Pruett, Robert Lynn ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,099-05
EX PARTE ROBERT LYNN PRUETT, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
AND MOTION TO STAY THE EXECUTION IN CAUSE NO. B-D1-MO15-PR-B
IN THE 156 TH JUDICIAL DISTRICT COURT
BEE COUNTY
A LCALA, J., filed a dissenting statement.
DISSENTING STATEMENT
The Legislature recently enacted three statutes addressing the inherently questionable
nature of inmate testimony, the prejudicial impact of junk science, and the problems that
occur when the State does not fully participate in discovery with the defense, and this
snakebit case is riddled with each of those problems. I would grant the motion to stay this
impending execution for a capital-murder conviction against Robert Lynn Pruett, applicant,
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on the basis that this Court should fully consider the merits of his complaint that junk science
played a primary role in his conviction, but in discussing the gravity of the situation, I also
note that this case is riddled with problems that the Legislature has attempted to now fix:
junk science, inmate testimony, and lack of discovery. This application for a post-conviction
writ of habeas corpus filed by applicant challenges his conviction for the 1999 capital murder
of Daniel Nagle, a correctional officer at the McConnell Unit. See Pruett v. State, No.
74,370 (Tex. Crim. App. Sept. 22, 2004) (not designated for publication); Ex parte Pruett,
207 S.W.3d 767, 767 (Tex. Crim. App. 2005) (denying initial application). I respectfully
dissent from the Court’s dismissal of this post-conviction writ application on procedural
grounds and its denial of the motion to stay the execution filed by applicant. See T EX. C ODE
C RIM. P ROC. art. 11.071, § 5. Instead, I would file and set the present application for this
Court to interpret the meaning of Article 11.073, and, if appropriate, remand this claim to the
habeas court for an evidentiary hearing. See id. art. 11.073. I would further sua sponte reopen
applicant’s previous application for a writ of habeas corpus in which he asserted complaints
premised on the ineffectiveness of trial counsel and a due-process violation challenging the
use of false evidence at his trial. Rather than permit an execution to take place under
circumstances in which the primary evidence underlying the conviction—inmate testimony
and likely junk science testimony based on the purported matching of strips of masking
tape—has been deemed inherently questionable and unreliable by the Legislature, I would
instead ensure that the integrity of this conviction is beyond reproach by staying the
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execution and examining the evidence more closely.
I. Background
The record suggests that applicant was convicted primarily on the testimony of
inmate-witnesses and junk science. The evidence adduced at applicant’s 2002 capital-murder
trial indicated that the shank used to stab Nagle had masking tape wrapped around the
handle. Applicant’s fingerprints were not found on the weapon. To connect applicant to the
murder weapon, the State presented testimony from inmate witnesses, one of whom testified
that he gave applicant the masking tape that was then used to make the murder weapon.
Specifically, this inmate-witness stated that applicant’s cell mate, Phillips, gave masking tape
to him and asked him to pass it along to applicant. To corroborate the inmate-witness’s story,
the State presented the expert testimony of Lisa Harmon Baylor, who testified that, through
the “science” of physical match comparison, she was able to identify the tape wrapped
around the handle of the weapon as having been torn off of one of the rolls at Phillips’s
workstation in the prison craft shop.
As to motive, the State’s theory was that applicant was upset because Officer Nagle
had written a disciplinary charge against applicant for having food in an area of the prison
where food was not permitted. See In re Pruett, Nos. 15-20222, 15-70011, 2015 WL
1840601, at *1 (5th Cir. April 23, 2015). Torn pieces of the disciplinary report were found
near Officer Nagle’s body after the murder. Id. At trial, applicant testified that Officer
Nagle tore up the report in applicant’s presence and that applicant then walked away, leaving
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Officer Nagle alive and well. Id. “[T]here was no physical evidence connecting [applicant]
to the murder.” Id. DNA testing revealed that only Officer Nagle’s blood was found on the
disciplinary report. Id.1
II. This Court Should Stay the Execution and Remand the Current Application
In his current application, applicant asserts that he is entitled to receive a new trial
because it is likely that jurors would not have convicted him had they been informed that the
“science” relied upon by the State’s expert has now been discredited. See T EX. C ODE C RIM.
P ROC. art. 11.073(b)(2). Applicant now contends that, according to a 2009 Forensic Report
issued by the National Academy of Sciences, the “science” of physical match comparison,
which was the basis for the State’s expert’s testimony regarding the matching of the masking
tape, has now been discredited. Applicant asserts, therefore, that had the jurors at his trial
known that the science relied upon by the State has now been discredited, it is more likely
than not that they would not have convicted him of capital murder.
Applicant’s complaint that junk science was used to convict him is precisely what the
Legislature had in mind when it enacted Article 11.073 to permit post-conviction challenges
premised on relevant scientific evidence that was not available to be offered by a convicted
1
Although applicant has previously asserted that his lack of DNA on the report suggests that
he did not commit this offense, I conclude that the lack of DNA is not evidence of his innocence
when only the victim’s DNA was found on the report. See Pruett v. State, No. AP-77,037, 2014 WL
5422573 (Tex. Crim. App. Oct. 22, 2014) (upholding trial court’s determination that it was not
reasonably probable that applicant would have been acquitted at his trial on the basis of
“inconclusive” results of DNA and palm-print testing). I am also unpersuaded that applicant is
entitled to relief from his conviction because the State did not take better care in preserving the
physical evidence against him.
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person at the convicted person’s trial or that contradicts scientific evidence relied on by the
State at trial. See T EX. C ODE C RIM. P ROC. art. 11.073(a). Article 11.073 states, “A court may
grant a convicted person relief on an application for a writ of habeas corpus if: (1) the
convicted person filed an application, in the manner provided by Article 11.07, 11.071, or
11.072, containing 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 ascertainable 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; and (2) the court makes the findings described by Subdivisions (1)(A) and
(B) and also finds that, had the scientific evidence been presented at trial, on the
preponderance of the evidence the person would not have been convicted.” See id. art.
11.073(b).
Although applicant plainly appears to have made a prima facie case that junk science
was used to convict him, there is a question as to whether he has timely asserted his claim.
The factual basis underlying applicant’s claim is the 2009 Forensic Report, but he did not
present his claim in his earlier post-conviction writ applications that were filed after 2009.
With respect to the applicable timing requirements, Article 11.073 states, “For purposes of
. . . Section 5(a)(1), Article 11.071 [the statutory bar on subsequent writs] . . . a claim or issue
could not have been presented previously in an original application or in a previously
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considered application if the claim or issue is based on relevant scientific evidence that was
not ascertainable through the exercise of reasonable diligence by the convicted person on
or before the date on which the original application or a previously considered application,
as applicable, was filed.” See id. art. 11.073(c) (emphasis added). “In making a finding as
to whether relevant scientific evidence was not ascertainable through the exercise of
reasonable diligence on or before a specific date, the court shall consider whether the
scientific knowledge or method on which the relevant scientific evidence is based has
changed since the applicable trial date or dates, for a determination made with respect to an
original application[,] or the date on which the original application or a previously considered
application, as applicable, was filed, for a determination made with respect to a subsequent
application.” See id. art. 11.073(d) (emphasis added).
Today, this Court declines to consider the merits of applicant’s claim and instead
dismisses this application as an abuse of the writ on the basis that the pleadings fail to satisfy
the requirements of Article 11.071, § 5(a) and Article 11.073(c). See id. art. 11.071, § 5(a),
11.073(c). The theory supporting dismissal is that applicant’s current habeas counsel could
have, but did not, raise this new-scientific-evidence claim in his 2014 writ application
because, at that time, he should have had access to the 2009 National Academy of Sciences
Report that he uses as his evidentiary support for his current claim. The Court thus concludes
that consideration of applicant’s claim is procedurally barred.
By focusing solely on the statutory language in Subsection (c), this Court has failed
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to consider the meaning of that language when viewed in the broader context of the entire
statutory scheme, and it has read terms into the statute that are not in its plain language. The
statute requires either this Court or the habeas court to make “a finding as to whether relevant
scientific evidence was not ascertainable through the exercise of reasonable diligence on or
before a specific date.” See id. art. 11.073(d). Typically, findings are made by a habeas court
after a full consideration of the evidence in the record, which would suggest that the case
should be remanded to the habeas court for that to occur. Alternatively, if this Court is to
make that finding, which would be contrary to our ordinary approach to applications for writs
of habeas corpus, this Court only has pleadings before it, and we have not yet filed and set
this case to decide it on the merits, so a finding at this stage based on mere pleadings would
be inappropriate. Furthermore, although it is true that applicant relies on a 2009 report that
predated his earlier applications, I cannot conclude that the date on which a report was issued
is alone enough to show that this relevant scientific evidence was, as a matter of law,
“ascertainable” through the exercise of “reasonable diligence” when applicant filed his
earlier applications for post-conviction writs. See id. In any event, the statute is unclear as
to whether it requires a “finding” from the habeas court or from this Court with respect to the
timeliness of the Article 11.073 claim, and this Court should grant a stay to examine the
meaning of the statute through a written opinion.
I also note that, by dismissing applicant’s new-scientific-evidence claim based on his
pleadings alone, this Court reads a term into this new-science law that does not appear in the
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statutory language. This Court effectively holds today, for the first time since the statute’s
effective date of September 1, 2013, that a case will be dismissed if an applicant fails to
provide evidence making a prima facie case that relevant scientific evidence was not
ascertainable through the exercise of reasonable diligence on or before a specific date. See
id. Although typically this Court has required that type of pleading to overcome the
procedural bar on subsequent writs, that type of pleading requirement, applied in the present
context, appears to run contrary to the legislative intent to liberally permit post-conviction
challenges to convictions based on junk science. As of now, this Court has issued only one
opinion addressing Article 11.073, Ex parte Robbins, and a motion for rehearing is pending
in that case. See Ex parte Robbins, No. WR-73,484-02 (Tex. Crim. App. Nov. 26, 2014).
Because the meaning of the temporal requirements of this statute are a matter of first
impression before us, this Court should grant applicant’s motion to stay the execution to fully
consider whether it is this Court or the habeas court that should determine whether an
applicant has pleaded facts to make a prima facie showing of “reasonable diligence” to
secure the new-science evidence, whether such a pleading requirement exists at all in this
context, and whether a habeas court rather than this Court must make a finding on the
question of reasonable diligence as part of the trial court’s findings and conclusions as to the
merits of a complaint. There are far too many unanswered questions with respect to the
meaning and application of Article 11.073 at this juncture to permit a person to be executed
for capital murder in a case in which it appears that junk science was used to corroborate the
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inherently questionable inmate testimony.
To further explain why this Court should step back and permit applicant to further
develop his arguments, it should be noted that even as early as 2004, the trial court that heard
applicant’s initial application for a writ of habeas corpus made findings of fact that
“fundamental and material violations of the Constitution, the Rules of Evidence, and the trial
court’s pretrial discovery” occurred in this case, and it recommended “that the applicant’s
conviction be set aside.” See Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. 2005) (per
curiam). During the last legislative term, again concerned that trials like those that occurred
here should not be happening in Texas, the Legislature passed the Michael Morton Act to
ensure that defendants would receive discovery of the evidence the State had in its possession
so that they could prepare a defense against it. See T EX. C ODE C RIM. P ROC. art. 39.14. In
rejecting the trial court’s recommendation that applicant be granted a new trial based on
discovery violations that occurred even before the passage of the Michael Morton Act, this
Court held that, because the Due Process Clause confers upon defendants a right to be
informed about the existence of exculpatory evidence, it does not require the prosecution “to
‘reveal before trial the names of all witnesses who will testify unfavorably.’” See Pruett, 207
S.W.3d at 767. This Court further determined that, as “for the trial court’s conclusion that
the failure to reveal the inculpatory statements also violated the rules of evidence and the trial
court’s discovery order, such violations, even if they occurred, would not be grounds for
relief on habeas corpus.” Id. Although this Court accurately decided the case under then
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existing law, the Legislature’s continued interest in addressing the particular problem that
the trial court here found so compelling that it recommended a new trial in 2004 should give
us pause before summarily rejecting applicant’s present complaint.
III. Applicant’s Second Application Should be Reopened by this Court Sua Sponte
to Address His Allegations of a Due Process Violation by the Use of False Evidence
I would grant applicant’s motion to stay his execution and sua sponte reopen the
second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged
a due process violation by the use of false evidence. Ex parte Pruett, No. WR-62,099-02
(Tex. Crim. App. Dec. 10, 2014) (not designated for publication). This Court determined that
the subsequent application failed to satisfy the requirements of Article 11.071, § 5(a), and
the Court dismissed it. See id.; T EX. C ODE C RIM. P ROC. art. 11.071, § 5(a). I dissented to
that dismissal on the basis that applicant had made a prima facie showing that his claims
should have been remanded to the trial court for consideration. Ex parte Pruett, No. WR-
62,099-02 (Alcala, J., dissenting). Applicant complained that “due process was violated
when the State failed to disclose deals that had been made with the inmate witnesses that
testified during guilt/innocence and failed to correct false testimony.” Applicant explained
that his due-process rights were violated by the State’s failure to disclose that a deal had been
made with Harold Mitchell and also by the State’s failure to correct Mitchell’s false
testimony. Furthermore, applicant contended that his “right to due process was violated by
the State’s failing to disclose that inmates who desired to testify on Pruett’s behalf were
threatened and physically assaulted.” Applicant argued that the factual basis of this claim
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was unavailable on the date that he filed his initial application. I concluded that applicant
had pleaded a prima facie case that his due-process rights were violated and voted to remand
that complaint for consideration on whether there was a factual basis showing that this claim
was unavailable during his initial application, and, if so, addressing the merits of this
complaint.
Applicant’s assertions that the State used the false testimony of inmate-witnesses is
precisely what the Legislature was concerned about when it passed statutes to regulate this
type of evidence after applicant’s trial took place. In 2009, the Legislature enacted Article
38.075, which states, “A defendant may not be convicted of an offense on the testimony of
a person to whom the defendant made a statement against the defendant’s interest during a
time when the person was imprisoned or confined in the same correctional facility as the
defendant unless the testimony is corroborated by other evidence tending to connect the
defendant with the offense committed.” See T EX. C ODE C RIM. P ROC. art. 38.075(a). Because
this enactment reflects a legislative determination that testimony by one inmate against
another is inherently unreliable, this Court should also recognize that reality and remand this
case to the habeas court for consideration of applicant’s claims that the inmates gave false
testimony against him.
IV. Applicant’s Second Application Should be Reopened by this Court Sua Sponte
to Address His Claim of Ineffective Assistance of Habeas Counsel
I would grant applicant’s motion to stay his execution and sua sponte reopen the
second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged
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that his original habeas counsel was ineffective for failing to raise a claim of ineffective
assistance of trial counsel. See Ex parte Pruett, No. WR-62,099-02. This Court determined
that the ineffective-assistance-of-trial-counsel claim failed to satisfy the requirements of
Article 11.071, § 5(a), and the Court dismissed it. See id.; T EX. C ODE C RIM. P ROC. art.
11.071, § 5(a). I dissented to that dismissal on the basis that applicant had made a prima
facie showing that his claims should have been remanded to the trial court for consideration,
relying on the reasoning in my dissent in Ex parte Buck and suggesting that inadequate
representation by habeas counsel in failing to raise a potentially meritorious claim should
serve as a basis to overcome the bar on subsequent writs. 418 S.W.3d 98, 109 (Tex. Crim.
App. 2013) (Alcala, J., dissenting); Ex parte Pruett, No. WR-62,099-02 (Alcala, J.,
dissenting).
In my dissenting statement on applicant’s second application for a writ of habeas
corpus, I noted that applicant had presented new, prima facie evidence of a change in his
sentencing profile, such as that he was the victim of sexual abuse as a child by his mother for
an extended period of time, that his mother prostituted him to men, and that his extreme
poverty required him and his mother to dig through dumpsters to look for food and to sleep
in parks due to homelessness. Given the substantial volume of mitigating evidence that had
emerged since the time of applicant’s trial, I concluded that applicant had presented a prima
facie case of ineffective assistance of trial counsel, worthy of remanding to the habeas court
for consideration of that claim on the merits.
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V. Conclusion
I do not reach the ultimate merits as to whether applicant has presented grounds on
which habeas relief should be granted. Rather, I decide only that applicant has presented,
both in the earlier application and in the current application, an adequate basis upon which
to make a prima facie case that should be remanded to the habeas court for full consideration
of the merits. Given the multitude of the allegations of constitutional violations in this case,
I respectfully dissent from the Court’s dismissal of the application and to this Court’s denial
of the motion to stay applicant’s execution.
Filed: April 24, 2015
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