runner braked. Prior to impact
3. Police investigation failetf to address the evasive action by Unit 1/1994 Toyota 4-Runner, this is based on
theactual damage toboth units.
4. Police investigation failed to address the speed ofUnit 2. (stopped and turned ordidn't stop and increased
speedtocrossin front of Unit Iratherthan wait)
5. Mr. Sixta experienced a Delta-V ofapproximately 22mph upon impact based on crush measurements and
computer simulations using EDCRASH and EDSMAC.
6. The police investigation only provided momentum calculations, which don't appear to account for crush or
damage to the vehicle.
7. Discussions related to non injuries in Unit 1 vs.deathin Unit 2.
8. Texas State defensive driving courses teach don't drink and drive but equally teach look before turning and
defensive driving.
9. Ismaximum punishment related tomaximum fault.?
10. Martha Alford, the driver ofUnit 2/ 2001 Ford Focus SE, experienced a Delta-V of approximately 30mph
upon impact.
'11. Martha Alford, the driver of Unit 2/ 2001 Ford Focus SE failed to yield right of way to east bound traffic.
(Investigating officer indicated the driver ofUnit 212001 Ford Focus SEwas in the middle lane making a left
turn, this should have been addressed)
12. The driver of Unit 212001 Ford Focus SE stated to investigating officers that she never saw Unit 1/1994
Toyota 4-Runnerthe oncoming east boundtraffic.
13. No evidence was presented ordiscussed related tofailure to yield right away, of Unit 212001 Ford Focus
SE.
14. No evidence was presented or discussed related to noevasive action by Unit 2/2001 Ford Focus SE. (no
braking orsteering was determined)
15. No discussion were provided or reviewed that showed evidence that any vehicle traveling with the flow of
traffic in the east bound lanes would have beencapable of avoiding this accident.
16. Facts remain in our profession that certain levels ofalcohol in thehuman system areillegal when operating a
motor vehicle. Theeffects ofalcohol on the drivers andpassengers ofmotor vehicles should be evaluated to
determine theresponsibility ofall parties and products. What input did the passenger have in the accident
or avoidance of the accident.?
* 17. Driver ofUnit 2/2001 Ford Focus SE failed to keep a proper look out. ( never saw Unit 1/1994 Toyota 4-
Runner, yetno visibility factors were discussed)
18. A reasonable and prudent driver with a reaction time of approximately 1.5 seconds would most likely not
have been able to avoid the impact to Martha Alford's vehicle.
19. It is my opinion that not only momentum calculations were conducted by investigating officers and should
have been used in conjunction with crush measurements and accurately and fairly determining the speeds
and Delta-Vs (changeof velocity) for the accident.
20. It is my opinion that the weather and road conditions at the approximate time of the accident should have
beenconsidered when calculating the co-efficient offriction.
21. The type ofvehicle, road surface (wet for example) andlocation should beconsidered.
22. It is also my opinion that the integrity and structure of Unit 21 2001 Ford Focus SE should have been
evaluated and made a part ofthe reconstruction to better evaluation ofthe injury mechanisms and assist in
properly determining responsibility for injuries associated with the accident.
23. Unit 2/2001 Ford Focus SEwas not equipped with adequate side impact protection orside airbags that are
available onsimilar sizedand yearvehicles.
• 24. It is also my opinion that a jury trial without an Accident Reconstruction professional is highly unfair and
would be almost impossible for anyaccused driver to receive a fair trial.
25. Should have hired an attorney and an accident reconstruction professional in serious accidents.
26. State should have provided funds for accident reconstruction professional.
27. Accident Reconstruction professionals should be able to address and discuss other similar instances in the
evaluation ofsuch accidents. (Example: DPS Trooper impacts theside ofa vehicle that was crossing two
lanes oftravel, as in Mr. Sixta's case, and itwas determined that the DPS Trooper did nothing wrong. Fault
was placed on the other vehicle that failed to yield the right of way, failed to keep a proper look out, and
failed to make a proper stop. The Reconstructionist was able toscientifically determine that the DPS vehicle
was traveling 20 mph over thespeed limit, andfailed to display his lights, which resulted in the death ofone
of the individuals in the vehicle that had the side impact.)
This expert has worked for the plaintiff, defense and prosecutor in various cases, and has the opinion that a
Reconstruction isimportant aswell as competent legal representation in any case involving accidents.
Please note that these are my opinions atthe writing of this report and are based on the current sources of information
and that Ianticipate and reserve the right to respond to those who might request further clarification of my opinions
regarding the event or parties involved in the event. I also reserve the right to reexamine and alter these opinions
. should new or additional information be provided or discovered during the course of the case through discovery,
deposition, or any other form of information retrieval. Lastly, I reserve the right to correct any typographical errors,
grammatical errors ormistakes detemiined during the evaluation, deposition or review ofthis report by the expert or
other involved parties.
With respect to my investigation relating to the vehicle dynamics utilizing accident reconstruction principals of the
accident in this case, my methodology consisted ofthe following: Ireviewed the facts ofthe case which included scene
photographs, witness statements, accident report, documents, reconstruction thoughts and calculation. I then applied
my knowledge in accjdent investigation, which I have obtained in my many years ofevaluating and reconstructing
accidents to determine how the accident occurred and to evaluate the above listed objectives of accident
reconstruction. I have also used Engineering Dynamics Corporation (EDC) software, with the aid of an on staff
engineer, which includes, HVE, EDCRASH, EDSMAC and SIMON. The HVE simulation environment was introduced in
1996, for the 3-D user, with the 2-D simulations dating back to the 1980's and early 1990's. The 3-D, 5.0 version was
developed as a sophisticated, 3-dimensional user environment for setting up and executing simulations involving
humans and vehicles interacting with their environment. In 2001, SIMON along with DyMESH was introduced to
provide simulation involving rollover and override, as well as other 3-dimensional collision issues. The HVE programs
have been widely accepted by the Accident Reconstruction profession and has been widely published and peer
reviewed. This program was used toformulate other plausible scenarios based on the evidence madeavailable.
This report is based on my investigation as detailed in the above-referenced case. This report may be modified or
amended as new information is gathered, learned, orproduced, regarding theabove-referenced case.
Sincerely yours,
Cam Cope, CFEI, CFII, CVFI Aaron Zeamer, CVFI, CFEI
President Fire Investigator
Auto Fire &Safety Consultants, Inc. Auto Fire &Safety Consultants, Inc
Dba Cam Cope Consulting Dba Cam Cope Consulting
CC/sr
Attachment CV .
,"'; EXPERT AUTOSTATS ." •;
'''—'" Vex. 4:4.1w W
Copyright 2004 - All Rights Reserved
AUTO FIRE & SAFETY CONSULTANTS
12066 CLARK LANE
CONROE TX 77385
07-11-2007
1994 TOYOTA 4RUNNER (L4) 2DR 4X4 UTILITY
CURB WEIGHT: 3785 lbs 1717 kg,
Curb Weight Distribution - Front: 54 % Rear: 46 %
Gross Vehicle Weight Rating: 5350 lbs. 2427 kg.
Number of Tires on Vehicle:
Drive Wheels: 4 Wheel Drive
HORIZONTAL DIMENSIONS
Inches Feet Meters
Total Length 176 14.67 4.47
Wheelbase: 103 8.58 2.62
Front Bumper to Front Axle 30 2.50 0.76
Front Bumper to Front of Front Well 9 0.75 0.23
Front Bumper to Front of Hood 3 0.25 0.08
Front Bumper to Base of Windshield 46 3.83 1.17
Front Bumper to Top of Windshield 68 5.67 1.73
Rear Bumper to Rear Axle 43 3.58 1.09
Rear Bumper to Rear of Rear Well 27 2.25 0.69
Rear Bumper to Rear of Trunk 5 0.42 0.13
Rear Bumper to Base of Rear Window 6 0.50 0.15
WIDTH DIMENSIONS
Maximum Width 67 5.58 1.70
Front Track " 5.9 4.9.2 1.50
Rear Track 59 4.92 1.50
VERTICAL DIMENSIONS
nches Feet Meters
Height 67 5.58 1.70
Ground to:
Front Bumper (Top) 30 2.50 0.76
Headlight - center 35 2 .92 0.89
Hood - top front 40 3'. 33 1.02
Base of windshield 49 4.08 1.24
Rear Bumper - top 24 2.00 0.61
Trunk - top rear
Base of rear window 47 ~3\92 T\19 .
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101
f~) EXPERT AUTOSTATS Pg.2
1994 TOYOTA 4RUNNER (L4) 2DR 4X4 UTILITY
INTERIOR DIMENSIONS
Inches Feet Meters
Front Seat Shoulder Width 54 4.50 1.37
Front Seat to Headliner 39 3.25 0.99
Front Leg - seatback to floor (max) 42 3.50 1.07
Rear Seat Shoulder Width 54 4.50 1.37
Rear Seat to Headliner • 38 3.17 0.97
Rear Leg - seatback to floor (min) 32 2.67 0.81
Seatbelts: 3pt - front and rear'
Airbags: NO AIRBAGS
STEERING DATA
Turning Circle (Diameter) 444 37.00 11.28
Steering Ratio: 17.50:1
Wheel Radius: 13 1.08 0.33
Tire Size (OEM) 225-75R15
ACCELERATION & BRAKING INFORMATION
Brake Type: FRONT DISC - REAR DRUM
ABS System: ABS UNKNOWN
Braking, 60 mph -> 0 (Hard pedal, no skid, dry pavement)
d = 138 ft t = 3.1 sec a =-28.0 ft/sec/sec G-force = -0.87
ACCELERATION:
0->30 mph t = 3.2 sec. a = 13.7 ft/sec/sec G-force = 0.43
0->60 mph t = 9.6 sec. a = 9.2 ft/sec/sec G-force = 0.28'
45->65 mph t = 4.8 sec. a = ,6.1 ft/sec/sec G-force = 0.19
Transmission Type: 5spd MANUAL
NOTES:
Federal Bumper Standard Requirements = NO REQUIREMENT
This vehicles Rated Bumper Strength: 5 mph
N.S.D.C. = 1990 - 1995
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101
EXPERT AUTOSTATS Pg.3
1994 TOYOTA 4RUNNER (L4) 2DR 4X4 UTILITY
OTHER INFORMATION
TIP-OVER STABILITY RATIO = 1.10 REASONABLY STABLE
NHTSA Star Rating (calculated)
CENTER OF GRAVITY (No Load):
Inches behind front axle = 47.38
Inches in front of rear axle = 55.62
Inches from side of vehicle = 33.50
Inches from ground ' = 26.73
Inches from front corner = 84.32
Inches from rear corner = 104.15
Inches from front bumper = 77.38
Inches from rear bumper =98.62
MOMENTS OF INERTIA APPROXIMATIONS (No Load):
YAW MOMENT OF INERTIA >555.55 lb-ft-sec~2
PITCH MOMENT OF INERTIA '582.20 lb-ft-secA2
ROLL MOMENT OF INERTIA 597.70 lb-ft-sec~2
FRONT PROFILE INFORMATION
ANGLE FRONT BUMPER TO HOOD FRONT = 73.3 deg
ANGLE FRONT OF HOOD TO WINDSHIELD BASE = 11.8 deg
ANGLE FRONT OF HOOD TO WINDSHIELD TOP = 21.0 deg
ANGLE OF WINDSHIELD = 36.0 deg
ANGLE OF STEERING TIRES AT MAX TURN = 26.6 deg
FIRST APPROXIMATION CRUSH FACTORS:
Speed Equivalent (mph) of Kinetic Energy (KE) used in
causing crush or indentation may be evaluated using the
following formula, the appropriate Crush Factor (CF), and
Maximum Indentation Depth (MID)., in feet:
V(mph) = Sqr root of (30 * CF * MID)
KE Equivalent Speed (Front/Rear/Side) = 21 CF
Bullet vehicle IMPACT SPEED estimation
based on TARGET VEHICLE damage ONLY 27 CF
(Tested for Rear/Side Impact only)
These CF.values are based upon analysis of NHTSA Barrier Crash
data, and from over 1000 vehicle accidents where independant
evaluation of speed was possible. (These are NOT 'A' •B\ . 'C*,
or *G' values)
The Rear Impact data with more than 2-3 inches of crush damage
should be looked at carefully,, since some vehicles have very weak
trunk & fender strength. Therefore, on some cars, esp. GM, your
estimate from the rear crush data may be high by as much as 4-5
mph (on a crush of 18 inches).
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101
<^J EXPERT AUTOSTATS ."*•.
K~T' Ve'r. 4:4.1w >—i
Copyright 2004 - All Rights Reserved
AUTO FIRE & SAFETY CONSULTANTS
12066 CLARK LANE
CONROE TX 77385
07-11-2007
2001 FORD FOCUS 4DR SEDAN
CURB WEIGHT: 2564 lbs 1163 kg.
Curb Weight Distribution - Front: 6C % Rear: 40 %
Gross Vehicle Weight Rating: 3550 lbs 1610 kg.
Number of Tires on Vehicle: 4
Drive Wheels: FRONT
HORIZONTAL DIMENSIONS
Inches Feet Meters
Total Length 175 14.58 4.44
Wheelbase: 103 8.58 2.62
Front Bumper to Front Axle 35 2.92 0.89
Front Bumper to Front of Front Well 20 1.67 0.51
Front Bumper to Front of Hood 5. 0.42 0.13
Front Bumper to Base of Windshield 43 3.58 1.09
Front Bumper to Top of Windshield 74 6.17 1.88
Rear Bumper to Rear Axle 37 3.08 0.94
Rear Bumper to Rear of Rear Well 23 1.92 0.58
Rear Bumper to Rear of Trunk 5 0.42 0.13
Rear Bumper to Base of Rear Window 20 1.67 0.51
WIDTH DIMENSIONS
Maximum Width 67 5.58 1.70
Front Track ' 59 4.92 1.50
Rear Track 59 4.92 1. 50
VERTICAL DIMENSIONS
Inches Feet Meters
Height 56 .4.67 1.42
Ground to:
Front Bumper (Top) 22 1.83 0.56
Headlight - center 27 •• 2.25 0.69
Hood - top front 2 6 2.17 0.66
Base of windshield 38 3.17 0.97
Rear Bumper - top 28 2.33 0.71
Trunk - top rear 44 3.67 1.12
Base of rear window 45 3.75 1.14
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101
•,'"\ EXPERT AUTOSTATS .-''", Pg.2
I ' 2001 FORD FOCUS 4DR SEDAN
• INTERIOR DIMENSIONS
Inches Feet Meters
Front Seat Shoulder Width 54 4.50 1.37
Front Seat to Headliner 39 3.25 0.99
Front Leg - seatback to floor (max) 43 3.58 1.09
Rear Seat Shoulder Width 54 4.50 1.37
Rear Seat to Headliner 39 3.25 0.99
Rear Leg - seatback to floor (min) 38 3.17 . 0.97
Seatbelts: 3pt - front and rear
Airbags: FRONT SEAT AIRBAGS ,
STEERING DATA
Turning Circle (Diameter) 432 36.00 10 97
Steering Ratio: 16.00:1
Wheel Radius: H 0 92 n 9«
Tire Size (OEM): P195/60R15 '
ACCELERATION & BRAKING INFORMATION
Brake Type: FRONT DISC - REAR DRUM
ABS System: ALL WHEEL ABS - OPTIONAL
Braking 60 mph -> 0 (Hard pedal, no skid, dry pavement):
•d - 130 ft t = 3.0 sec. a =-29.7 ft/sec/sec G-force = -0.92
ACCELERATION:
n'lln mP? 5 = H SeC/ a = 15'7 ^/sec/sec .G-force = 0.49
0->60 mph t = 9.3 sec. a = 9.5 ft/sec/sec G-force = 0.29'
45->65 mph t= 5.2 sec. a «. 5.6 ft/sec/sec G-force = o!18
Transmission Type: 5spd MANUAL
NOTES:
Federal Bumper Standard Requirements = 2.5 MPH
This vehicles Rated Bumper Strength: 2.5 mph
N.S.D.C. = 2000 - 2004
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:.04R-010716AQ04101
i /'
EXPERT AUTOSTATS Pg.3
2001 FORD FOCUS 4DR SEDAN
' OTHER INFORMATION
TIP-OVER STABILITY RATIO = 1 34 STABL
NHTSA Star Rating (calculated) •fr •*" ~k -k
CENTER OF GRAVITY (No Load):
Inches behind front axle 41 .20
Inches in front of rear axle = 61 .80
Inches from side of vehicle = 33 .50
Inches from ground = 21 98
Inches from front corner = 83 24
/ Inches from rear corner = 104. 32
Inches from front bumper = 76. 20
Inches from rear bumper = 98. 80
MOMENTS OF INERTIA APPROXIMATIONS (No Load)
YAW MOMENT OF INERTIA 1434.92 lb-ft-sec/N2
PITCH MOMENT OF INERTIA 1389.36 lb-ft-secA2
ROLL MOMENT'OF INERTIA 311.52. lb-ft-secA2
FRONT PROFILE INFORMATION .
ANGLE FRONT BUMPER TO HOOD FRONT 38.7 deg
ANGLE FRONT OF HOOD TO WINDSHIELD BASE 17.5 deg
ANGLE FRONT OF HOOD TO WINDSHIELD TOP 22.1 deg
ANGLE OF WINDSHIELD 27.3 deg
ANGLE OF STEERING TIRES AT MAX TURN 27.3 deg
FIRST APPROXIMATION CRUSH FACTORS:
Speed Equivalent (mph) of Kinetic Energy (KE) used in
causing crush or indentation may be evaluated using the
following formula, the appropriate Crush Factor (CF), and
Maximum Indentation Depth (MID), in feet:
V(mph) = Sqr root of (30 * CF * MID)
KE Equivalent Speed (Front/Rear/Side) = 21 CF
Bullet vehicle IMPACT SPEED estimation
based on TARGET VEHICLE damage ONLY 27 CF
(Tested for Rear/Side Impact only)
These CF values are based upon analysis of NHTSA Barrier Crash
data, and from over 1000 vehicle accidents where independant
evaluation of speed was possible (These are NOT 'A', 'B'
or 'G' values)
The Rear Impact data with more than 2-3 inches of crush damage
should be looked at carefully, since some vehicles have very weak
trunk & fender strength. Therefore, on some cars, esp. GM, your
estimate from the rear crush data may be high by as much as 4-5
mph (on a crush of 18 inches).
Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101
Auto Fire &
Safety Consultants
Cam Cope Expert Testimony
♦ 03-22236; Artemio Ceballos Salinas, et al v.Ace Transportation, et al; 12th Judicial District Court of
Walker County, Texas; October15,2007; Trial
♦ 75988D; Drusilla M. Boudreaux, et al v. Gonzales Tire Co., Inc.; In the 23rd Judicial District Court of
Ascension Parish, LA; October 3,2007; Trial
♦" Debbie Hunter, et al v. Ford Motor Co., Inc.; In the 170th Judicial District Court of McLennan
County, Texas, August 28, 2007, Deposition
♦ Cause No. 06-C-285; Floyd Screws v. Hughes Springs ISD; In the 5th Judicial District Court of
Cass County, Texas, August 16,2007, Deposition
♦ Cause No..6275 &6276; The State of Texas v. Rusty Horton, In the Judicial District Court of
Sabine County, Texas, June 25-29,2007, Trial
♦ Cause No. 32,910; Donnisia Brown and Benjamin Brown v. Wal-Mart Stores, Inc and Paul
Johnson; In the 149th Judicial District Court of Brazoria County, Texas, May 8-9, 2007, Trial
♦ Civil Action No. 50200938; Jack Dotterer, etal v. Whirlpool Corporation, etai; In the Circuit Court
for Montgomery County, Tennessee at Clarkesville, Tennessee, February 12-13, 2007, Deposition
♦ 2006-04168; Connie Mosier, Individually, Gary Mosier, Individually, and as the sole heirs of
Christopher Mosier, and on behalf of the Estate of Christopher Mosier v. John Michael Reed,
Individually and J.M. Reed Plumbing Co., Inc.; In the 234th Judicial District Court, Harris County!
Texas, February 16,2007, Deposition
Ca—)Cope Expert Testimony Q
♦ 5020049; Kiefer, et al v. Whirlpool Corporation, et al; Montgomery County, Tennessee February
12 and 13,2007, Deposition
♦ 35539; Ronald Ocmand and Cynthia Ocmand vs. General Motors Corp., et al; Division A- 18th
JDC, for the Parish of West Baton Rouge, Louisiana, December 6, 2006, Deposition
♦ 01 -CV-288; Donald Oelke v. Rosemurgy Motors, et al; Marathon County, Wisconsin, November 16
2006, Trial
4 N. 862449; Liem Xuan Pham v. Evelyn Hall and AldJne Independent School District, In the County
Civil Court atLaw No. 1, Harris County, Texas, November 13, 2006, Trial
♦ Debbie Hunter, et al v. Ford Motor Co., Inc.; In the 170th Judicial District Court of McLennan
County, Texas, October 10,2006, Deposition
♦ No. 10,887; Cheryl Pearson, Individually and as the Representative of the Estate of Christopher
Pearson, Deceased and Carol Fleenor, Individually and as Guardian on Behalf of Jonathan
Pearson and Joseph Pearson, Minors v. Mack Trucks, Inc., McNeilus Truck Manufacturing
September 27,2006, Deposition
♦ Cause No. 75998D; Drusilia M. Boudreaux, Individually and on Behalf of her Minor Child, Donavan
Lance Mapes and Matthew Adams Mapes v. Gonzales Tire Company, Inc., Michelin North
America, Inc., DBA Michelin Americas Small Tires; Mitsubishi Motors North American, Inc., and
Dale Thomas; In the 23^ Judicial District Court for the Parish of Ascension, State of Louisiana
Division D; July 6, 2006, Deposition
♦ Cause No. DV05-02945-A; Marcella Pesina-Narvaez, et al v. Uniroyal Goodrich Tire Company, et
al; In the A-U*1 Judicial District of Court of Dallas County, Texas; June 22, 2006, Deposition
♦ State of Texas v. Robert D. Clough; Judge Michael. May, 410th Judicial District Court of
Montgomery County, Texas; May 22,2006, Trial
♦ Cause No, 5-05CV0105-C; Diaz, Mendy, Individually and as Next Friend of Emilio Vasquez, Cody
Vasquez and Destiny Diaz, Minor Children v. Continental Tire North America, Inc.; In the United
States District Court for the Northern District ofTexas, Lubbock Division; May 9, 2006, Deposition
♦ Cause No. 2005-17546; Raleigh L Woodard and Beatrice Collins v. Ford Motor Company and
Texas.Instruments, Inc; In the'55th Judicial District Court; Harris County, Texas; February 23,
2006, Deposition
♦ Cause No. D-173,795; Margaret Piatt Thorne, Individually and as Independent Executrix of the
Estate of Martha Merrill Piatt, Deceased and Clyde Piatt, Individually v. Parigi &Messina, Ltd.; In
the 136th Judicial District Court of Jefferson County, Texas; February 21,2006, Deposition '
♦ Cause No. 1:03CV592M; Shelter Insurance Company, et al. v. Mercedes Bern, USA; United
States District Court, Northern District of Mississippi; February 7-8,2006, Trial
10/22/2007 Auto Fire &Safety Consultants, Inc. • 2
Cafrrtope Expert Testimony —
♦ Cause No. 345,460; In Re: Estate of William Thomas Gorden, Deceased; In the Probate Court
Number Three, Harris County, Texas; January 31, 2006, Deposition
♦ CV No. 04-1715; Thomas Fielder, et al v, Graco Children's Products, Inc; Judge Melancon-
Magistrate Judge Hill; United States District Court Western District of Louisiana, Lafayette-
Opelousas Division; January 16,2006, Deposition
♦ Cause No. 03-60929-4; Shirley Watson, et al v. Leon Zimmerman; Law Number Four Nueces
County, Texas; December 13-14, 2005, Trial '
♦ Cause No. 2003-38188; Richard Fielder, et al v. Cernex, Houston Shell, et al., 281** Judicial District
Court of Ham's County, Texas; December 9,2005, Deposition
♦ Cause No. 04-07-05973-CR; State of Texas v. Charles Crawford; 284th Judicial District Court of
Montgomery County, Texas; December 1, 2005, Trial
♦ Estate ofAlvaro Zamorano; November 8, 2005, Deposition
♦ Cause No. 03CV0006; Molly Fitzgerald, as Representative of Minors Cassidy Ann Sandoval
Austin Sandoval, Patrick Sandoval, Heirs of Marcus Sandoval, et al. v. Sun Builders, et al; In the
405th Judicial District Court, Galveston County, Texas; October 19,2005, Deposition
♦ Cause No. CV67500; Anthony Blake, Individually and As Heir to Andrea Blake, Deceased v.
Daimler-Chrysler, 333rd District Court of Harris County, Texas; July 25, 2005, Deposition
♦ Civil Action No. CV04-1144; Shawn Douglas and Paige Brown v. General Motors Corporation- Julv
22,2005, Deposition ' y
♦ Cause No. 2004-202; David Lea Reid, Plaintiff v. Daphne Allen, as Personal Representative of the
Estate ofJaicey Lynn Roberson Deceased, Defendant in the District Court of Rusk County Texas
4th Judicial District; July 20,2005, Trial
♦ Cause No. 198,121-C; Rachelle Chronister, Individually and on behalf of the Estate of Kathy
Johnson, Deceased, Plaintiffs, v. Ford Motor Company and Cleo Bay, Ltd. D/B/A Cleo Bay Used
Cars, Defendants; July 18,2005, Deposition.
♦ Cause No. 1:03CV592M; Shelter Insurance Company, et al. v. Mercedes Benz, USA; United
States District Court, Northern District of Mississippi; May 26, 2005, Deposition
♦ Cause No. 153-199296-03; Judith McFarland, Individually and on behalf of the Estate of Katy
McFarland, Deceased, v. Volvo Cars of North America, Inc., AB Volvo, Volvo Car Corporation and
Juan Pantoja, Jr.; April 26, 2005, Deposition
10/22/2007 Auto Fire &Safety Consultants, Inc.
Car^Cope Expert Testimony u^
♦ Cause No. 03-L-2027; Dora Mae Jablonski and John LJablonski, Jr., as Special Administrator and
Personal Representative of the Estate of John LJablonski, Sr., Plaintiffs, v. Ford Motor Company
and Natalie S. Ingram, Defendants; April 11,2005, Trial by Jury, Jury Verdict in favor of Plaintiff
♦ Cause No. 2002-225.2; Elizabeth Lopez, Individual/y and On Behalf of Claudia Itzel Garcia, Ximena
Lizbeth Garcia, And Yusemi Garcia, Minors, And on Behalf of the ESTATE of Gustavo Garcia
Deceased, Plaintiffs vs. Stoneridge, Inc. Thomas G. Loeffler, Nancy Ann Loeffler, in the 327th
Judicial District Court of El Paso County, Texas; April, 8, 2005, Deposition
♦ Cause No. 03-L-2027; Dora Mae Jablonski and John L Jablonski, Jr., as Special Administrator and
Personal Representative of the Estate of John L Jablonski, Sr., Plaintiffs, v. Ford Motor Company
and Natalie S. Ingram, Defendants; March 24,2005, Second Deposition
♦ Cause No. C2003388; Maria Salas, et al., as heir to Obdulio Hernandez, Deceased v. General
Motors Corporation, and Durant Chevrolet, Inc.; February 3, 2005, Deposition
♦ Cause No. 03-05-16687-CV; Ruth Jeannette Moody, et al v. Hankook Tire America Corp., Hearne
I.S.D., et al; January 7,2005, Deposition
♦ Cause No. 03-1294-JTM; David LDoonan,et al v. General Motors Corporation; District of Kansas-
December 14,2004, Deposition
♦ Cause No. A-115,158; Rosario Fatima Salgado and Leticia Salgado Rojo, individually and as next
friend of Socorro Ashley Salgado, a minor v. Ford Motor Company, et al.; 70th Judicial District of
Ector County, Texas; October 20,2004, Deposition
.♦ Cause No. 2002-46146; Etna Lopez Garcia in the Estate ofMariano Juarez Garcia, etal v. Charles
Anderson; September 7,2004, Deposition
♦ Cause No. 16082JG0. Dawn Winters v. Barbara Tribble, in the 239th Judicial District Court
Brazoria County, Texas; August 17-18,2004, Trial
♦ Cause No. 03-L-2027; Dora Mae Jablonski and John L Jablonski, Jr., as Special Administrator and
Personal Representative of the Estate of John L Jablonski, Sr., Plaintiffs, v. Ford Motor Company
and Natalie S. Ingram, Defendants; August 10, 2004, Deposition
♦ Cause No. 20311-RM02; Jean Meyerson v. Key Energy Services, Inc.; District Court, Brazoria
County, Texas, 149th Judicial District; August 5,2004, Trial
♦ Cause No. 20311-RM02; Jean Meyerson v. Key Energy Services, Inc.; District Court, Brazoria
County, Texas, 149th Judicial District; June 22, 2004, Deposition
♦ Cause No. 2001-02048; Lorenzo Vargas Ramirez v. Mega Interest, Inc., doing business as Jet
Wrecker Service and William Mark Sheppard, in the 55th Judicial District, Harris County Texas-
April 24, 2004, Trial '
10/22/2007 Auto Fire &Safety Consultants, inc.
Ca^Cope Expert Testimony ^
♦ Cause No. C-2371-03D; Daniel Villareal &Georgina Villareal v. Eliodoro Tellez and Chico Trucking
Co, Inc., District Court of Hidalgo County, Texas, 206th Judicial District; April 21,2004, Deposition
♦ Cause No. A-02-CA-720-SS; Juan Arguello, et al v. General Motors Corporation, in the Western
District of Texas, Austin Division; March 4, 2004, Deposition
♦ Cause No. 2003; Xuan T. Vu and MTNV, Inc. v. Quan Van Pham d/b/a C.E. King Super Market, in
the 280th Judicial District Court of Harris County, Texas; February 9,2004, Deposition
♦ Cause No. 2002-4829. Darreil Pettefer v. Progressive Security. Parish of Calcasieu, 14th Judicial
District, Louisiana; January 14,2004, Trial
♦ Cause No. 16082JG0. Dawn Winters v. Barbara Tribble, In the 239th Judicial District Court
Brazoria County, Texas; December 15,2003, Deposition
♦ Cause. No 03-00626-B; Andrea Aguilar and Rueben Barcena as Representatives of the Estate of
Marcelo Barcena Aguilar, deceased v. Michael V. Higdon and Dr. Pepper Bottling Company, 1992
Pontiac Dallas County, Texas, 44th Judicial District; November 26, 2003, Deposition
♦ Cause No.: 01-CV-828. Donald v. Oelke v.-Ford Motor Company, et al. Circuit Court Branch III
Marathon County, Wisconsin; November 21, 2003, Deposition
♦ Cause No. 2002-4829. Darreil Pettefer v. Progressive Security. Parish of Calcasieu, 14th Judicial
District, Louisiana; October 27,2003, Deposition
♦ Cause No. 2001 -371 -CV; Manuel &Bema Sena Individually and as Guardians/Conservators of the
person and Estate ofRomain Sena v. Arnold L Jacquez, et al. Santa Fe, New Mexico; October
22,2003, Deposition
♦ Cause No. 14,967; Lanita Harmes and Jason Kyle Endhott v. Michael Scott Milter. District Court
Lampasas County, Texas; August 25,2003, Deposition
♦ Cause No. 01-05823; Randy E. Kenner, and Cindy Kenner v. Chrysler Motors Corp, et al. 192nd
District Court, Dallas County, Texas; May 21,2003, Deposition
♦ Heloise Medine v.. General Motor, St. Bernard Parish, Louisiana; March 24,2003, Deposition
♦ Cause No. 2001-02048; Lorenzo Vargas Ramirez v. Mega Interest, Inc, doing business as Jet
Wrecker Service and William Mark Sheppard, in the 55th Judicial District, Harris County, Texas-
February 27,2003, Deposition
♦ Bagwell; January 27, 2003, Deposition
♦ Horacio Orozco, et al v. Park Village/Partners, LP. et al.; January 14,2003, Deposition
10/22/2007 Auto Fire &Safety Consultants, Inc.
CawCope Expert Testimony ^
♦. Cause No. 2001-CVE-000391-D1, 49* District Court of Webb County, Texas. Candido Arreola
Virginia Arreola, Delia Sanchez, Jorge Meza and Norma Coria and Benjamin Guijosa Garcia
Individually and on behalf of Ruth Guijosa Coria, Deceased v. Mauricio Juarez and Montemavo'r
Trucking, Inc, October, 31, 2002, Deposition
♦ Cause No. 3-01-0232; U.S. District Court for the Middle District of Tennessee; Dianne Coggins
Guardian and Next Friend of Lindsey Garretson v, KLLM, Inc, KLLM Transport Services Inc and
Vernon Sawyer Transportation; September 18,2002, Deposition
♦ Cause No. A-000200-C, Teresa Kovatch v. West Orange Grove I.S.D. and Rickey Allen Ryan
244* Judicial District Court of Ector County, Texas; June 28, 2002, Deposition
♦ Cause No. A-165,158 in the 58th District Court of Jefferson County, Texas, Howard Pete v. David
Wilson, James Thorpe d/b/a J&L Transportation; June 24, 2002, Deposition
♦ B&D Trucking, Inc. v. Brian J. Goodman for the law firm of Rose Walker, Dallas, Texas- April 29
2002, Deposition
♦ Cause No. 2000-48432; Homer Douglas Brown, Jr., Individually and as Next Friend of Ruby
Brown, Deceased, and in his Representative Capacity as Administrator of the Estate of Ruby
Brown, Deceased vs. Nathaniel Tramaine Bans, Frank Gillman Pontiac Co. and Gillman, Inc d/b/a
Gillman Honda; In the 80th Judicial District Court of Harris County, Texas; March 26 2002
Deposition '
♦ Cause No. 31,225-98-6; Yolanda Tipps, tndividualfy and As Next Friend of Jason Donnell Tipps a
minor, v. Gayle Marcus Hogue and Pilgrim Pride Corporation; in the Judicial Court of Anqeli'na
County, Texas; March 11, 2002, Deposition
♦ Cause No. 98-3704; Heather Moran, et al v. General Motors Division B, 27th Judicial District Court
St. Landry Parish, Louisiana; April 10,2001, Deposition
♦ Cause No. 99-00514; Johnny Ray Foley, as Wrongful Death Beneficiary, and as Heir to the Estate
of Patricia Ann Foley, Deceased, v. Andy Tran; 280th Judicial District Court of Travis' County
Texas; September 13,2000
♦ Cause No. 98-00099; Rafael Astacio v. General Motors Corporation, Commonwealth of
Massachusetts Superior Court. Law firm was Cambell Edwards and Conroy, 1Constitution Plaza
Boston, MA
♦ Cause No. 98-08441; Brett Fishburn and Christine Fishburn for Joseph Fishbum v. Warren E
Collins, Inc. and Terry L Thompson; 157th Judicial District Court of Harris Countv Texas-
September 15,1999
♦ Cause No. 109278, Patrick Day v. Kinsel Industries, 268^ District Court of Fort Bend County
Texas
10/22/2007 Auto Fire &Safety Consultants, Inc.
Ca^Cope Expert Testimony H
♦ Cause No. 97-561,021, Elwood Ellis v. Burlington Northern Santa Fe Railway Company the Citv of
testa ) JdmeS A"an C°X' 'n thS 72"d D'StriCt C°Uri °f Lubb°Ck C°Unty' Texa* (Live
11
THE COURT: You may proceed, Ms. Stroud.
12
MARTHA ALFORD,
13
having being first duly sworn, testified as follows.-
14
DIRECT EXAMINATION
15 BY MS. STROUD:
16 Q. fould you state your name for the record
17 A. Martha Alford.
18 Q. Ms. Alford, where are you from?
19 A. Born, you mean?
20 Q- Where were you born?
21 A. San Antonio, Texas.
22 Q. When did you come here to Houston?
23 A. In '78.
24
Q. Are you a little bit nervous?
25 A. Yeah. •
1 church? w
2
A. A little after 10:00.
3
Q. While you were at the church, did you have any
4 food or drink?
5 A. No.
6
Q. Prior to going ,to the church, had you had any
7 alcoholic beverages?
8 A. No.
•
9
Q. When you left the church, who left with you?
10 A. Linda.
11
Q- Was it just the two of you in your car?
12 A. Yes.
13"
Q. And what kind of car were you driving?
14 A. A Ford Focus.
15 Q. And was that your car?
16 A. No.
17 Q. Whose car was it?
18
A. It was a rental car she rented. ^
19
Q. So, Linda had rented the car. And were you
20 driving it?
21 A. Yeah.
22
Q. Can you tell the Court why you were driving and
23 not Linda?
24
A. Because it was raining and Lakewood Church was
25
real far from where I live, and she felt more comfortable
16
1 with my driving-'over there. -r'
2
Q. Was she used to driving in Houston?
3 A. No.
4
Q. When you left the church and you were driving,
5 where was Linda sitting?
6 A. On the passenger side.
7
Q. Did you have your seat belts on?
8 A. Yes.
9
Q. When you left the church, where did you and Linda
10 go?
11 A. We were going home, but sh25 A. I stopped.
20
1 Q. You stopped. ~~
£••••• 2
And you stated there.were no vehicles in
3 front of you; is that correct?
4 A. Yeah.
5
Q. Do you remember seeing any other vehicles?
6 A. Yes .
7 Q. And where were they located?
8 A. One was directly in front of me over here
9 (indicating).
10 Q. And was he trying to also make a turn?
11 A. No. He had a red light.
12 Q. He had a red light?
13 A. He was stopped.
14 Q. But was he in a turn lane?
15 A. Yes.
16 Q. And anybody else?
17
•A. There was -- I'm not sure which lane, but either
18 here or here, there was another vehicle (indicating).
19 And they had a red light and they were waiting.
20 Q. And so, as you stopped, ready to make your turn
21
into the Taco Cabana, what do you remember happening?
22
A. I looked in front of me and saw the traffic. And
23 I looked towards the -- this lane that you can make a
24 right-hand turn on to make sure --
25
Q. Are you referring to this lane here (indicating)?
21
A. Yes
2
Q. Where this arrow shows a right-hand turn?
3
A. Because it's so close to the driveway of the Taco
4
Cabana that I am driving into, I wanted.to make'sure that
5 it was clear and when I turned --
6 Q. And after you turned, what happened?
7
A. My sister screamed out, Watch out. And I looked
8 at her and said, What?
9
And the next thing I saw was the grill of his
10 car at the window and the grill hit her and the glass
11
shattered. And I tried to catch her. I didn't see him.
. 12 And that is all that happened.
13 Q. Martha --
14 A. Yeah.
15
Q. -- are you testifying that Linda had time to yell
16
out, Watch out, and you had time to respond and turn your
17 head and say, What?
18 A. Yes.
19
Q. Before the vehicle hit your vehicle; is that
20 correct?
^21 A. No. Right as the impact — right when it hit.
22 Q. Is when you turned and said, What?
23 A. Yes. And it hit.
24 Q. And you said you tried to;catch Linda?
25
A. Yes. Because she was bouncing around. I
EXHIBIT ELEVEN
REPORTER'S RECORD
a'%
♦ VOLUME 6 OF 7 VOLUMES
%.• .- ********* * * ********* >
—3
CO
_£ __ f~-
2Z» O -XI
15
I* sc**
a —c d ..—/ _,_
PUNISHMENT Orn _— —• ~; ^-*-
£0*' en O —•;'. ...
16
cv
0&. ********************
__
-o PO
17 CO "" —..
o ~
(.'"?
at en
18 On the 13th day of December, 2002, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Mark Kent Ellis, Judge presiding, held in Houston, Harris
22 County, Texas:
23
Proceedings reported by computer-aided
24 transcription/stenograph machine.
25
1 APPEARANCES
2
4 MS. MARKAY STROUD
5 Assistant District Attorney
6 SBOT NO. 24000229
7 MS. ELIZABETH SHIPLEY
8 Assistant District Attorney
9 SBOT NO. 24008031
10 1201 Franklin
11 Houston, Texas 77002 '•
12 PHONE: 713.755.5800
13 ATTORNEYS FOR THE STATE OF TEXAS
14
15
16 MR. MICHAEL BARROW
17 SBOT NO. 01831900
18 1314 Texas Avenue, Suite 1300
19 Houston, Texas 77002
20 PHONE: 713.224.8383
21 ATTORNEY FOR THE DEFENDANT
22
23
24
25
1
(Open court, defendant present, no jury)
2 (Witnesses sworn)
3 THE COURT: Gentlemen, the Rule has been
4 invoked. That means you have to be outside the courtroom
5 unless you are testifying. You cannot talk to one
6 another about the testimony. You can only talk about it
7 here in court, so please step out in the hallway.
8 Here's the stipulation.
9 (Discussion off the record)
10
THE COURT: Mr. Sixta, I'm not -- whatever
11 happened last night, •obviously,' I'm glad you're alive and \ /
12
all that stuff, but that's not relevant to this hearing.
13
So, you're not to talk about it. Nobody is going to ask
14
you any questions about it. So, that's not relevant to
15 the decision the jury has to make. All right?
16
THE DEFENDANT: I understand, sir.
17
THE COURT: Okay. Bring me the jury.
18
(Open court, defendant and jury present)
19
THE COURT: Please be seated.
20
All right. Is the State ready to proceed on
21 punishment?
22 MS. SHIPLEY: We are, Your Honor.
23
THE COURT: Defense ready to proceed on
24 punishment?
25 MR. BARROW: Yes, sir.
EXHIBIT TWELVE
REPORTER'S RECORD
%
# VOLUME 6 OF 7 VOLUMES
%Ml
TRIAL COURT CAUSE NO. 923949
5 DANIEL JAMES SIXTA IN THE DISTRICT COURT
6 Appellant
7
8 VS
HARRIS COUNTY, TEXAS
•9
10 THE STATE OF TEXAS
11 Appellee 351ST JUDICIAL DISTRICT
12
13
^A?*f9 CD
14 CO
******************** >
_£
za O-X'
2J>
c~> —C d —r ...
15 Orn — .—-. ^Z-
PUNISHMENT
.
cn
—' —:
16 ********************
__
-D no
17 CO ••
r"
O JT" (./'j
cn
at
18
On the 13th day of December, 2002, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Mark Kent Ellis, Judge presiding, held in Houston, Harris
22 County, Texas:
23
Proceedings reported by computer-aided
24 transcription/stenograph machine.
25
___^ 36
1
Q. Mr. Sixta, when were you first aware that a
2
fatality had occurred on February the 21st of 2002?
3
A. After we were leaving the hospital, the deputy
4 informed me.
5
Q. So, and you heard -- that would be Deputy Smith?
6 A. Correct.
7
Q. And you heard all the testimony over the past two
days of you showing no remorse, correct?
9 A. Yes, sir.
10
Q. The fact of the matter is, no one had informed
11 you that --
12
MS. STROUD: Object to leading, Your Honor.
13 THE COURT: Sustained.
14
Q. (By Mr. Barrow) The first time you understood
15 there was a fatality was when?
16
A. When I left the hospital with the deputy. :
17 Q. You were unaware at the scene?
18 A. Yes, sir.
19
Q. Did you ever even approach Ms. Alford's vehicle?
20
A. I didn't have an opportunity. I was trying to
21
help my passenger and the paramedics arrived and then the
22 officer came and got me.
23
.X
Q. Did you serve in the military, Mr. Sixta?
24 A. Y e s, sir .
25 Q. What branch?
37
1 A. The Marine Corps.
2 Q. And when was your service?
3 A. 1978 to the late 1980s.
4 Q. Honorably discharged?
5 A. Yes, sir.
6 Q. What rank did you achieve?
7 A. Corporal.
8
Q. Prior to February the 21st of 2002, were you
9 employed?
10 A. Yes.
11
Q. And what was your employment?
12
A. I owned the Guardian Fence Company and Sixta
13 Access Systems.
14
Q. And could you briefly describe what your job .
15 entailed?
16
A. I specialized in installations of access
17
equipment, automatic gates, telephones, surveillance
18
cameras, electronics dealing with such.
19
Q. How do you feel about the events that occurred on
20 February 21st, 2002, Mr. Sixta?
21
A. I've been devastated every day. If I could, I
22 would replace her life with my own.
23
MR. BARROW: Pass the witness.
24
THE COURT: Ms. Stroud.
25
MS. STROUD: Thank you, Your Honor.
EXHIBIT THIRTEEN
COURT OFCRIMINAL APPEALSACTIVITY: FY 2013
Pending: Cases Pending:
maen1 Added TendanPecket Dftposjaons wwan
Regular Appeals
Direct Appeals: Death Penalty
17 S 25 10 15
DNA Appeal-Death Sentence 0 4 4 3
Habeas Corpus _ Extraordinary Mailers IS 209 224 215 9
OAerAppeah 2 3 5 3 2
Petitions for Discretionary Review {includes Granted MRU _ Reinstated) 328 1,470 1,798 1,491 307
Granted Petitions for Discretionary Review 64 121 1X5 102 83
Redrawn Pennons fer Discretionary Review 9 195 204 191 13
SUBTOTAL
435 2,010 2,445 2,013 432
^/Applications for Writ ofHabeas Corpus
U.07Writs (other tban death penalty) 597 4,288 4,885 4,473 412
11.071 Writs (deathpenalty) 24 43 67 54 13
Supplemental 11.07 Writs (other than death penally) 78 352 327 103
Supplemental 11.071 Writs (death penalty) 9 15 14 10
SUBTOTAL
768 4,698 5,406 4,868 538
OriginiAProceedings1
Writs ofCertiorari
0 7 7 7 0
Writsof Habeas Carpus 2 66 68 63 5
Supplemental ReceivedWrit ofHabeas Corpus 0 1 1 0 1
Writs ofMandamus
76 641 717 676 41
Supplemental Received Writ ofMandamus 29 219 248 209 39
Origmal_ Supplemental 11.071 Matters 0 10 10 10 0
Writs of Prohibition
1 S 9 7 2
Supplemental Received Writ ofProhibition 1 1 2 2 0
SUBTOTAL
109 953 1,062 974 88
Morions for Rehearing& Reconsideration
Rehearing on Direct Appeal 1 5 5 0
Rehearing onRefused Pennons for Discretionary Review 3 60 63 61 2
Rehearing onGranted Petitions for Discretionary Review 5 10 15 15 0
Rehearing onHabeas Corpus (filed _ set) 1 12 13 13 0
Motions for Reconsideration (for original proceedings _ 11.07 &11.071 wits) 2 12 14 12 2
Motions for Stay ofExecution (for 11.071 writs) ] 6 7 5 2
SUBTOTAL -
13 104 117 111
Martens for Extensions of Time3
V 1,53$ 1^525 1,5-5
TOTAL
1,265 9^90 10355 9,491 1,063
PENDING CASE STATUS: FY 2013
9/1/2012 8/31/2013
Not Setfor Set/or Total Not Setfor Set/or Total
Submission Submission Submitted PetuSn- Submission Submission Submitted Pending*
Direct Appeal: Death Penally 9 2 6 17 8 1 6 15
Direct Appeal: DNAAppeal 0 0 0 0 2 1 0 3
yOther Appeals 0 0 0 0 0 2 1
V Direct Appeal: Habeas Corpus _
Extraordinary Matters 6 5 4 15 3 0 6 9
Granted Petitions forDiscretionary Review 16 11 44 64 28 10 45 83
TOTAL 31 18 54 103 41 12 59 112
I'"^'Z"J^*"****"*** Onuyn^cas-r"cndofo* previous fiscal year (Angaa 31)dnc todocket adjustment*.
-ttiginalprocccdjr^ arcfiledibtcetlywithIlKDim otX'"
MANNER OF DISPOSITION: Appeals &Original Proceedings. FY 2013
Direct Appeals: Dismissed - Art. 11.07, Section 4
858
Death Penalty Ksmissed- Art 11.07, Tot.Gov. Code 5501.0081 SS
Affirmed Dismissed
10 132
TOTAL: Death Penalty 10
Filed & set
182
Habeas corpus remanded for evidemiary faearing/affwim order 352
Death Pmahy - DNA Appeal Habeas carpus remanded ara>b^onprcn_tnreiy forwarded 11
Affirmed Habeas corpus remanded for report/findings 9
1
Other Appeals Habeas corpus remanded live hearing 4
3
TOTAL: Otter Appeals Habeas corpus returned to district clerk
4 1
Habeas corpusdismissed/Daniel
6
Habeas Carpus _ Extnwrdiluuy Matters Habeas corpus reliefdenied without written order 953
Habeas corpus application granted Habeas corpus reliefdenied with written order 57
180
Habeas corpus application denied 15
Habeas corpus reliefdenied with hrg on findings oftrial court 42
Habeas corpus application dismissed Habeas corpus reliefdenied wfo hrg on findings oftrial court 1,237
1
Habeas carpus denied in part and dismissed in part Habeas corpus demed/dtsmissed withorder 35
1
Mandamus conditionally granted Habeas corpus dismissed -juvenile matter I
10
Mandamus _ prohibition relictconditionally granted Habeas corpus dismissed - misdemeanor offense 5
2 Habeas corpusdismissed- moot
Prohibition reliefgranted 39
1 Habeas corpus dismissed - sentence discharged 198
demanded to (rialcourt 3
Habeas corpus dismissed - community supervision not revoked
Withdraw prior opinion - habeas corpus relief granted 2 Habeas corpus dismissed withwritten order
22
11
TOTAL: Habeas Corpus _ Extraordinary Matters 215 Habeas corpus dismissed for non compliance 236
Habeas corpusdismissed- Vbarra
79
TOTAL: Direct Appeals 22, TOTALMPPLICATIONS FOR WRIT OF HABEAS CORPUS S
4,800
Petitions forDiscretionary Review 11.071 AopifcatiotK far WritafHabeas Corpus
2 11.071 Writdenied/dismiss withorder
2
Granted 11.071Writ deniedwith writtenorder
117 27
Refused 11.071 Writ dismissed with order
1,090 26
Struck 11.071 Writ filed —set
230 6
Untimely 11.071Writ remanded with order
52 7
Withdrawn
0 TOTAL: 11.071 Applications for Writ ofHabeas Corpus 68
TOTAL: Petitions f«r Discretionary Review 1,491
Original Proceedings - Non Capital
Granted Petitions for Discretionary Review Motion for leave to file denied without written ordcrV- 640
Affirmed court of appeals Motion Snr leave tofife held mabeyance with written order
26 228
Affirmed as reformed Motion for leave to file dismissed - Padilla
2 75
Affirmed court ofappeals, remanded totrial court Motion fe leave Co file denied withwritten order 4
I
Court ofappeals, asmodified, affirmed Motion for leawto file abuse order entered
2 2
Dismissed as improvidentty granted Motion for leave to file dismissed asmoot 1
3
Dismissed
Reversed court ofappeals, trial court reformed 2
4
Filcd&sct
Reversed conn ofappeals, trial court reinstated 5
10
Reversed court of appeals, acquittal ordered TOTAL- Original Proceedings -NonCapital 964
2
Reversed court ofappeals &remanded to court ofappeals 23 Original Proceedings - Capital
Reversed court ofappeals &remanded totrial court 6
Motion far leaveto filedismissed moot
Reversed court ofappeals &affirmed trial court 11 Motion forleaveto file filed andset
3
Reversed court ofappeals _ trial court, remanded _ trial court 1 Motion for leave to file denied w/owritten order
3
Reversed court ofappeals Motionfor leaveto file dismissed
3
3
I
Vacated court ofappeals &remanded to court ofappeals IS TOTAL: Original Proceedings
16
TOTAL.- Granted Petitions for Discretionary Review 102
Mortons lorReconsideration and Stay ofExecution
Redrawn Petitions for Discretionary Review Motionforreconsideration denied
92
Granted Motion fbr reconsideration granted 4
3 12
Refused Motion fbrreconsideration—no action 3
187 89
Untimely Motion forreconsideration - dismissed
1_ 47'
TOTAL: Redrawn Petitlm_ for Discretionary Review 191
Motion figstay nf wrecction denied Mil mder 5
TOTAL: Motkns far i-consHerarlou and Stay ofExecution 245
Applications for WritofHabeas Corpus
Abuse ofwrit orderentered
22
Abuse ofwrit order previously entered 63
Dismissed-360 S.W.3d 446 (Tex.CrimApp.2011), and (2) this case permits us
to decide whether there is a due-process violation outside the context of a death-penalty case. I write
separately to explain why I conclude that this case presents more compelling reasons for granting relief
than those presented in Robbins. See id.
In Robbins, this Court denied the applicant relief. Id. at 448. If this case was factually identical to
Robbins, the same precedent that was used to deny relief in Robbins would compel denying relief in this
case. See id. Instead, the Court grants relief in this case. I conclude that, although they share many factual
similarities, Robbins and this case differ as to the findings of fact rendered by the respective trial courts:
This trial court finds that new scientific evidence is the basis for ordering a new trial, whereas the Robbins
trial court found that use of false evidence was the basis for ordering a new trial. Id. at 457.
The Robbins trial court's findings stated that medical examiner "Dr. Moore's trial opinions were not true.
They were based on false pretenses of competence, objectivity, and underlying pathological reasoning,
, and were not given in good faith." Id. at 477 (Alcala, J., dissenting). The trial court characterized Dr.
Moore's testimony as "expert fiction calculated to attain a criminal conviction." Id. Furthermore, the trial
court found that Dr. Moore was "biased toward the State" at the time she testified. Id. at 474 (Cochran, J.,
dissenting). In my dissenting opinion in Robbins, I concluded that the record supported the trial court's
characterization concerning the falseness of the testimony and that the use of that testimony violated the
Due Process Clause of the Fourteenth Amendment. Id. at 476-77 (Alcala, J., dissenting); see also Ex parte
Chabot, 300 S.W.3d 768,770-71 (Tex.CrimApp.2009); Ex parte Napper, 322 S.W.3d 202,242
(Tex.CrimApp.2010).
Here, the trial court has not made any factual findings to suggest that, at the time that it was introduced,
the medical evidence underlying applicant's conviction was known to have been false. More specifically,
nothing in the trial court's findings suggests that Dr. Bayardo based his testimony on false pretenses of
competence, a lack of objectivity, prosecutorial bias, or expert fiction calculated to attain a criminal
conviction. The absence of these types of findings distinguishes this case from Robbins and renders it a
15
new-science case rather than a false-testimony case. Compare id. at 457. As Judge Cochran accurately
observes in her concurring opinion today, Dr. Bayardo's testimony was "based upon the state of the
scientific knowledge" and was not known to have been false at the time it was given. For this reason, I join
Judge Cochran's opinion today, although I did not in Robbins. See id. at 476 n. 1 (Alcala, J., dissenting).
In Robbins, I explained that I did not join Judge Cochran's dissenting opinion "because the change in Dr.
Moore's testimony is not due to new scientific principles but is instead, according to her, due to her having
more experience as a medical examiner, and according to the trial court's findings, due to her trial
testimony being the result of prosecutorial bias." Id. Today, I join Judge Cochran's concurring opinion
because this case falls squarely within her assertion that executing a defendant whose conviction is
premised on now-discredited scientific theories violates due process, even though those scientific theories
were once considered valid and true at the time they were applied.
Furthermore, although I disagree with the Honorable Judge Price's analysis of Robbins, I agree with his
conclusion that this case presents a stronger reason to grant relief than that presented in Robbins:
Without relief, applicant will be executed for a conviction that we now know was premised largely on
faulty science.
The Supreme Court has succinctly observed that "the penalty of death is qualitatively different from any
other sentence." Lockett v. Ohio, 438 U.S. 586,604,98 S.Ct. 2954,57 L.Ed.2d 973 (1978) (internal
quotations omitted). Among these differences is that a death sentence "is unique in its total
irrevocability." Furman v. Georgia, 408 U.S. 238,306,92 S.Ct. 2726,33 L.Ed.2d 346 (1972) (Stewart, J.,
concurring). The Court has held that the "qualitative difference between death and other penalties calls
for a greater degree of reliability when the death sentence is imposed." Lockett, 438 U.S. at 604. This
heightened need for reliability requires a mechanism that enables judicial enforcement of that sentence to
evolve with the science that serves as the basis for imposition of that sentence.
Whether we ultimately apply the faulty-science theory to due-process complaints beyond the death-
penalty context is a question for another day. The holding of this case is quite narrow: Due process
prohibits the execution of a person when faulty science was essential to the State's establishment of an
element necessary for conviction^here, that the cause of death of the complainant was intentional—and
the habeas record shows that today's scientific community reaches a different consensus—here, that the
cause of death is undetermined.
In accordance with the trial court's recommendation, I join in the Court's judgment granting relief and
remanding for a new trial.
DISSENTING OPINION
Like this Court's order remanding the matter to the trial court for findings of fact and conclusions of law,
the Court's opinion today grants Cathy Henderson relief without one word of analysis why she is entitled
to it. In fact, the Court does not even identify the legal basis for granting Henderson relief. Instead it
issues a legally hollow opinion with a staggering result. Readers of both our remand order in this matter
and today's opinion will undoubtedly and justifiably be both baffled and appalled by the Court's opinion. I
16
count myself among them. The unmistakable message of the Court's per curiam opinion is this: despite
applicable legal precedent to the contrary and overwhelming inculpatory facts, we grant Henderson relief
solely because we want to. And to future applicants, this message's implication is clear: with luck, your
writ application may also be viewed with such grace.
In her subsequent application for a writ of habeas corpus, Henderson asserts she is entitled to relief for
three reasons: (1) she is actually innocent of capital murder because no reasonable juror would convict her
of capital murder in light of new scientific evidence (Herrera1 -type claim); (2) but for constitutional
errors—namely a violation of Ake v. Oklahoma2 and a Fifth Amendment claim previously raised and
rejected on direct appeals —no rational juror could have found her guilty beyond a reasonable doubt in
light of the new evidence (Schlup* -type claim); and (3) she is no longer death eligible. The Court came to
the breathtaking conclusion that Henderson satisfied Texas Code of Criminal Procedure article 11.07, §
5(a) with her allegation that then Travis County Medical Examiner Dr. Roberto Bayardo's reevaluation of
his opinion at trial was newly discovered evidence that established her innocence. The Court remanded
the matter to the trial court for further proceedings on Henderson's first two claims and dismissed her
third.s
After several evidentiary hearings, this matter now returns to us with the trial judge's findings of fact and
conclusions of law recommending that we grant relief on Henderson's first actual-innocence claim. Dr.
Bayardo's reevaluation of whether the injuries suffered by Brandon Baugh, the three-and-half-month-old
victim of this capital murder, were intentionally inflicted is the crux of Henderson's actual-innocence
claim and the foundation of the trial judge's recommendation to grant relief. Despite our instructions in
the remand order, the trial judge did not enter findings of fact or conclusions of law on Henderson's
Schlup claim, which if the Court were to expressly reject Henderson's actual-innocence claim, as it should,
would require remanding to the trial judge to address this issue.
By explicitly stating that the trial judge's findings of fact are supported by the record, the Court, by
implication, reaches the opposite conclusion as to the trial judge's conclusions of law—that they do not
share the same record support. But it nonetheless "accepts" the trial judge's recommendation to grant
relief and give Henderson a new trial on an unknown basis. Surely, it cannot be actual innocence
otherwise the Court would have found the trial judge's conclusions are supported by the record or would
have expressly found Henderson proved her actual innocence. In its zeal to grant Henderson relief, the
Court is forced to look elsewhere to accomplish its goal, and left without a clear legal path, the Court takes
the indefensible position to grant relief without justification or explanation. The facts adduced at trial and
in the subsequent evidentiary hearings in light of our actual-innocence case law make it clear why the
majority could not adopt the trial judge's conclusions and grant Henderson relief on actual-innocence
grounds; the burden is too high, the inculpatory facts are too great, and the "new evidence" is too weak.
To put the issue of Dr. Bayardo's reevaluation in perspective, it is appropriate to start with his testimony
at Henderson's 1995 capital murder trial. At the time, Dr. Bayardo had been Travis County's Chief Medical
Examiner for eighteen years and throughout his career he had performed approximately 15,000
autopsies. He personally performed Brandon Baugh's autopsy and testified to the extent of Brandon's
injuries at trial. Dr. Bayardo concluded, "It is my opinion, based upon the autopsy findings, that the
decedent, Brandon Baugh, came to his death as a result of a severe closed head injury. There was
17
comminuted fracturing of the back of the skull and subdural and subarachnoid hemorrhages implying
that a severe force had been given to the head and characteristic of abuse, homicide."6 Dr. Bayardo also
concluded that it would have been "impossible" and 'Incredible" for a fall from four to four-and-a-half feet
to have caused Brandon's injuries. He also testified that Brandon's injuries were not accidental because
the fractures crossed the suture lines found in an infant's not-fully formed skull which would require a
severe degree of force. Further, the injury's location—the back of the head—was a characteristic of an
abused child because most accidents occur on the sides of the head. Dr. Bayardo explained that "[t]his is
an injury that you see when a baby's head is slammed or thrown very forceable against a flat surface" and
in order for Brandon's injury to result from a fall, "he would have to fall from a height higher than a two-
story building."? On cross-examination, Dr. Bayardo conceded that his testimony was limited to the cause
of death and he was unable to tell the jury the exact nature of the severe force or how that force was
inflicted.
At the habeas hearing and in his affidavit, Dr. Bayardo testified that after reviewing reports from Drs.
John Plunkett, Peter Stephens, and Kenneth Monsoon—Henderson's proffered experts who discussed
how biomechanics could explain that Brandon's injuries were accidental—he would no longer testify that
the manner of Brandon's death was homicide; instead he would now conclude that it was "undetermined,"
as opposed to accidental. According to his affidavit, Dr. Bayardo also claims that he would not be able to
testify about the degree offeree needed to cause Brandon's head injury and would not conclude that an
accidental fall was "impossible" or "incredible" in explaining the cause of Brandon's injuries.
Even after the benefit of multiple evidentiary hearings where the trial judge took testimony from expert
after expert, Henderson is no closer to establishing her innocence than she was in her claims she asserted
in her subsequent appUcation.8 Henderson presents a bare innocence claim. We have labeled the burden
of establishing a bare claim of actual innocence a Herculean task.9 In satisfying this heavy burden,
Henderson's newly discovered evidence must constitute affirmative evidence of her
innocence.10 Henderson must show by clear and convincing evidence that no reasonable juror would have
convicted her in light of the new evidence.11 Whether an applicant satisfies this burden requires the
evaluation of "the probable impact of the newly available evidence upon the persuasiveness of the State's
case as a whole, so we must necessarily weigh such exculpatory evidence against the evidence of guilt
adduced at trial."12
The trial judge concluded that Henderson "has proved by clear and convincing evidence that no
reasonable juror would have convicted her of the capital murder of Brandon Baugh in light of the new
evidence presented in her Application."^ The Court's opinion acknowledgesthat in most circumstances
we appropriately defer to and accept the trial judge's findings of fact and conclusions of law when they are
supported by the record. However, we may make contrary findings and conclusion when our independent
review of the record reveals the findings and conclusions are not supported by the record.1* Here, the trial
judge's conclusion is not supported by the record and is demonstrably wrong because it implicitly
mischaracterizes Dr. Bayardo's new opinion, improperly focuses on Dr. Bayardo's reevaluation in
isolation, and fails to weigh such exculpatory evidence against all of the evidence of guilt adduced at trial.
Dr. Bayardo's testimony was merely one piece of evidence that established Henderson's guilt at trial and
shed light on her intent that fateful day. Henderson was the last one to have seen Brandon the day he
18
went missing after he was dropped off at Henderson's home where she cared for Brandon and Megan
Baugh. There were no calls to 911 that day from Henderson's home or from her neighborhood. There were
no other pleas for help. She had the Baughs' emergency contact numbers. But they were not called. After
Brandon died, she wrapped his body in a blanket and put his body in a Bartles & Jaymes wine cooler box
and secured it with tape later matched up to tape found in her home. With Brandon's body in the trunk of
her car, Henderson put her daughter Jennifer and Megan, Brandon's older sister, in the car with a spade
and her neatly packed suitcase and drove to Round Rock to get her car's oil changed.
On her way out of town and with the two girls in tow, she drove to the bank to withdraw $2200 through a
cash advance on her credit card. After repeated attempts proved unsuccessful, she was finally able to
withdraw $1000. Henderson told the bank employee that she needed the money because her father just
died and she needed to be with her family. At some point in the afternoon, she stopped at McDonald's to
get the girls something to eat. She then drove to Holland, Texas where her husband's relatives lived. She
arrived unexpectedly. They had not seen Henderson in five or six months. Once there, she told her
husband's relatives that she needed to go to the store and would be back soon. She asked her eleven-year-
old niece to babysit Jennifer and Megan. She never returned. Instead, she continued north where outside
Waco, just off a country road near a stand of trees, she buried Brandon in the box, using the spade she
packed. Investigators would later find Brandon's diaper bag in a ditch in the vicinity where they found
Brandon's buried body.
Later that night she checked into a motel in Blackwell, Oklahoma under the name Tracy Simms and listed
a Missouri address. The next day, Henderson arrived in Trenton, Missouri and dropped in on a longtime
friend Linda Brewer. It too was an unexpected visit. The two discussed Henderson's troubling custody
issues and how she was ordered to have only supervised visitation with her other daughter. Henderson
told Brewer that the children she watched were picked up by their grandparents who would take care of
them for a week so she decided to visit her in Missouri. Only three days after Brandon was killed and
while having a few margaritas with a friend, Henderson admitted that she had "killed somebody or
murdered somebody."^
Henderson and Brewer then drove to Independence, Missouri to see other friends. After her arrival in
Independence, Henderson told Brewer that she had a new identity, was getting new licence plates for her
car, and wondered how she would look with red hair. Brewer began to realize Henderson's trip was no
longer just an opportunity to come back and visit. When asked why she needed to change her identity, she
responded, "I can't do life. I don't want to talk about it anymore." With the use of a Social Security card
another friend found, she assumed the identity of Patricia Keith. Reluctant to drive her vehicle because
she was afraid the police would be looking for it, she got some old Missouri license plates and put them on
her car. She dyed her hair red. With her new identity, she rented an apartment under her assumed name.
She also began a sexual relationship with the male friend who gave her the Social Security card and new
license plates and wanted him to move in with her. She attempted to find a job in Independence. She did
all of this within three or four days after Brandon's death.
When a police officer knocked at the door of her apartment looking for information on Henderson and
Brandon, she claimed that she had never seen the person (Henderson) in the pictures. At first, the officer
did not recognize her from the pictures. But the officer returned, and Henderson gave a false name. After
19
Henderson consented to a search of the apartment, the officer discovered the Social Security card Patricia
Keith's name along with the receipt for the oil change and apartment rental receipt. She was subsequently
arrested and claimed that she did not know what this was about, threatened the officers with a false
imprisonment suit, and complained that she was going to miss a hair appointment.
She was then interviewed by an FBI agent to whom she gave conflicting stories. Her first story was that
she did not have any information about Brandon. In her second story, she claimed that the Baughs'
grandmother came to pick Brandon up. She then claimed she packed up the girls and brought them to the
bank, McDonald's, and the relatives' home in Holland and drove to Blackwell, Oklahoma, checking into
the motel under Tracy Simms and finally arriving in Trenton and Independence, Missouri. But when the
agent suggested that Brandon was dead, and perhaps it was an accident, Henderson said "yes." When
asked "Did you bury him?" she responded "Of course, I did. He's just a baby." Henderson's final version
was that around 10:30 in the morning, Brandon fell from her arms and hit the tile floor. She stated she
attempted CPR for about an hour, but she knew he was dead. She admitted to burying Brandon near
Waco with a spade she brought from home.
Dr. Bayardo was not the only witness who gave expert testimony concerning the manner of Brandon's
death. The jury heard from Lubbock County Deputy Chief Medical Examiner Dr. Sparks Veasey III. Like
Dr. Bayardo, Dr. Veasey concluded that Brandon's injuries were "consistent with a baby's head [being]
slammed into a blunt object, a baby being held by the legs and slammed into a wall or a floor. They are
consistent with a baby being forcefully—extremely forcefully thrown into a blunt—into a blunt
object."16 He further concluded that Brandon's injuries were inconsistent with an accidental drop from a
distance of four to five feet and was certain that Brandon's injuries were not the result of an accident. In
addition to Dr. Veasey, Henderson's own expert corroborated Dr. Bayardo's and Dr. Veasey's conclusions.
After reviewing the autopsy report, photographs, and videotape, Dr. Kris Sperry, the Fulton County
Deputy Chief Medical Examiner in Atlanta, Georgia, opined that Brandon's crushing skull fractures were
not accidental.
The trial judge's conclusion that Henderson proved by clear and convincing evidence that no reasonable
juror would have convicted her of capital murder simply failed to weigh Dr. Bayardo's reevaluation
against the evidence of guilt adduced at trial. The trial judge came to the remarkable and unsupported
mixed finding and conclusion that
Because Dr. Bayardo's testimony at trial was the critical evidence upon which the conviction of Applicant
rested, and was the testimony upon which the essential element of culpable mental state hinged, the Court
finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could
have or would have convicted Applicant of capital murder beyond a reasonable doubt in light of this new
evidence.17
Contrary to Judge Cochran's belief, the trial judge's opinion that "no rational juror could have or would
have convicted Applicant of capital murder beyond a reasonable doubt in light of this evidence" is a
conclusion of law, and therefore not entitled to deference.
20
The trial judge claimed to be mindful of Henderson's flight, only to "find [ ] that the evidence of flight did
not have the capacity to prove the mens rea of capital murder beyond a reasonable doubt." But "[w]e have
repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be
drawn."18 Notably, the trial judge did not hear from Dr. Veasey or Dr. Sperry in connection with
Henderson's application and Henderson does not directly challenge their conclusions. We do not know if
their conclusions would change like Dr. Bayardo's when presented with Henderson's experts' affidavits
and reports. On this record, we cannot assume they would. However, the trial judge cavalierly found that
"if the jurors had heard Dr. Bayardo's re-evaluation, they would not have credited the then-conflicting
testimony of Dr. Veasey ."^ Such idle speculation is certainly not a finding that this Court should adopt.
Even if true, what about Dr. Sperry's testimony offered by Henderson herself? The findings and
conclusions are silent about the potential impact of Dr. Sperry's corroborative testimony of both Dr.
Veasey's and Dr. Bayardo's opinions at trial. >
More importantly, it is the trial judge's failure to consider all of Henderson's actions after Brandon's death
that is the most troubling. After Brandon's death, there was no attempt to call for help. She attempted to
hide the evidence of Brandon's death by burying him near Waco with the spade she brought from home.
While having drinks with friends she admitted to killing or murdering someone. Further, Henderson did
not merely engage in a very deliberate plan to flee. She actively attempted to evade law enforcement
through assuming a new identity, changing her appearance, changing her licence plates, and starting a
new life in Missouri while leaving her family behind. And when the jig was up, she first claimed not to
know what happened to Brandon before finally admitting to burying him and changing her version of
events to describe an accidental death. These are not the acts of an innocent person. In the face of
common sense and our case law, it would be preposterous to conclude that Dr. Bayardo's new opinion
that the manner of death should be undetermined, as opposed to accidental, would undermine all of the
incriminating evidence establishing Henderson's guilt.
Byleaving its rationale unstated, the Court avoids confronting our holding in Ex parte Robbins,20 our
recent opinion addressing a factually similar actual-innocence claim and precedent determinative of
Henderson's actual-innocence claim. In Ex parte Robbins, Dr. Patricia Moore, an assistant medical
examiner, testified at Robbins's capital murder trial that the child victim's death was caused by "asphyxia
due to compression of the chest and abdomen and that the manner of death was homicide."21 Many years
after the juryfound Robbins guilty of capital murder, Dr. Moore's report and conclusions were
reexamined by several other medical examiners who disagreed with her conclusions. Dr. Moore herself
also reevaluated her report and came to the conclusion that her opinion had changed and the cause and
the manner of the victim's death should be listed as undetermined.22 Like Henderson, Robbins claimed
this reevaluation was newly discovered evidence that demonstrated his actual innocence.^ In denying
Robbin's actual-innocence claim, we held that
[Robbins] failed to prove that the new evidence unquestionably establishes his innocence. Moore can no
longer stand by her trial testimony, but rather than completely retracting her trial opinion, she is of the
current opinion that the cause and manner of death of [the victim's] death are 'undetermined/ Moore
cannot rule out her trial opinion as a possibility of how [the victim] died. Hence, Moore's reevaluation
21
falls short of the requisite showing for actual innocence because it does not affirmatively disprove that
[Robbins] intentionally asphyxiated [the victim] .24
Like Dr. Moore's reevaluation in Ex parte Robbins, Dr. Bayardo's reevaluation did not render void his trial
testimony.2s The jury could have considered Dr. Bayardo's testimony that the manner of death was
"undetermined" and still have found Henderson guilty based on all of the evidence presented at her trial,
including Dr. Veasey's and Dr. Sperry's expert conclusions.26 Henderson's reliance on Dr. Bayardo's
reevaluation merely serves to retroactively impugn the State's case at trial and does not affirmatively
demonstrate her innocence.2? On this record and particular claim of actual innocence, we are compelled to
follow Ex parte Robbins and conclude that Henderson failed to satisfy her Herculean burden—to show by
clear and convincing evidence that no reasonable juror would have convicted her in light of Dr. Bayardo's
reevaluation.
In its response, the State does not contest the trial judge's findings and conclusions, and does not oppose
granting Henderson relief. The State takes this position while simultaneously making it clear that it does
not believe that Henderson is not guilty and disagrees with the biomechanical theory presented by
Henderson's experts and relied upon by Dr. Bayardo in his reevaluation. The State's concern for the
community's confidence in the criminal justice system expressed in its response is laudable. But it is
neither legally controlling, nor a particularly persuasive argument for granting Henderson relief when the
State still contests Henderson's underlying factual contentions. The State's acquiescence cannot not
bridge the gulf between Henderson's asserted claims and the burden she must satisfy to be legally entitled
to relief.
Today, the Court's decision casts aside its established legal principles and grants relief to an applicant not
entitled to it. The Court accomplishes this feat by abandoning all standards necessary for an applicant to
obtain relief, only to replace them with an unexplained, ad hoc determination. "Because we want to" is not
a substitute for legal reasoning. And any suggestion to the contrary is untenable. Further, we have denied
past applicants similarly requested relief on similar evidence. We owe a duty to all applicants that we will
measure the merits of their claims equally.
Henderson's Herrera-type claim of actual innocence should be denied and her pending Schlup-type
actual-innocence claim should be remanded to the trial court for findings of fact and conclusions of law. It
is a travesty to grant this child killer relief on some unknown legal principle while her tiny, defenseless
victim lies dead and reburied. Therefore I dissent with all the vigor at my command.
DISSENTING OPINION
Something is missing here. While the Court states that it accepts the trial court's recommendation
granting relief, it does so without providing any legal basis for that ruling, and I cannot find a ground
upon which relief should be granted. And to justify its decision, the Court makes a quantum leap from
"advances in science" to granting relief, which presents a whole new dilemma for the criminal justice
system and this case in particular.
22
The real issue in this case is whether the admission of potentially unreliable evidence requires this Court
to grant relief regardless of the state of the remaining record. Eleven expert witnesses testified at
Applicant's writ hearing, some for both sides. The trial court found all of the experts credible but focused
on a change in the testimony of expert Dr. Bayardo to conclude that Applicant had proven by clear and
convincing evidence that no reasonable juror would have convicted her in light of the "new evidence." This
Court now defers to that conclusion. However, nowhere in Dr. Bayardo's altered testimony does he state
or indicate that his original opinion was false, nor does he refute the medical science relied upon by the
other State experts. Instead, Dr. Bayardo changed his opinion on the manner of death from "homicide" to
"undetermined" based upon changes in the science upon which he relied. While a change in Dr. Bayardo's
testimony could render his opinion unreliable, "unreliable" testimony does not equate with "false
testimony" or "innocence," nor does it automatically require a new trial.
The admission of expert testimony is governed by Texas Rule of Evidence 702, and to be admissible under
this rule, the party offering the scientific expert testimony must demonstrate by clear and convincing
evidence that such testimony is both relevant and reliable. Kelly v. State, 824 S.W.2d 568,572
(Tex.CrimApp.1992). The focus of the reliability analysis is to determine whether the evidence has its
basis in sound scientific methodology such that testimony about "junk science" is weeded out. Jordan v.
State, 928 S.W.2d 550,555 (Tex.CrimApp.1996).
Whether the science at issue is a "hard" science1or a "soft" science,2 "reliability should be evaluated by
reference to the standards applicable to the particular professional field in question." Coble v. State, 330
S.W.3d 253,274 (Tex.CrimApp.2010); see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113S.Ct. 2786,125 L.Ed.2d 469 (1993) (holding that when the subject of the expert's testimony is
scientific knowledge, the basis of his or her testimony must be grounded in the accepted methods and
procedures of science). Therefore, a change in the science upon which an expert relied in providing his
trial testimony might indeed undermine the reliability of his testimony. But it does not necessarily follow
that the testimony was "false"or that the existence of new science necessarily implicates innocence. For
example, in this Court's unanimous opinion in Ex parte Miles, 359 S.W.3d 647 (Tex.CrimApp.2012), we
adopted the trial court's conclusion that the "gunshot-residue standards, as testified to at trial, are no
longer reliable." Id. at 663. However, we did not adopt the trial court's conclusion that "Applicantshould
also be granted relief, independently, on the ground of flawed forensic testimony." Id. Instead, we looked
to all of the evidence presented and only then determined that actual-innocence relief was warranted.
Other decisionsfrom this Court recognizeboth the advancement in science and the legislative directiveto
apply that science to our caselaw through Chapter 64 of the Texas Code of Criminal Procedure. While
further testing may prove to be inconclusive or even exculpatory, relief may nonetheless be denied based
on the volume of other evidence. See Gutierrez v. State, 337 S.W.3d 883 (Tex.CrimApp.2011); Prible v.
State, 245 S.W.3d466 (Tex.CrimApp.2008).
Furthermore, even if a change in the underlying science means that the expert testimony was unreliable, it
does not automatically result in a due process violation (and thus a new trial). An additional analytical
step is required. Only when the admission of unreliable testimony was harmful is due process implicated
and a new trial appropriate. See Coble, 330 S.W.3dat 280. Accordingly, relief should only be granted if
the applicant demonstrates the error affected his or her substantial right to a fair trial. See Tex.RApp.
23
Proc. 44.2(b); Coble, 330 S.W.3d at 280 (explaining that harm occurs when the error had a substantial
and injurious effect or influence in determining the jury's verdict). A criminal conviction should not be
overturned by the erroneous admission of evidence "if the appellate court, after exarnining the record as a
whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v.
State, 967 S.W.2d 410,417 (Tex.CrimApp.1998).
This reliability analysis is consistent with our policy interest in the finality of convictions. The Supreme
Court has emphasized its enduring respect for "the State's interest in the finality of convictions that have
survived direct review within the state court system." Calderon v. Thompson, 523 U.S. 538,555,118 S.Ct.
1489,140 L.Ed.2d 728 (1998). "Without finality, the criminal law is deprived of much of its deterrent
effect." Teague v. Lane, 489 U.S. 288,309,109 S.Ct. 1060,103 L.Ed.2d 334 (1989) (plurality op.). To
abide by Judge Cochran's suggestion that any intervening scientific development should result in a new
trial would seriously undermine the stability of our criminal justice system. Most convictions involve
some type of scientific evidence, whether hard (e.g., DNA or urinalysis) or soft (e.g., eyewitness
identification or forensic psychiatrists testifying about future dangerousness). Rarely is a case wholly
dependent on science alone. Thus, if we were to grant a new trial with every scientific advancement,
without proof that the original science was indeed faulty, the finality of convictions would be illusory.
While the evolution of science is important to the improvement of our system, each case must be decided
individually, taking into account all of the evidence.
In summary, intervening scientific developments might result in unreliable expert testimony, and the
admission of this unreliable evidence might rise to the level of a due process violation. But this case does
not present us with such a scenario. Dr. Bayardo changed his opinion on the manner of death from
"homicide" to "undetermined" based upon changes in the science upon which he relied. Perhaps this
makes Dr. Bayardo's trial testimony unreliable, but as Judge Cochran acknowledges in her concurring
opinion, this "does not mean applicant is actually innocent of homicide" or that "[Dr. Bayardo's] trial
testimony was false' at the time it was given, based upon the state of scientific knowledge that he relied
upon at that time." The "new evidence," even if based on "new science," must still affirmatively establish
that the applicant is entitled to relief. See Ex parte Spencer, 337 S.W.3d 869,879 (Tex.CrimApp.2011).
Additionally, when the entire record is considered, it is clear that Appellant's substantial rights to a fair
trial were not affected by the admission of Dr. Bayardo's testimony. See Coble, 330 S.W.3d at 280 ("In
making a harm analysis, we examine the entire trial record and calculate, as much as possible, the
probably impact of the error upon the rest of the evidence."). As Judge Keasler competently outlines in his
dissenting opinion, there is ample evidence to support that Appellant intentionally caused Brandon's
death. See Tex. Penal Code § 19.03(a)(8). Certainly, in this context, Dr. Bayardo's unreliable testimony
could not have a substantial and injurious effect or influence in determining the jury's verdict. See Coble,
330 S.W.3d at 280. The record provides fair assurance that the error would not influence a jury, or would
have but a slight effect. See Johnson, 967 S.W.2d at 417.
For these reasons, I respectfully dissent.
PER CURIAM.
24
PRICE, J., filed a concurring opinion.COCHRAN, J., filed a concurring opinion in which WOMACK,
JOHNSON, and ALCALA, JJ., joinedALCAIA, J., filed a concurring opinion.KEASLER, J., filed a
dissenting opinion, in which KELLER, PJ., and HERVEY, J., joined-HERVEY, J., filed a dissenting
opinion in which KELLER, PJ., and KEASLER, J., joined-MEYERS, J., not participating.
25
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