Court of Criminal Appeals No.

WR-50,961-10
Trial Court Case No. 8701

EXPARTE IN THE 2!51 DISTRICT COURT

RODNEY REED, IN

APPLICANT BASTROPCOUNTY, TEXAS

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATIONS

In this post-conviction writ of habeas corpus, the Court has been tasked

with gathering and reviewing evidence concerning three claims set forth

below and the State's laches defense. The CoU1·t has extensively considered

the entire record of this case from its trial through the 10 day evidentiary

hearing, at which the Court was able to observe witnesses and assess thefr

credibility concerning Applicant's claims. This CoU1·t recommends that all

relief sought by the Applicant be denied.

FINDINGS OF FACT

The Facts Presented at Trial

1. A thorough review of the evidence presented at the trial of the
Applicant's case is essential to adequately address the issues raised in
the application filed. The following excellent summary of the evidence
is found in Ex parte Reed 271 S .W.3d 698, 702-12 Tex. Crim. App.
2008).

Page 1 of 2
Filed 9 :·.13 ~~m
OCT 312021
Sarah Loucb
Olstflct Clerk, Bastrop County
 Stacey Lee Stites's partially clothed body was discovered on the
side of a desolate country road in Bastrop County, Texas on April 23,
1996.

Stacey and her mother, Carol Stites, moved to Bastrop from

Smithville in 1995 after Stacey graduated from high school. After
briefly working for a car dealership in Bastrop, Stacey began working
at the Bastrop H.E.B., a grocery store, as a cashier and bagger in
October 1995. In January 1996, Stacey and her mother moved to the
nearby town of Giddings so that Stacey could be with her fiancee,
Jimmy Fennell. Fennell, who h ad completed the police academy at the
Capital Area Planning Counsel Organization (CAPCO) in October
1995, was hired as a patrol officer with t he Giddings Police Department
in December.

With a long-term interest in law enforcement, Fennell had

previously been employed by the Bastrop County Sheriffs Office as a
jailer. Carol described Stacey and Fennell as inseparable since they
began dating a few weeks after meeting at the Smithville Jamboree in
May 1995. By late December 1995, the two were engaged.

Stacey, Carol, and Fennell moved into an apartment complex

just outside Giddings. Stacey and Fennell shared a n apartment on the
second floor of the apartment building, and Carol lived in a separate
one-bedroom apartment downstairs.

With a big church wedding planned for May 11, 1996, Stacey
transferred into the produce department at H.E.B. to earn more money.
The new assignment required her to report to work at 3:30 a.m. to
stock produce for the day. Normally, she would wake up between 2:45
to 2:50 a.m. and take anywhere from five to twenty minutes getting
ready to leave for work; she would dress in her H.E.B. uniform, which
consisted of blue pants and a red shirt with an H.E.B. insignia on the
front. Typically, she would wear a white T-shirt and carry the red shirt
with her on the way out the door, along with a plastic cup of juice or
water. Although Stacey had access to Carol's white or gray Ford Tempo,
she routinely drove Fennell's red Chevrolet S-10 extended-cab truck to
work. Carol's car was unreliable and had broken down on the road in
the past. When commuting to work, Stacey would take Highway 290 to
Highway 21 and then Loop 150/Chestnut Street, over the railroad
tracks into Bastrop. The drive took approximately twenty-five to thirty
minutes. When she finished her shift in the early afternoon, Stacey

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would usually go to Carol's apartment, take a nap, and then get up a nd
prepare things with Carol for the upcoming wedding.

After leaving work on April 22, 1996, the day before she died,
Stacey arrived at Carol's apartment early in the afternoon. She ate
lunch and took a nap. Fennell came home from work a few hou rs later,
and having borrowed Carol's Ford Tempo, Fennell returned Carol's
extra set of car keys to Carol by placing them on a shelf in her
apartment. Carol designated the extra set as Stacey's set. The three
then briefly talked about their schedules for the following day. Stacey
was scheduled to be at work at 3:30 a.m., and Fennell was not
scheduled to work. Fennell a nd Stacey had planned to go to the
insurance agent and to pick out flower s for the wedding cer emony after
Stacey got off of work. When Fennell suggested driving Stacey to work,
Carol offered to drive him to Bastrop to meet Stacey so that Fennell
could sleep in. However, Fennell declined Carol's offer, stating that he
would drive Stacey to work. Fennell t hen left in his truck to coach a
lit tle-league-baseball team with his friend and coworker , Officer David
H all. He returned between 8:00 and 8:30 p.m. Stacey met Fennell
outside of Carol's apartment, and according to Carol, the two then r an
upstairs laughing "as h ard as they could."

When Fennell and Stacey returned to their apartment, they

showered together. Although Stacey was taking birt h-control pills, the
two did not have sexual intercourse because, at this point in her
prescription cycle, the vitamin pills she was taking allowed for a
greater possibility of pregnancy. The two also discussed t heir plans for
the next day for a second time. Abandoning their earlier plan, they
agreed that Stacey would take Fennell's truck to work, a nd that
Fennell would arrange to have Carol take him to meet Stacey in
Bastrop when she got off of work. Stacey then went to sleep at 9 p.m.,
while Fennell stayed up and watched the news.

The next morning, April 23rd, Andrew Cardenas, Stacey's

coworker in the produce departme nt, arrived at the Bastrop H.E.B.
around 3:30 a.m. and waited for Stacey in the parking lot. Cardenas
would usually wait in his car for Stacey to arrive so that they could
"keep an eye on each other, to make sure nobody was around and walk
inside th e stor e togeth er ... " Cardenas regarded Stacey as a punctual
employee, and when she failed to show up for work, he became
concerned. Cardenas eventually went into work to start his shift, but
he kept an eye out for Stacey.

Page 3of 4
 At 5:23 a.m., while on routine patrol, Officer Paul Alexander
with the Bastrop Sheriffs Department observed Fennell's truck parked
in the Bastrop High School parking lot. Mindful that the truck had not
been parked there during his previous patrol of the area and that there
were no other vehicles in the lot, Officer Alexander contacted the
dispatcher and requested a stolen-vehicle check. The dispatcher
reported that the vehicle was registered to an individual with the last
name Fennell. Although Officer Alexander knew Jimmy Fennell, he did
not know him well, and it did not enter his mind that the truck
belonged to Jimmy Fennell. When Officer Alexander looked inside the
cab with his flashlight, he noticed that the driver's seat was reclined
and that there were books and clothing on the seats. Outside the
driver's side door on the ground, Officer Alexander observed a small
piece of a broken belt with a buckle. After noting that there was no
shattered glass, that the ignition was intact, and that the driver's side
door was locked, Officer Alexander concluded that nothing was out of
order and returned to his patrol duties.

Still looking out for Stacey to arrive at work, Cardenas finally

decided to call Carol between 6:30 and 7:00 a.m. When Cardenas told
Carol that Stacey failed to show up for work, Carol became upset and
immediately yelled out for Fennell. Cardenas then went back to work,
and Carol called Fennell on the phone, waking him up. Frantic, Carol
told Fennell that H .E.B. called and told her that Stacey did not show
up for work. Fennell rushed down the stairs, putting on a shirt on the
way down. He told Carol to call authorities and tell them that he and
Carol were looking for Stacey. Carol had both sets of keys to her car, so
Fennell took Stacey's set and drove to Bastrop in Carol's Tempo to look
for Stacey. He drove to the H.E.B. and then returned to Carol's
apartment. He did not see any sign of Stacey or the truck. Meanwhile,
officers with the Bastrop Police Department were looking for Stacey,
and David Board, an investigator with the Department, called Carol to
ensure her that they were doing everything possible to locate Stacey.

At approximately 9:00 a.m., after authorities received the

missing-persons report, Ed Selmala, an investigator with the Bastrop
Police Department, was dispatched to the Bastrop High School parking
lot. Upon arrival, Investigator Selmala notified other law enforcement
officers, including Board, of the truck's location and requested
assistance. While numerou s investigators from the Bastrop Police and
Sheriffs Departments were photographing the truck and other pieces
of evidence, Officer Alexander was called back into work to explain why
he ran the license plate on the truck earlier that morning and to write
a report.

Page 4 of 5
 The truck was later taken to a local tow shop and held until it
could be transported to Austin so that members of the Texas
Department of Public Safety Crime Laboratory (DPS Crime Lab) could
process it for evidence. While the truck was at the tow shop in Bastrop,
authorities requested Fennell's presence to identify items found in and
outside of the truck. Fennell was specifically instructed not to touch
anything and to peer into the cab and identify anything that was not
supposed to be in the vehicle. Fennell observed several things in the
truck that were "out of the ordinary." First, one of the tennis shoes that
Stacey normally wore to work was on the floorboard of the passenger's
side of the truck. Second, there was a foamy substance resembling
saliva on the carpet covering the hump over the truck's transmission.
Third, there were broken pieces of green plastic in the console from the
type of cup that Stacey usually took with her in the truck. Fourth, the
driver's seat was laid back at a forty-five-degree angle. Fifth, the
driver's seatbelt was still buckled. And sixth, there was a large smudge
on the back window on the passenger's side. Fennell also identified
several items found outside the truck. First, there were carbon copies
of checks from his checkbook. And second, regarding the piece of the
belt with a buckle attached, Fennell told investigators that it was part
of the belt that Stacey normally wore to work. After this, Fennell
returned to his apartment complex in Giddings.

When the truck was delivered to the DPS garage in Austin, a

crime-scene team began to process it for evidence. The team stopped
their initial overview of the truck when Stacey's body was discovered
by Kenneth Osborn shortly before 3:00 p.m. on Bluebonnet Drive,
located off of FM 1141. Osborn, a real estate appraiser, was early for a
3:00 o'clock appointment and decided to drive on Bluebonnet Drive to
pick some flowers for his wife. He spotted Stacey's body among some
thorny brush in a ditch on the side of the road. When Osborn
approached Stacey's body, he realized that she was dead. He got back
into his car, stopped at a house nearby, called the police, and then went
back to Bluebonnet Road to wait for the police.

John Barton, an investigator with the Bastrop County Sheriffs

Department, was one of the first law-enforcement officers to arrive at
the scene. He covered Stacey's body with a green blanket to prevent
the media, circling above in a helicopter, from taking photographs. He
also closed off the crime scene and began to photograph the area and
Stacey's body. Shortly thereafter, Bastrop authorities, joined by Texas
Ranger L.T. Wardlow, who became the designated lead investigator
assigned to work with both the Bastrop Police and Sheriffs

Page 5 of 6
Departments, decided to call in DPS Crime Lab members to process the
scene.

The DPS crime-scene team arrived in Bastrop from Austin at

approximately 5: 15 p.m. Karen Blakley, who specialized in DNA and
serology, was designated the team leader by her coworker, Wilson
Young. Other members of the team, led by Blakley, included a trace
analyst, a photographer, a latent-print examiner, and a trainee in
serology and DNA. Detailing the condition of Stacey's body, Blakley
noted that Stacey was missing a shoe and that her white sock was
clean, indicating that she had not likely walked on an outside surface.
An H.E.B. name tag with the name "Stacey" written on it was found in
the crook of Stacey's leg, and a white T-shirt, which Fennell later
identified as belonging to him, was strewn over some brush near
Stacey's body. Stacey was clothed in a black bra and a pair of blue pants
with a broken zipper. Her visible green underwear was wet in the
crotch and bunched around her hips. Viewing this as indicative of a
sexual assault, Blakley tested for the presence of semen, and the initial
test yielded a positive result. Blakley then collected additional swab
samples from Stacey's vagina and breasts. Because rigor mortis had
set in, Blakley could not determine if Stacey had been anally
sodomized. "She was already very stiff, and in order for me to try to get
to the anal area I could possibly cause injury or further damage and
make it look like she had suffered something that she didn't."

According to Blakley, it "looked like a great force had been

applied [to Stacey's neck] ... because it was like an indentation but
red, like it had cut into her skin." Blakley concluded that the injury was
caused by a piece of webbed belt that was located near Stacey's body on
the side of the dirt road "[b]ecause it matched the pattern that was on
[Stacey's] neck." And when the piece of belt with a buckle found near
Fennell's truck at the high school was brought to the scene, Blakley
compared the two and concluded that they matched. Another
criminalist on the team designated to search for trace evidence
concurred with Blakley's determination, concluding that the pieces
matched. Going a step further , he also concluded that the belt had been
torn not cut.

Documenting ot her injuries to Stacey's body, Blakley observed

that there were scratches on her abdomen and arms, a burn from a
cigarette on her arm, and shallow wounds on her wrists and back that
looked like they were caused by fire-ant bites. Blakley also documented
a large amount of mucus that ran from Stacey's nose, down the side of
her face, and into her hair.

Page 60{ 7
 Terry Sandifer, the latent-fingerprint examiner, collected two
Busch beer cans that were located across the road from where Stacey's
body was discovered. When Sandifer processed the cans for fingerprints
at the lab, she discovered no suitable fingerprints to analyze.

After processing the scene, Blakley returned to the lab that

evening around 11:00 p.m. so that she could look at the substance on
the vaginal swabs under a microscope. She discovered intact sperm--
sperm heads with the tails still attached--that, in her opinion, indicated
that the sexual activity was recent. Her conclusion was based on a
published study finding that "26 hours is about the outside length of
time that tails will remain on a sperm head inside the vaginal tract of
a female." She immediately reported her finding to Ranger Wardlow.
Ranger Wardlow viewed the presence of semen as a "smoking gun,"
surmising that the evidence of sexual assault gave the perpetrator a
motive to kill. Ranger Wardlow theorized that identifying the man who
left the semen would lead to the discovery of Stacey's killer.

Dr. Robert Bayardo, the Travis County Medical Examiner,

conducted an autopsy on Stacey's body the following afternoon at 1:50.
He estimated that Stacey died on the 23rd of April at 3:00 a.m., give or
take a few hours, based on changes that occur in the body after death.
Dr. Bayardo noted that Stacey had pre- and post-mortem injuries. H e
differentiated between the two based on the absence of bleeding; once
the heart stops beating, there is no more bleeding and no more
bruising. The burn, which Blakley believed was caused by a cigarette,
occun-ed after Stacey died, as did several scratches, in Bayardo's
opinion. Although Stacey's skull showed no outward signs of injury,
when Dr. Bayardo looked inside the skull, he documented multiple
bruises that "had the appearance of injuries sustained by being struck
on the head with the finger knuckles with a closed hand." Comparing
the injury pattern on Stacey's neck with the pieces of webbed belt
collected by authorities, Dr. Bayardo concluded that the belt was the
murder weapon and that Stacey die d as a result of asphyxiation caused
by·strangulation. He estimated that asphyxiation takes three to four
minutes and that a person becomes unconscious within one to two
minutes.

Because of evidence indicating sexual assault, Dr. Bayardo took

vaginal swabs. Viewing the swabs under a microscope, he observed the
presence of sperm with both heads and tails. This, according to Dr.
Bayardo, indicated that the sperm had been introduced into Stacey's
vagina "quite recen tly." Continuing the sexual-assault exam, Dr.

Page 7of 8
Bayardo took rectal swabs. Viewed under a microscope, he identified
several sperm heads without any visible tails, which led him to report
the result of the test as negative. Sperm, according to Dr. Bayardo,
breaks down much faster in the rectum than it does in the vagina
because of the presence of other bacteria in the rectum. When
conducting a visual exam of Stacey's rectal area, Dr. Bayardo noticed
that her anus was dilated and that there were some superficial
lacerations on the posterior margin. In his opinion, this was consistent
with penile penetration, even though he did not entirely rule out the
possibility that the presence of sperm in the anus was the result of
seepage from the vagina. Utilizing his education and experience about
determining whether a particular injury occurred before or after death,
Dr. Bayardo concluded that Stacey sustained the injury to her anus at
or around the time of her death and that the penetration was therefore
not consensual.

Because Blakley had prior commitments, Young took over the

serological duties on the 24th . Young conducted two types of
Polymerase Chain Reaction (PCR) DNA testing, DQ-Alpha and D 1S80,
on Stacey's blood, the vaginal swabs taken by Blakley and Dr. Bayardo,
and the substance found on the crotch of Stacey's underwear. Young
conducted only one type of PCR DNA testing, DQ-Alpha testing, on the
anal swabs taken by Dr. Bayardo because the quantity of sample was
limited.

Every person receives one DQ-Alpha allele and one D 1S80 allele
from each parent; therefore, every person possesses two DQ-Alpha
alleles and two D 1S80 alleles. Stacey's blood possessed the DQ-Alpha
alleles of 1.2 and 4 and the D1S80 allele of 24, which meant that each
of her parents contributed a 24 D 1S80 allele to her genetic makeup.
On the male portion of the vaginal swabs taken by Dr. Bayardo, the
results showed DQ-Alpha alleles 1.2, 3, and 4 and D 1S80 alleles of 22
and 24. The presence of three DQ-Alpha alleles, according to Young, is
a common occurrence when there is carryover of DNA from either of
the two donors that cannot be entirely eliminated during the testing
process and does not affect the validity of the results. The 22 D 1S80
allele was foreign to Stacey. Regarding the vaginal swab taken by
Blakley, the male portion showed DQ-Alpha alleles of 1.2 and 3 and
D1S80 alleles of 22 and 24. This signified no carryover from Stacey
and indicated that the semen donor possessed the DQ-Alpha alleles of
1.2 and 3 and the D 1S80 alleles of 22 and 24. Testing on the male
portion from the rectal swabs indicated the presence of DQ-Alpha
alleles 1.2, 3, and 4. While there was carryover, the 3 DQ-Alpha allele
was foreign to Stacey. Testing of the male potion of DNA from the

Page 80( 9
crotch of Stacey's underwear showed the presence of DQ-Alpha alleles
1.2 and 3 and D 1S80 alleles 22 and 24, indicating the absence of any
carryover. Finally, testing on the swabs from Stacey's breasts showed
the presence of DQ-Alpha alleles 1.2, 3, and 4 and D 1S80 alleles of 22
and 24. The 3 DQ-Alpha allele and the 22 D 1S80 allele were foreign to
Stacey, even though there was carryover. Given the results, Young
concluded that there was a single semen donor.

Young also participated in processing the truck on the 25th,

accompanied by Sandifer, the latent-print examiner, and Ranger
Wardlow. Blakley joined them the next day when she returned to work.
In processing the truck and the carbon copies of Fennell's checks found
outside the truck for prints, Sandifer did not discover anything
remarkable. Sandifer could find only a few items with suitable prints.
When she examined the prints, she was either unable to make a match
or identified the prints as belonging to either Stacey or Fennell. Young
focused on looking for the presence of blood or semen but discovered
none. And although Young collected other items, including a portion of
the saliva or mucus substance that Fennell previously noticed on t he
carpet over the transmission hump, he did not discover anything
significant t hat would help in identifying the perpetrator. Blakley,
having observed Stacey's body, noted that the substance on the
transmission hump looked similar to the mucus that had flowed out of
Stacey's nose.

Young, Ranger Wardlow, and Blakley all took note of the

reclined position of the driver's seat and that the driver's seatbelt was
fastened. Ranger Wardlow specifically noted that the lap portion of the
belt looked like someone sat on it because it was in a downward bow.
The three then tested whether it was possible to pull a person from the
vehicle while the seatbelt was fastened. Putting Blakley, who was
similar in height and weight to Stacey, in the driver's seat with and
without the lap belt on, Ranger Wardlow and Young took turns pulling
her from the vehicle by either the feet or the shoulders. In each
instance, Ranger Wardlow and Young were able to remove Blakley
from the truck. Further, when Young, who was six-foot-two, sat in the
reclined driver's seat, he noticed that he had a clear view out of the
back window of the truck in the rearview mirror. When DPS completed
processing the truck, it was returned to Fennell. Fennell immediately
transported it to the dealership and traded it in.

Over the course of t he next eleven months, authorities focused

their investigation on people that Stacey knew, and with a $50,000

Page 9 of 10
reward offered by H.E.B., numerous leads and information poured in.
For instance, a newspaper-delivery person reported that Stacey's body
was not on Bluebonnet Drive when he drove by the site where her body
was found at 4:00 a.m. In a ll, officials interviewed hundreds of people,
including former classmates, boyfriends, and coworkers, as well as
Stacey's friends and coworkers at H.E.B. Over twenty-eight male
suspects were identified, some immediately and some during the
ensuing investigation. Each suspect was asked to consent to give blood,
h air, and saliva samples. With the exception of one, Brian Haynes, all
of the suspects offered their consent and provided the samples.
Although Haynes refused to consent, he was compelled to provide
samples after authorities obtained a search warrant. Authorities also
requested and obtained samples from Officer Hall. Because of his
friendship with Fennell, Officer Hall was viewed as a suspect. Upon
request, he voluntarily provided samples.

Hall, who lived approximately one block away from Fennell's

apartment, had an alibi-that he was home with his wife, Carla Hall,
when Stacey disappeared. When investigating Officer Hall, Ranger
Wardlow found no evidence refuting Officer Hall's alibi. The alibi,
coupled with DNA testing excluding Officer Hall, led Ranger Wardlow
to conclude that Officer Hall had not been involved in Stacey's death.

As the last known person to see Stacey alive, Fennell was

deemed a suspect from the outset. Despite this, authorities never made
an effort to search Fennell's apartment. Fennell, however, was
vigorously interrogated on several occasions by Ranger Wardlow, who
was, at various times, joined by Investigators Selmala, Barton, or
Board. Fennell also voluntarily provided authorities with a blood
sample, and even though DNA testing excluded him as the donor of the
semen, authorities tried to make a case against him anyway. Ruling
out the possibility that Fennell used Carol's Ford Tempo during the
commission of the offense because Fennell had to retrieve the keys from
Carol on the morning of the 23rd before he went looking for Stacey,
Ranger Wardlow investigated alternative methods of transportation
that Fennell could have used. Toward that end, Ranger Wardlow
examined taxi records and the vehicle mileage on all of the cars
belonging to the Giddings Police Department. This investigation
revealed nothing, and officials believed that Fennell could not have
walked the thirty-five miles from Bastrop to Giddings between 3:00
a.m. and 6:45 a.m. Authorities also canvassed Fennell's apartment
complex, looking for anyone that could shed some light on anything
relating to Stacey or Fennell on the morning of the 23rd. No one
reported being awake and about that morning. Finding no evidence to

Page 10 of 11
support Fennell's involvement m the cnme, authorities eventually
eliminated him as a suspect.

David Lawhon, Brian Haynes's brother, emerged as a viable

suspect shortly after Stacey was killed when authorities discovered
that he murdered a woman named Mary Ann Arldt in Elgin. Ardlt was
murdered by Lawhon a few weeks after Stacey was killed, and officials
learned that Lawhon had bragged about killing Stacey. Because the
two cases bore some similarities, authorities homed in on Lawhon in
investigating Stacey's case. A few people informed authorities that
there had been a relationship between Lawhon and Stacey, but
authorities were unable to confirm any connection between the two.
Indeed, a mutual friend never had any indication from either Lawhon
or Stacey th at they knew one another. Like Fennell, Lawhon was
excluded as t he donor of the semen through DNA analysis and was
later eliminated as a suspect.

Investigator Selmala also became a s uspect in August 1996 after

he committed suicide in his home. Ranger Wardlow investigated his
death . A note written by Investigator Selmala's girlfriend was found by
his body. The note revealed that he was distraught over his
relationship with his girlfriend. Taking into account his knowledge
about Investigator Selmala, which included the note and the
investigation into Stacey's death, Ranger Wardlow found no reason to
conclude that Investigator Selmala had any involvement in Stacey's
death . Indeed, the investigation into Stacey's death revealed no
connection between Investigator Selmala a nd Fennell or Investigator
Selmala and Officer Hall. The only common thread between
Investigator Selmala and the other two was that all three were law-
enforcement officers. Nevertheless, Ranger Wardlow directed that a
blood sample be drawn from Semala during Selmala's autopsy and
submitted to DPS for DNA testing. Ranger Wardlow made this
decision anticipating that someone might try to link Investigator
Selmala's suicide to Stacey's murder. If such an allegation ever arose,
Ranger Wardlow would then be able to give an answer--DNA testing
cleared Investigator Selmala as a suspect.

All of t he other potential suspects that were investigated were

excluded as a result of DNA testing.

Eventually, officials received information that led them to look

into Reed, an African-American who was approximately the same
height as Young, as a suspect. Throughout their investigation, officials
found nothing that indicated t hat Stacey knew Reed. Reed lived in the

Page 11 of 12
City of Bastrop on Martin Luther King Drive near the railroad tracks.
Several of Reed's family members and friends, as well as his girlfriend,
lived nearby. Bastrop High School is also located near the railroad
tracks, about sixth-tenths of a mile from Reed's house. The location of
Reed's home was significant to authorities because Fennell's truck was
found nearby at the Bastrop High School. Authorities had, early in the
investigation, theorized that the location was convenient for the
perpetrator.

Reed was frequently seen by Bastrop patrol officers walking in

the area near his home late at night. When he worked the night shift
in 1995 through the early part of 1997, Officer Michael Bowen would
see Reed almost every night between 9:00 p.m. to 3:00 a.m. or 4:00 a.m.
When Officer Bowen saw Reed, Reed was usually at Long's Star Mart,
located near Reed's house on Loop 150/Chestnut Street and Haysel
Street. Bowen also saw Reed walking along the railroad tracks on more
than one occasion. Officer Steven Spencer reported seeing Reed in the
early morning hours walking near Long's Star Mart and the All Star
Grocery, which was located at Loop 150/Chestnut and Pecan Street.

Officials contacted DPS to inquire about whether Reed had a

DNA sample on file with the state database, which includes compiled
DNA from convicted sexual offenders. When they learned that there
was a sample, they requested a comparison between Reed's DNA and
the DNA from the vaginal swab taken by Blakley. Michelle Lockhoof, a
specialist in DNA and serology with DPS, conducted DQ-Alpha and
D 1S80 PCR testing on the two samples. Reed's DQ-Alpha alleles were
identified as 1.2 and 3 and his D1S80 alleles were identified as 22 and
24. When compared with the sample taken from Stacey, Reed could not
be excluded as the donor of the semen. In Young's opinion, 99.8% of the
Caucasian population, 99.8% of the African-American population, and
99.92% of the Hispanic population would be excluded as the donor of
the semen.

Investigator Board interviewed Reed after learning that the

preliminary DNA results could not exclude him as a suspect.
Investigator Board withheld the results of the DNA testing and
Mirandized Reed. Reed waived his rights and gave a written
statement. In it, he stated, "I don't know Stacey Stites, never seen her
other than what was on the news. The only thing that I do know is what
was said on the news is that she was murdered." Pursuant to a search
warrant, blood was drawn from Reed and turned over to the DPS lab.

Page 12of 13
 Lockhoff subjected the sample to a more discriminating type of
DNA testing, Restriction Fragment Length Polymorphism (RFLP).
Once again, Reed could not be excluded as the donor of the semen when
four individual sites were tested. Regarding the statistical frequency in
which Reed's RFLP profile would appear in the population, Lockhoff
calculated that it would be one in 590 million for the Caucasian
population, one in 330 million for the African-American population,
and one in 3 billion for the Hispanic population. Combining the results
of the PCR and RFLP testing, the frequency in which Reed's genetic
profile would be present in the world's population is one in 5.5 billion
for the Caucasian, African-American, and Hispanic populations.

Reed's father and three brothers were then excluded as possible

donors through DQ-Alpha and D1S80 DNA testing.

Because the testing conducted by DPS could not exclude Reed,

DPS sought the assistance of LabCorp, an independent lab, to conduct
additional testing. Meghan Clement, the director for the forensic-
identity-testing department, received DNA samples from Stacey and
Reed and conducted PCR testing, which included testing on genetic
sites of the DNA strand that are distinct from those considered during
DQ-Alpha and D 1S80 testing. Looking at ten different sites on the
male fraction of the substance on the vaginal swab taken from Stacey,
Clement could not exclude Reed as the contributor of the semen; in fact,
the sample matched Reed's genetic profile. The probability of randomly
selecting an unrelated individual with this profile is approximately one
in 449,000,000 for the Caucasian population, one in 46,800,000 for the
African-American population, and one in greater than 5,500,000,000
for the Hispanic population. Combining some of the additional PCR
testing with the previous DQ-Alpha and D 1S80 results, only one person
in the world's population would have this particular genetic profile.
Testing on the male portion of the substance from the rectal swab
revealed DQ-Alpha alleles of 1.2 and 3 and, therefore, matched Reed's
DQ-Alpha profile. Recalling her prior experience working on sexual-
assault cases for ten-and- a-half years, Clement noted that she never
found intact sperm more than twenty-four hours after commission of a
vaginal-sexual assault and that sperm breaks down faster in the rectal
area than in the vaginal vault.

Reed was charged with capital murder in May 1997. At trial, to

raise reasonable doubt during the guilt phase, Reed mounted a two-
prong challenge to the State's evidence. First, Reed pointed to the
possibility that another person, particularly Fennell and Lawhon, had
committed the offense. And as a secondary theory, Reed focused on

Page 13of 14
showing that he had a romantic relationship with Stacey and that his
semen was therefore present in Stacey's body because of consensual
intercourse.

To prove a romantic relationship between Stacey and Reed,

Reed's defense team called Iris Lindley, a longtime friend of Reed's
parents, to testify. In early 1996, Lindley was sitting on the porch of
Reed's house visiting with Reed's mother. A young woman with brown
hair pulled in front of the house in a gray truck, walked up to the porch,
and asked if Reed was home. When Reed's mother told the young
woman that Reed was not home, the young woman asked Reed's
mother to tell Reed that "Stephanie" had come by. Clarifying the name,
Lindley said that it was either "Stacey or Stephanie." When Lindley
was shown a picture of Stacey, she stated that Stacey looked like the
young woman who had come by Reed's house that day. While Lindley
first testified that she formulated the impression that Stacey and Reed
were dating, she conceded on cross-examination that she h ad no such
knowledge.

To establish that Lawhon knew Stacey, Reed's attorneys called

Jose Coronado, who had worked with Lawhon at Walmart and with
Stacey in t he produce department at the H.E.B., to testify. Coronado
stated that he once saw Stacey a nd Lawhon talking in the Walmart
parking lot a nd that later, when he and Stacey worked together at
H .E.B., Stacey told him that she and Lawhon had dated and that
Lawhon was "sort of a player." On cross-examination , the State asked
Coronado whether it would surprise him to know that Lawhon was
dating a woman n amed Christie Macy and that she would frequently
meet him in the Walmart parking lot. Coronado stated that he did not
know about Macy or that she met Lawhon in the parking lot.

Supporting Coronado's testimony, Cynthia Jones, a friend of

Lawhon's, testified that she and her boyfriend were with Lawhon and
Stacey at a party in Elgin and t hen again at Smithville Jamboree in
1995. Jones said that Lawhon introduced Stacey as "his girl" for the
first time at the Jamboree.

Scott Parnell furthered the defense's strategy to implicate

Lawhon when he testified that Lawhon confessed to killing Stacey.
While drinking at a bar one night in 1996, Lawhon told Parnell that he
strangled Stacey with either his or her belt and that Stacey had pretty
blue eyes before she closed them. On cross-examination, the
prosecution questioned Parnell about a signed written statement that
Parnell made at the Sheriffs Department in which Parnell stated that

Page 14 of 15
Brian Haynes made the confession. Explaining the evident
discrepancy, Parnell testified that both Lawhon and Haynes had
confessed. Additionally, when the prosecution inquired about the
motive behind his testimony, Parnell admitted that he knew about the
$50,000 reward offered by H .E.B.

To rebut the evidence supporting any relationship between

Stacey and Lawhon, the State called two of Stacey's best friends from
high school to testify. Cathy Vacek went to the Jamboree with Stacey
in 1995 and stated that she would h ave known if Stacey dated Lawhon
and had gone with him to the Jamboree. Sherry Lastovica went to the
Jamboree with Stacey on Friday night in 1995 and stated that after
Stacey attended the Jamboree for a second time the following day,
Stacey told Lastovica that she had met Fennell. Neith er woman knew
anything about a relationship between Stacey and Lawhon.

The State a lso offered testimony from Lawhon's wife. She

specifically remembered the night that her husband murdered Arldt.
On that night, when Lawhon failed to come home, she locked the screen
door, which did not have a key, so that she would know when he got
home. When he finally returned home, the two then argued about it.
She recalled that the argument ensued because it was unusual for him
to come home so late. When asked whether anything like that
happened on April 23rd, Law hon's wife remembered the day because it
was her son's first birthday, and she stated that nothing unusual
happened.

Turning their attention to Fennell, Reed's defense team devoted

a considerable amount of time highlighting the shortcomings of the
investigation into Fennell by officials. Specifically, they were able to
call the jury's attention to the fact that the lion's share of information
provided to officials about Stacey's whereabouts before she died,
Stacey's routine and habits, and the items in F ennell's truck was given
by Fennell himself. They also emphasized that officials did not search
Fennell's home, thereby precluding the possibility of ever discovering
evidence that may have implicated Fennell.

Tami Renee Hannath, Stacey's high-school friend, cast Fennell

as controlling and possessive. She testified that when she and Stacey
were on the phone, making arrangemen ts for Stacey to come to
Smithville for a visit, Fennell came home. Stacey then told him about
the upcoming plans while Hannath remained on the phone and then
the phone was disconnected.

Page 15 of 16
 Finally, Reed's defense team presented its own DNA expert, Dr.
Elizabeth Ann Johnson from Technical Associates Incorporated. Dr.
Johnson's DQ-Alpha and D 1S80 DNA test results on the vaginal swabs
taken by Blakley and the fluid found in Stacey's underwear were
consistent with those obtained by DPS. And although Dr. Johnson
attempted to test the rectal swab, she determined that there was not
enough DNA to conduct accurate testing. Dr. Johnson's DQ-Alpha
testing on the saliva from breast swabs taken by Blakley yielded the
same results as the previous testing conducted by DPS. On the swab
taken from Stacey's left breast, testing indicated 1.2, 4.1, and 3 alleles,
and on the swab taken from Stacey right breast, testing indicated 1.2,
3, and 4.1 alleles. Dr. Johnson conceded that in all of the sixteen sites
tested in this case, Reed could not be excluded as the donor of the semen
and saliva found on Stacey's body. Further, Dr. Johnson did not dispute
the statistics that Lockhoff devised as a result of her testing.

To quell the prosecution's theory that Stacey had been anally

sodomized before her death, Dr. Johnson was questioned about vaginal
drainage. Dr. Johnson testified that vaginal drainage, which allows
semen to be deposited in surrounding areas, may occur when a body is
moved around after intercourse. She opined that when there has been
an ejaculation in the rectal area, there should be a lot of sperm because
a full ejaculate contains hundreds of millions of sperm. And regarding
the decomposition of sperm, Dr. Johnson stated that she was unaware
of any difference in the rate of decomposition of sperm in the vagina
versus that in the rectum. In her experience, she obtained better sperm
samples from rectal swabs. On cross-examination, Dr. Johnson
admitted that a male can deposit a small amount of sperm without
ejaculating when there is penetration and that trauma to the anal area
should be considered when determining whether there has been
penetration. Ex parte Reed, 271 S.W.3d 698, 702-12 (Tex. Crim. App.
2008).

2. On May 18, 1998, Applicant, Rodney Reed, was found guilty of the
capital murder of Stacey Stites. On May 28, 1998, Applicant was
sentenced to death.

Present Procedural History

3. The conviction challenge presently before the Court comes from

Applicant's tenth state habeas application, filed on November 11,
2019.

Page 16of 17
 4. In Applicant's tenth application, he raised four grounds for relief:

Ground One: The State suppressed favorable, material evidence known

to Richard Derleth, Wayne Fletcher, and Jim Clampit;

Ground Two: Jimmy Fennell testified falsely when he denied murdering

Stacey Stites, denied knowing Applicant, and said his relationship with
Stacey Stites was good;

Ground Three: Applicant's trial attorneys were ineffective for failing to

adequ ately investigate Stites's time of death, the length of time sperm
remains morphologically intact, and evidence of a prior consensual
relationship between Applicant and Stites; and

Ground Four: Applicant is actually innocent of capital murder.

5. Because Applicant's tenth application was filed subsequent to his

initial one, the Court of Criminal Appeals considered it under Section
5 of Article 11.071 of the Code of Criminal Procedure. Exparte Reed, No.
WR-50,961-10, 2019 WL6114891, at *1 (Tex. Crim. App. Nov. 15, 2019).

6. On November 15, 2019, the Court of Criminal Appeals remanded three

grounds from the tenth application:

After reviewing the application, we find that Applicant's

Brady [Ground One], false testimony [Ground Two], and
actual innocence [Ground Four] claims satisfy the
requirements of Article 11.071 § 5. Accordingly, we
remand those claims to the trial court for further
development. Ex parte Reed, 2019 WL 6114891, at *2.

7. On April 15, 2020, the State filed its answer. It asserted that Applicant's
Brady claim (Ground One) was barred by laches and otherwise
meritless; that Applicant's false testimony claim (Ground Two) was
barred by laches, non- retroactivity principles, procedurally defaulted,
and meritless; and that Applicant's actual innocence claim (Ground
Four) failed. Answer 1-60.

8. On June 17, 2021, this Court entered an order designating Applicant's

Brady (Ground One) false testimony (Ground Two), and actual
innocence (Ground Three) claims for factu al development, along with
t h e State's laches defense. Mem. Ruling & Order 1- 2. The Court
determined that credibility is crucial in t his case, so it set the matter
for a live, in-person evidentiary hearing at whichthe Rules of Evidence
apply. Id. at 2.

Page 17 of 18
9. Over the course of n early two weeks, starting on July 19, 2021, t he Court
heardlive testimony and admitted numerous exhibits, including the
records from all from Applicant's trial and all prior state habeas
proceedings.

GROUND ONE-SUPPRESSION OF FAVORABLE, MATERIAL

EVIDENCE

Applicant's Allegation

10. Applicant claims that t hree deputy sheriffs were aware of favorable,
exculpatory information that was not disclosed by the State. Appl. 77-
83. First, Richard Derleth, a then-Bastrop County Deputy Sheriff, was
supposedly told by unnamed and unknown HEB employees that Stites
and Fennell fought. Id. at 79-80. Second, Charles Wayne Fletcher, also
a then-Bastrop County Deputy Sheriff, claims to have observed
relationship difficulties between Stites and Fennell, heard Fennell say
that h e believed Stites was unfaithful and having a n affair with a black
ma n, and observed odd behavior by Fennell at Stites's funeral and
burial services. Id. at 80-81. Third, Jim Clampit, a then-Lee County
Deputy Sheriff, asserts that h e overheard Fennell say at Stites's
funeral t hat she got what she deserved. Id. at 81-82. Applicant claims
this information is material because Fennell would not have waived his
Fifth Amendment privilege and testified for the State, or trial counsel
would have impeached Fennell if h e did testify and rebutted evidence
that F ennell and Stites were happily engaged. Id. at 82-83.

Factual Conclusions

Richard Derleth

11. Applicant did not call Richard Derleth to testify at the evidentiary
hearing despite the Court's admonition that "credibility of the
t estimony is crucial to this court's resolution of these fact issues." ODI
at 2.

12. The Court makes a negative credibility determination concerning

Derleth because h e did not testify, because he waited decades to
bring forth his"recollection," and because, as a peace officer, h e did not
ensure that investigators on Stites's case, or those handling it
postconviction, knew of his "recollection."

13. The Court finds Derleth's "recollection" suspect becau se it is from

decades ago and is nonspecific as to who told him about a supposed
alert system at HEB a nd who he later told about that system.

Page 18of 19
14. The Court does not believe that Derleth received information from
HEBemployees concerning a system designed to alert Stites when
Fennell arrived at HEB.

15. There is no evidence that Derleth was part of the investigation into
Stites's murder or that he told anyone involved in the investigation.

Charles Wayne Fletcher

16. The Court makes a negative credibility determination concerning

Fletcher because he waited decades to bring forth his "recollection,"
and because, as a peace officer, he did not ensure that investigators on
Stites's case, or those handling it postconviction, knew of this
"recollection."

17. The Court finds Fletcher's recollection suspect because it is from

decades ago, because it conflicts with the recollection of Etta Wiley,
who the Court finds credible, and because it conflicts with the
recollection of Fennell.

18. The Court finds Fletcher's recollection suspect because, despite his
claim thathe had a gut feeling about Fennell's involvement in Stites's
murder, 2.RR.278, he never told his then-wife, Wiley, about these
suspicions or interactions withFennell, and he behaved contrary to
such suspicion by supporting Fennell, 2.RR.179-81, including going to
Stites's burial.

19. The Court finds Fletcher's recollection suspect because, when he

testified, he recalled that Curtis Davis was at the barbecue where
Fennell supposedly expressed his concern over Stites's infidelity but
did not mention that in his affidavit and had just found out that Davis
had died. 2.RR.287.

20. The Court credits Fletcher's testimony that he was not involved in the
investigation and that he told no one involved in the investigation
about his "recollection." 2.RR.288, 292.

21. The Court finds Fletcher's testimony suspect because, as he admitted,

his wifehas done a lot of research in the case, and it influenced his
coming forward. 2.RR.295-96.

22. The Court finds Fletcher's testimony suspect because he believes in the
conspiracy theory that Ed Selmala was murdered despite the Texas
Rangers finding Selmala's death to be a suicide. 2.RR.296-97.

Page 19 of 20
23. The Court does not believe that Fennell told Fletcher about his
supposed suspicion that Stites was having an affair with a black man.

24. The Court does not believe Fletcher's recollection that Fennell and
Stites werefighting.

25. The Court puts little stock into Fletcher's recollection that Fennell was
behaving oddly during Stites's memorial and burial.

26. Generally, where Fletcher and Fennell's testimony differ, the Court
finds Fennell's testimony to be more credible and, thus, finds
Fletcher's testimony to be uncredible.

Jim Clampit

27. The Court makes a negative credibility determination concerning

Clampit because he waited decades to bring forth his "recollection,"
and because, as a peace officer, he did not ensure that investigators on
Stites's case, or those handling it postconviction, knew of this
"recollection."

28. The Court makes a negative credibility determination concerning

Clampit because he improperly testified for a friend while in uniform
and because the Texas Parks and Wildlife Department determined
that he committed perjuryduring that testimony. 2.RR.25-30; SX 16

29. The Court finds Clampit's recollection suspect because it is from

decades agoand because of Clampit's admission that his memory "is
not as clear as it should be." 2.RR.37.

30. The Court finds Clampit's testimony suspect because, as he admitted,

he haspaid attention to the publicity surrounding the case, including
Fennell's convictions in Williamson County, and it influenced his
coming forward.2.RR.13-14, 20, 22-23.

31. The Court credits Clampit's testimony that he was not involved in the
investigation and that he told no one involved in the investigation
about his "recollection." 2.RR. 15, 19--22.

32. The Court finds Clampit's testimony suspect because he didn't think
that Fennell's supposed statement that Stites "got what she deserved,"
which "shocked" him, was important until 2019, when there was
significant media coverage about the case. 2.RR.13-1, 20, 36.

33. The Court finds that the Lee County Sheriffs Office had no involvement
in theinvestigation, as Clampit admitted, 2.RR.24, and as credibly

Page 20 of 21
 testified to by Rocky Wardlow, 6.RR.169-70, and Rodney Meyer,
6.RR.36.

34. Generally, where Fletcher and Fennell's testimony differ, the Court
finds Fennell's testimony to be more credible and, thus, finds
Fletcher's testimony to be uncredible.

Laches

35. The Cow·t finds that one of the lead investigators, John Barton, in the
murderof Stacey Stites has passed away. SX.33.

36. The Court finds that another of the investigators, Ronnie Duncan, in
the murder of Stacey Stites, and who was the first investigator to talk
to Fennell after Stites was reported missing, has dementia. 6.RR.16.

37. The Court finds that the police officer who found Fennell's red pickup
truck and half the murder weapon in the Bastrop High School, Paul
Alexander, haspassed away. SX.32.

38. The Court finds that the medical examiner who conducted the only
autopsy ofStites, Roberto Bayardo, has dementia. SX.31.

39. The Court finds that Fennell's friend, Curtis Davis, Jr., and primary
witness at the evidentiary hearing in the eighth state habeas
proceeding, has passed away. SX.35.

40. The Court finds that a work friend of Stites, Suzan Byars, has passed
away. SX.34.

41. The Court finds that a friend of Stites, Michael Kirby, has passed away.
SX.36.

42. The Court finds that the SANE nurse, Karen Woodward, who
performed a sexual assault examination on Vivian Harbottle, has
passed away. SX.40.

43. The Court finds credible the expert testimony of Dr. Deborah Davis
regardingthe deterioration of memory over time, and its ability to be
influenced and distorted by pre-event bias and post-event information
exposure. 7.RR.22-228.

44. The Court of Criminal Appeals has found that Applicant has abused
the writ on numerous occasions. See, e.g., Reed v. State, 541 S.W.3d 759,
778 (Tex. Crim.App. 2017).

Page 21 of 22
45. The Court of Criminal Appeals has described Applicant's
postconviction litigation as a "piecemeal approach." Reed u. State, 541
S.W.3d 759, 778 (Tex. Crim. App. 2017).

46. The Court of Criminal Appeals affirmed a finding that Applicant's

request forpostconviction DNA testing was done to unreasonably
delay the execution of his sentence or the administration of justice.
Reed u. State, 541 S.W.3d 759, 777-80 (Tex. Crim. App. 2017).

47. The United States Court of Appeals for the Fifth Circuit found that
Applicant's post judgment, district court submissions were untimely.
Reed u. Stephens, 739F.3d 753, 768 n.5 (5th Cir. 2014).

48. Most of Applicant's evidence in his seventh, eighth, ninth, and tenth
applications has come about at or around the time of his execution
settings inMarch 2015 and November 2019.

49. Applicant's seventh state habeas application was filed in February

2015, a little more than two weeks before his March 2015 execution
setting.

50. Applicant's eighth state habeas application was filed in June 2016, a
little morethan a year after his March 2015 execution setting.

51. Applicant's ninth state habeas application was filed in June 2018, a
little morethan three years after his March 2015 execution setting.
52. Applicant's tenth state habeas application was filed in November 2019,
a little more than one week before his November 2019 execution
setting.

GROUND '!WO-UNKNOWING USE OF FALSE TESTIMONY

Applicant's Allegation

53. Applicant alleges that the State unknowingly presented false testimony
at trialwhen Fennell testified that he did not kill Stites. Appl. 83-84.
He also claims that Fennell lied at trial when he denied knowing
Applicant. Id. at 84. He finally claims that Fennell offered false
testimony when he said that his relationship with Stites was "good."
Id. at 84-85. He claims that this false testimony is material because it
would have assisted in presenting his consentdefense. Id. at 85-86.

Page22of 23
Factual Conclusions

Jimmy Fennell's credibility

54. In general, the Court finds Fennell's testimony credible and gives it full
and proper weight.

55. The Court finds credible Fennell's testimony th at the State offered
nothing inreturn for his testimony and that he was not testifying with
any sort of belief, understanding, or expectation of a return benefit.
5.RR.44.

56. The Court finds credible Fennell's testimony that he and Stites were
happy together, were excited about their upcoming wedding, and were
planning for their future together. 5.RR.176-78.

57. The Court finds credible Fennell's account of April 22 and 23.
5.RR.182-96. Where his account materially differs from his trial
testimony, the Court creditshis trial testimony because, as Fennell
credibly testified, his memory would have been better twenty-five
years ago. 5.RR.183.

58. The Court finds credible Fennell's representation that he closed out his
bank account because, when police found his vehicle after Stites's
disappearance, henoticed missing checks. 5.RR.194--95.

59. The Court credits Fennell's testimony about the emotional loss he
suffered when Stites was murdere d and the effect it had on Fennell's
demeanor aroundthe time of her death. 5.RR.196- 97. The Court also
credits Fe nnell's testimony-corroborated by Thelma Fennell,
9.RR.140-47, and Mark Brown, 9.RR.210- that he was t aking Xanax
around the time of and during the viewing, funeral, and burial, which
made him feel numb and created a flat affect. 5.RR.244--45.
60. The Court credits Fennell's testimony that law enforcement considered
him the prime suspect and treated him as such immediately after
Stites murder. 5.RR.198-99.

61. The Court also credits Fennell's testimony that he failed the polygraph
tests because he felt responsible, albeit indirectly, for Stites murder in
that he did not drive her to work that morning and he failed to protect
her even though hewas in law enforcement. 5.RR.199- 201.

62. The Court notes that in 2008, Fennell pled guilty to kidnapping and
impropersexual contact with a person in cust ody and served day-for-
day of his sentence.The Court finds credible his testimony that while
incarcerated, he devoted hislife and time to becoming the Christian

Page 23 of 24
 faith and earned a bachelor's degree inministry and master's degree in
t heology. 5.RR.205-06.

63. The Court notes that to the degree Applicant would point to this 2008
conviction as proof that Fennell is Stites's real murderer, Applicant's
sexual assaults of the Connie York, Lucy Eipper, minor A.W., Caroline
Rivas, and Vivian Harbottle, as well as his attempted assault of Linda
Schlueter-as all six offenses were attested to and corroborated during
the punishment phase ofApplicant's trial- are closer in temporal
proximity, and in the cases of Harbottle and Schlueter, more closely
resemble the facts surrounding Stite's murder. SX.21, Vols.57-63.
Thus, they would carry greater weight in determining Applicant's
culpability than Fennell's conviction that occurred over a decade after
Stites's murder does in determining Fennell's credibility, should any
be admissible.

64. The Court finds credible Fennell's testimony that he elected not to
testify under the Fifth Amendment at the evidentiary hearing in 2017
on the advice of his attorney, because he was still serving his prison
sentence, and because the stress he was under affected his ability to
remember at t hat time. 5.RR.212- 13.

65. The Court finds credible Fennell's testimony that, since leaving prison,
he continues to serve in the Christian faith, serving as an ordained
minister, as aminister at his church, and as a minister through a
recovery program, Celebrate Recovery. 5.RR.214-16.

66. The Court credits Fennell's testimony, and SX 20, that he did not work
at SPJST after 1994. The Court further believes Fennell's testimony
that he did not threaten Stites in front of Ruby Volek. 5.RR.166, 169-
70.

67. The Court credits Fennell's testimony that he and Stites did not
socialize much, that Fletcher did not visit he and Stites at their
apartments, and that he never admitted to Fletcher that he knew
about Stites's supposed affair witha black person. 5.RR. 175.

68. The Court credits Fennell's testimony, over the hearsay statements
from Cynthia Schmidt, that he spoke to Gary Joe Bryant in a
threatening manner towards Stites nor intimated knowledge of a
supposed affair. 5.RR.178.

69. The Court credits Fennell's testimony that he never had the type of
public arguments as described by several of Applicant's witnesses,

Page 24 of 25
 such as Richard Scroggins, Paul Espinoza, Suzan Hugen, and Brenda
Dickenson. 5.RR.133-34

70. The Court further credits Fennell's testimony over Schmidt's where he
deniedsaying at the funeral that at least Stites got to wear here
wedding dress. 5.RR.198.

71. The Court credits Fennell's testimony, over Clampit's uncredible

account, thathe never said Stites got what she deserved. 5.RR.197.

72. The Court credits Fennell's testimony, over the uncredible testimony of
ArthurSnow, that Fennell was never in the Aryan Brotherhood, that
he neverconfessed to Snow that he killed Stites, and that he never
confessed to Snow knowledge of Stites having an affair with Applicant.
5.RR.207-10. The Court further credits Fennell's testimony that his
status as a former police officer was widely known to both inmates and
prison guards. 5.RR.207-08. The Courtalso credits Fennell's testimony
that he had friends in prison that were a different race and/or ethnic
background than himself, a fact that cuts directly against his
purported membership in the Aryan Brotherhood. 5.RR.208.

73. The Court credits Fennell's testimony, over the uncredible testimony
of Michael Bordelon, that Fennell knew Bordelon, but that he never
confessed toBordelon that he killed Stites nor that he had knowledge
of Stites having an affair with Applicant. 5.RR.210-12.

74. The Court credits Fennell's testimony that his relationship with Stites
was good despite having occasional arguments.

75. The Court credits Fennell's testimony that he did not know, or know
of, Applicant prior to his arrest for the murder of Stites.

76. The Court credits Fennell's testimony that he did not kill Stites.

Credibility of State's witnesses

77. The Court credits Crystal Dohrmann's testimony that supports the
testimony from trial that Fennell and Stites had a good relationship,
and her testimony that Fennell exhibited extreme grief when Stites
was murdered. 9.RR.119- 22. Further, Dohrmann's testimony is
consistent with what she told a reporter for the Austin-American
Statesman on April 24, 1996. SX.55.

78. The Court credits Thelma Fennell's testimony that supports the
testimony from trial that Fennell and Stites had a good relationship,
that Fennellexhibited extreme grief when Stites was murdered, th at

Page 25 of 26
 he was taking Xanaxat t he time of and during Stites's funeral, and
that she and Fennell's father were with him during the viewing and
the funeral. 9.RR.140-47.

79. The Court credits Mark Brown's testimony that supports the testimony
from trial that Fennell and Stites had a good relationship, and his
testimonyregarding Fennell's demeanor and state of mind on the day
of the funeral andon the way to Corpus Christi. 9.RR.154-56, 159-62.

80. The Court credits Debra Oliver's testimony that supports the testimony
from trial that Fennell and Stites had a good relationship, her
testimony that Fennell exhibited extreme grief when Stites was
murdered, and her testimony regarding Fennell's behavior at the
viewing and funeral. 9.RR. 194-204, 206-214.

81. The Court notes that on Stites's new employee information sheet for
HEB, in the column that enquired about marital status, she wrote
"going to get married." SX.102.

82. The Court credits Ron Haas's testimony t hat Stites took a job in the
produce section, which required physical labor and demanding hours,
because that position came with an increase in pay and she wanted to
save that money to help pay for her wedding to Fennell. 10.RR.24.

83. The Court credits Augustin Moreno's testimony that Stites was excited
about her upcoming wedding with Fennell. 10.RR.41-42.

84. The Court credits Sandy Sepulveda's testimony that Stites was excited
about her upcoming wedding with Fennell. 10.RR.55-56.

85. The Court credits Diantha Lee's testimony that Stites was excited
about her upcoming wedding with Fennell. 10.RR. 73, 79.

86. As stated in Ground One, t he Court finds credible the expert testimony
of Dr .Deborah Davis regarding the deterioration of memory over time,
and its abilityto be influenced and distorted by pre-event bias and post-
event information exposure. 7.RR.22-228.

Credibility of Applicant's witnesses

87. For the reasons stated in Ground One, the Court makes a negative
credibility determination concerning Derleth and any purported
testimony he may have offered.

88. For the reasons stated in Ground One, the Court finds F letcher's
testimony uncredible.

Page 26of 27
89. For the reasons stated m Ground One, the Court finds Clampit's
testimony uncredible.

90. Rubie Volek testified about an encounter with Stites and Fennell where
they purchased insurance. 2.RR.308-09. The Court finds this occurred
nineteen years prior to when she first recounted it and twenty-five
years prior to her testimony; thus, it is inherently uncredible. The
Court also finds that the facts surrounding her account, 2.RR.306-07,
315-16, were discredited by Fennell's testimony regarding his
employment, 5.RR.167-70, and SX 20. The Court further finds that
Volek's assumption thatFennell made a serious threat on Stites's life,
2.RR.309, is speculative at best,and thus, inherently unreliable. The
Court also finds that Volek did not come forward with any of this
information until she heard about Applicant's scheduled execution in
2015. 2.RR.310.

91. For the reasons stated below in Ground Four, the Court finds Arthur
Snow's testimony uncredible.

92. For the reasons stated below in Ground Four, the Court finds Michael
Bordelon's testimony uncredible.

93. Victor Juarez testified that one day while driving on the road, he saw
Stites and Applicant together in the parking lot of either a Dairy Queen
or a Walmart.3.RR.139. The Court finds that he worked at the HEB
with Stites. 3.RR.138. The Court further finds that, following Stites's
murder, the Bastrop HEB management encouraged employees to
speak with police if they knew anything, 3.RR.149; the Bastrop HEB
a llowed officers to conduct on-siteinterviews, 10.RR.26; the Bastrop
HEB provided on-site grief counseling, 10.RR.25; the Bastrop HEB
provided extra security, 10.RR.25; and the Bastrop HEB offered a
$50,000.00 reward, 5.RR.21; 10.RR.27- 28. Despite this, the Court
finds that Juarez did not tell anyone about this at the time of Stites's
murder. The Court further finds that Juarez did not come forward until
aroundthe time he saw a special about this case on the Dr. Phil Show.
3.RR.152. The Court thus finds Juarez's testimony inherently
unreliable. The Court further finds Juarez's testimony unreliable
because the identification supposedly happened while he was in a
moving vehicle, and he cannot remember any otherdetails about the
identification except that occurred in front of either a Dairy Queen or
a Walmart.

94. Rebecca Randall testified that she worked at HEB with Stites,
3.RR.157- 58; that she saw Applicant and Stites "chitchatting" in the

Page 27 of 28
 HEB where Stites worked "a couple of times," 3.RR.159; and that she
saw Stites playing basketball with several people, one of whom, from
a distance, looking like Applicant, 3.RR.160. The Court finds that
Randall, like Juarez, did not tell anyone about this at the time of
Stites's murder, despite working at the Bastrop HEB. The Court
further finds that Randall did not come forward untilover twenty years
later. Thus, her testimony is unreliable. The Court also findsthat her
account of Stites and Applicant speaking openly in the HEB where
Stites worked is directly contradicted by testimony from Applicant's
other witnesses that describe Stites as afraid of Fennell finding out
about thesupposed affair. 4.RR.279; 5.RR.10.

95. Paul Espinoza testified he worked at the Bastrop HEB with Stites.
3.RR.176-77. He testified that he witnessed an encounter between
Stites and Fennell at the HEB. 3.RR.180. Espinoza testified that
Fennell approached Stites quickly, that he appeared to scold Stites, and
that Espinoza saw Stites later crying in the breakroom. 3.RR.180- 88.
The Court again finds that Espinoza did not tellanyone, at the HEB or
otherwise, at the time of Stites's murder about this encounter. The
Court also finds that Espinoza did not come forward until almost
twenty-five years later, and only after seeing the "newspapers and the
media." 3.RR.184. The Court also credits Fennell's testimony that this
did notoccur. Thus, the Court finds Espinoza's testimony uncredible.

96. Suzan Hugen, nee Nichols, also worked at the Bastrop HEB with
Stites. 4.RR.12-13. Hugen testified that Stites called off her bridal
shower, 4.RR.15; that she witnessed an exchange between Fennell and
Stites at the HEB that seemed hostile, 4.RR.15; and that Stites
introduced her to Applicant while speaking with him at the HEB,
4.RR.17-18. The Court again finds that Hugen did not tell anyone, at
the HEB or otherwise, at the time of Stites's murder about these
events. The Court also finds that Hugen did not come forward until
almost twenty-five years later. Thus, the Court finds her testimony
uncredible. The Court also finds that her account of Stites and
Applicant speaking openlyin "Action Alley," 4.RR.34, of the HEB
where Stites worked, is directly contradicted by testimony from
Applicant's other witnesses that describe Stites as afraid of Fennell
finding out about the supposed affair. 4.RR.279; 5.RR.10. The Court
also finds that her account of Stites cancelling the bridal shower is
directly contradicted by the testimony of Debora Oliver, Stites's sister.

97. Richard Scroggins testified that he saw Fennell and Stites have an
altercationin front of a Whataburger where Fennell used profane and
threatening language towards Stites. 4.RR.168-70. Scroggins testified
that he did not knowwho either person was at the time. 4.RR.177. He

Page 28of 29
 stated the first time he knewit was Fennell was when he saw his
picture in a 2005 article in the Austin Chronicle. 4.RR.165. The Court
finds Scroggins's testimony uncredible. The Court first notes that
Brian Seales, an investigator for the Office of the Attorney General,
credibly testified that there was only one article involving Fennell in
2005, and it did not contain a picture. 7.RR.12-13. He further
testified that beginning in 2001, the first instance of an article in the
Austin Chronicle containing a picture of Fennell was in 2008
discussing his arrest. Id. The Court further notes that Scroggins
testified it was this picture that joggedhis memory of these events,
which inherently impairs the credibility of the testimony. The Court
further notes that Applicant's counsel, not Scroggins, wrote the
affidavit that Applicant presented to the CCA and to this Court.
4.RR.175. The Court also credits Fennell's testimony that this did not
occur.

98. Brent Sappington testified that he knew of Fennell and Stites because
his father William Sappington lived in the apartment under theirs at
the Rolling Oaks Apartments. 4.RR.190-91. He testified that on one
occasion visiting his father, they heard a "commotion" upstairs that
sounded like fighting, presumably between Fennell and Stites.
4.RR. 194. He further testified that after Stites's death, his father told
a Giddings police officer, Garnett Danewood, and the District Attorney
for Lee County, Ted Weems, about this. 4.RR.197. Sappington stated
that they told his father "that they already had their suspect, that they
didn't need nobody's help, that they -- to mind your own business, to
hush his mouth." 4.RR.198. The Court notes that Ted Weemstestified
that William Sappington did approach him and told him about the
argument William Sappington heard. 10.RR.13. Weems said that he
explained to Willaim Sappington that he was not a part of the
investigation, but that heshould go to the appropriate authorities and
report what he knew. Id. However,Weems denied ever telling William
Sappington to mind his business or hush his mouth. 10.RR.14. The
Court finds Weems to be credible. Thus, the Court finds credible that
parts of Brent Sappington's testimony that can be corroborated by Ted
Weems. However, the Court find uncredible Sappington'srecitation of
the discussion with Weems where it differs. The Court also finds
uncredible Sappington's own judgment about the degree or level to
which Fennell and Stites argued. The Court also notes that
Sappington's testimony differs from his declaration in that Sappington
was able to recount important details on the stand that were not in his
declaration. This also makes uncorroborated parts of his testimony
highly su spect, and thus, uncredible.
99. Vicki Sappington's testimony is a recitation of much of Brent
Sappington's testimony. 4.RR.210- 21. However, her testimony is

Page 29 of 30
 based entirely on hearsay.As such, Brent Sappington's testimony is
the better evidence, to the degree that it is credible. As such, the Court
does not consider Vicki Sappington's testimony in its decision here.

100. Cynthia Schmidt worked at Giddings Police Department (GPD) when

Fennellbegan as an officer there. 4.RR.224-26. She testified that she
did not like Fennell and that he gave her "the willies." 4.RR.226-27.
She also testified about a comment that Fennell supposedly made at
Stites's viewing while standing over her casket. 4.RR.234. She further
testified that another officer at GPD believed that Fennell murdered
Stites. 4.RR.238. She stated that she had a meeting with Texas
Rangers investigating Stites's murder and that, despite telling them
she did not think Fennell was the murderer, she tried to convey
otherwise through non-verbal cues. 4.RR.233-34. The Court finds
Schmidt's testimony uncredible. The Court notes that her own
impression about Fennell's personality, even if it is to be credited, has
no real bearing on the issues before the Court. The Court finds that
Schmidt's testimony regarding the funeral is bellied by the testimony
of Thelma Fennell, Debora Oliver, and Jimmy Fennell, all of whom the
Court finds credible. The Court finds that Schmidt's testimony
regarding Gary Joe Bryant is rank hearsay and, thus, inherently
unreliable. It also conflicts with the credible testimony of Nathan
Lapham, an officer with GPD, that Bryant was not conducting an
independent investigation into Stites's murder and it would have been
improrper for Bryant to do so. 6.RR.24-25. Like many of Applicant's
witnesses, Schmidt waited an unreasonable amount of time before
coming forward with this information, especially considering she
worked for law enforcement. The Court finds Schmidt's account of her
conversation with the Texas Rangers to be suspect and uncredible.

101. Alicia Slater worked with Stites at the Bastrop HEB. 4.RR.273-74. She
testified about a conversation she had with Stites in the breakroom of
the HEBshortly before Stites was murdered. 2.RR.277. During this
conversation, Stitesapparently told Slater that she was not excited to
get married because she was "sleeping with a black man named
Rodney," that she was scared Fennell wouldfind out about the affair,
and that Stites knew she need to be careful so that Fennell did not find
out. 4.RR.278- 79. The Court finds Slater uncredible. TheCourt finds
her testimony is inherently uncredible in that Stites is worried that
Fennell would discover the supposed affair and knew that she had to be
careful,and yet, Stites would share this information with Slater, whom
according to Slater, Stites did not know well, 4.RR.279, 303. Slater
gave a statement to theBastrop Police Department in 1995 and did not
share this information with them at that time. 4.RR.275, 280. She also

Page 30of 31
 did not share this information withfriends or family, even many years
later. 4.RR.281. The Court also finds that Slater only came forward
after reading and watching much of the media surrounding this case.
2.RR.283, 292, 296-97. The Court notes that Slater wasalso internally
inconsistent in her testimony in that in 1995, she was so adamant to
not be involved in the case that she apparently lied to police officers,
but yet in 2019, she was comfortable appearing on the Dr. Phil show.
4.RR.292. The Court also notes that she received a monetary benefit
from theDr. Phil show for coming forward over two decades later.
4.RR.311-12. The Court finds that Slater had become so intimately
familiar with this case through the media that she believed details
about the case to be true that areotherwise wholly unsupported by the
record. See, e.g., 4.RR.299 (asserting thatblack skin was found under
Stites's fingernails). Slater further has no memoryof several events at
the HEB that occurred shortly after Stites's murder- such as
management encouraging cooperation with law enforcement, the
$50,000.00 reward, the pink ribbons memoriam, the increased
presence of lawenforcement-which were testified to by Ron Haas and
corroborated by severalother HEB employees, including Applicant's
own witnesses. 4.RR.304.

102. Calvin Horton is Stites's cousin. 4.RR.319. He testified that sometime

in October 1995, he saw Stites and a black man, who he now believes
to be Applicant, leaving Dairy Queen. 4.RR.321-22. He claimed to call
out to Stites,but she did not acknowledge him. 4.RR.321. The Court
finds that Horton did not recount these events until nineteen years
after Stites's murder, 4.RR.327,and as such, it is inherently uncredible.
The Court further finds that he did nottell anyone at the time simply
because, "I mean, what would I tell them." 4.RR.325. The Court also
notes that, like many of Applicant's witnesses, Horton did not come
forward until after watching media regarding Applicant's case.
4.RR.324, 328. The Court finds that Horton's testimony regarding
statements made to him by his father and Carol Stites, the victim's
mother, are rank hearsay and, thus, inherently unreliable. The Court
also finds that Horton's testimony regarding Carol Stites is belied by
her testimony at Applicant's trial and during Applicant's prior
evidentiary hearing on his eighthstate habeas application. The Court
credits Carol Stites's testimony in both instances.

103. Brenda Dickinson also worked at the Bastrop HEB with Stites. 5.RR.9.
She testified that Stites was having second thoughts about the
wedding, that Stiteswas scared of how jealous and controlling Fennell
had become, that Fennell would come to HEB and yell at Stites, and
that workers in the store would alert Stites if they saw Fennell so that
she could hide. 5.RR.10- 12. Dickenson further testified that she

Page 31 of 32
 witnessed Stites talking to a black man in the HEB, whom Stites
introduced as "Rodney." 5.RR.13. Despite almost fainting at work
when she heard about Stites's murder, 5.RR.13, she did not tell
anyone, including law enforcement, about these events at that time.
She claimed that she was simply never interviewed by law
enforcement and that she didn't think this information wasimportant
at the time, stating: "I was just her friend. I had nothing to do with ftE
case." 5.RR.14, 17. However, she also recalled that Ron Haas, her
manager, told employees to cooperate with police. 5.RR.28. She also
testified that the $50,000.00 reward offered by HEB was common
knowledge among employees. 5.RR.21. Thus, the Court finds her
testimony is inherently inconsistent. The Court also finds that her
testimony was inconsistent from the affidavit that she executed.
5.RR.28. The Court notes that counsel for Applicant wrote her
affidavit for her. 5.RR.17. The Court finds that her testimony that
everyone atHEB "kept pretty quiet" about the case, such that she did
not know that Applicant was arrested for the murder, is inconsistent
from Applicant's other witnesses who testified that the events
surrounding the murder and the case were widely known at HEB.
5.RR.32.

104. To the degree necessary to resolve Ground Two, the Court also finds
credits the testimony of Drs. Dana and Farley over the testimony of
Drs. Baker and Davis for the reasons discussed in Ground Four.

Procedural Default

105. The Court finds that facts relating to this claim were known to the
Applicant during his trial and before the filing of his other applications
for habeas relief.

106. The Court finds that during trial, Applicant pointed the finger at
Fennell as an alternative suspect.

Laches

107. The Court enters the same factual findings regarding laches as
discussed in Ground One.

Page 32of 33
 GROUND FOUR-ACTUAL INNOCENCE
Applicant's Allegation

108. Applicant alleges that he is actually innocent. He utilizes some of the

evidence in his prior state habeas applications, combined with the
evidence presented for this first time in this application, to assert actual
innocence. Stated broadly,Applicant claims that the State's forensic
case is flawed and that Fennell, notApplicant, killed Stites. Appl. 90-
93.

Factual Conclusions

109. The Court of Criminal Appeals h as repeatedly considered Applicant's

allegations of innocence in the context of Article 11.071, Section 5, and
found them wanting, including drawing credibility determinations
that this Court accepts.

Inconsistent theories

110. Applicant has suggested multiple alternative suspect s as Stites's

murderer, Fennell, Lawhon, and an unknown, dark-skinned man. Ex
parte Reed, 271 S.W.3d 698, 746 (Tex. Crim. App. 2008). The
inconsistency between these alternative suspects diminishes th e
credibility of Applicant's actual innocence theory.

111. Applicant has su ggested multiple alternative co-conspirators in

assisting Fennell with the murder of Stites, including Curtis Davis,
David Hall, and other, unknown individuals. The inconsistent and
scattershot approach diminishes the credibility of Applicant's actual
innocence theory.

112. Applicant has been inconsistent in how h e has treated some of the
alternativeco-conspirators. While previously suggesting that Davis
and Hall helped Fennell commit the murder of Stites, he called them
as his witnesses at the evidentiary hearing in the eighth habeas
proceeding and did not accuse t h em of conspiracy. This inconsistent,
and opportunistic, treatment of supposed co- conspirators diminishes
the credibility of Applicant's actual innocence th eory.

113. Applicant's current theory concerning Stites's time of death is

inconsistent with the theory he presented in his third habeas
application. There, Applicant claimed that Stites was alive between
4:45am and 5:30am on April 23, 1996, based on the testimony of
Martha Barnett. Ex parte Reed, 271 S.W.3d 698, 717, 719-20 (Tex.
Crim. App. 2008). Applicant now, based on his various experts, asserts

Page 33of 34
 that Stites was deceased "hours before 3:00am" (Dr. Baker); 6:00 pm to
10:00pm on April 22, 1996 (Dr. Spitz); before midnight on April 22,
1996 (Dr. Baden); and 9: 15 pm on April 22, 1996, to 1: 15 am on April
23, 1996 (Dr. Riddick). The inconsistency between Applicant's time-of-
death theories, together with the inconsistency between his own
experts, and shifting theories, diminishes the credibility of Applicant's
actual innocence theory.

114. Applicant's current theory concerning Stites's time of death is

inconsistent with his prior theory that time of death could not be
determined in this case because of a lack of details.

Applicant's credibility

115. Applicant executed an affidavit in 2014, attached to his seventh state

habeas application, claiming that he had a clandestine affair with
Stites and had sex with her late April 21, 1996, or early April 22, 1996,
i.e., a day before her murder.

116. Applicant's testimony via affid avit lacks credibility given that it was
produced for the first time 18 years after the events it claims occurred.

117. Applicant's 2014 affidavit claiming a clandestine affair is inconsistent

with his April 4, 1997 sworn statement to police, in which he stated:

"I don't know Stacey Stites. [N]ever seen her other than
what was on the news. [T]he only thing that I do know is
what was said on the news is that she was murdered."

118. Applicant's claim of having sex with Stites between the late hours of
April 21, 1996, and the early hours of April 22, 1996, is inconsistent
with what he told transport officers in 1998, including Rene
Maldonado, that he had last seen Stites a few days before her murder.

119. Applicant's specificity in 2014 about when and where he had sex with
Stites isinconsistent with what he told Austin American Statesman
reporters in 2001,that he had sex with Stites "the day or day and a half
before" her murder.

120. Applicant's affidavit references a supposed encounter with Fennell,

claiming that his cousin Chris Aldridge witnessed, that was found
unbelievable when relayed by Aldridge in the first state habeas
application. Applicant's recitation of an event found unbelievable
diminishes his credibility.

Page 34 of 35
121. Applicant has previously said he did not know a woman, Connie York,
who claimed that Applicant sexually assaulted her, only to change his
story that there was consensual sex when confronted with a claim of
biological evidence.

122. Applicant's testimony via affidavit is not reliable.

123. Applicant is not credible.

Credibility of other witnesses

124. The Court incorporates all credibility determinations made of

witnesses in Grounds One and Two here.

Supposed recantations

125. Applicant claims that Dr. Roberto Bayardo, Karen Blakely, and
Meghan Clement have recanted their testimony.

Roberto Bayardo

126. Applicant asserts that Dr. Bayardo recanted several portions of his
1998 trial testimony via a 2012 declaration.

127. Dr. Bayardo testified at trial that his time of death estimate was
exactly that, an estimate. His 2012 declaration does not withdraw th at
estimate.

128. Dr. Bayardo testified at trial that finding intact sperm from the vaginal
swab taken during Stites's autopsy meant the sperm had been
deposited "quite recently." His 2012 declaration does not withdraw
th at testimony.

129. Dr. Bayardo testified at trial that he believed he saw sperm via
microscopic observation from a rectal swab taken during Stites's
autopsy that did not testpositive for acid phosphatase. His 2012
declaration does not withdraw that testimony.

130. Dr . Bayardo testified at trial that he believed there were injuries to

Stites's anus that occurred near her time of death. His 2012
declaration does not withdraw that testimony.

131. The Court finds t hat, after reviewing Dr. Bayardo's 2012 declaration,
he has not recanted his testimony.

Page 35 of 36
Karen Blakely

132. Applicant asserts that Blakely's 1998 trial testimony concerning the
timing ofintact sperm has been recanted via her former employer, the
Texas Department of Public Safety.

133. The 2018 letter from Assistant Division Director Brady Mills says that
the Texas Department of Public Safety does "not believe that Ms.
Blakely's testimony constitutes professional negligence or professional
misconduct" andno "duty to correct."

134. The Court finds that, after reviewing the 2018 letter from Assistant
Division Director Brady Mills, the Texas Department of Public Safety
has not recantedBlakely's trial testimony about the length of time that
intact sperm may be found in the vaginal cavity.

Meghan Clement

135. Applicant asserts that Clement's 1998 trial testimony concerning the
length oftime in which she had observed intact sperm from sexual
assault kits was recanted by her former employer, LabCorp (now Bode
Cellmark).
136. The 2018 letter from Technical Leader Stephane Sivak says that
certain statements made by Clement at Applicant's trial are
"unsatisfactory" withoutany specific explanation.

137. The Court finds that, after reviewing the unexplained 2018 letter from
Technical Leader Stephane Sivak, LabCorp, (now Bode Cellmark), has
not recanted Clement's trial testimony about the length of time in
which she had observed intact sperm from sexual assault kits.

138. The Court finds that none of the testimony by Dr. Bayardo, Blakely,
and Clement has been recanted by the witness or the witness's then-
employer.

Supposed confessions

139. Applicant claims that Fennell confessed to two fellow inmates, Arthur
Snow and Michael Bordelon.

Arthur Snow

140. In his affidavit, Snow claims that, while he and Fennell were prisoners
at theStevenson Unit, Fennell said that his fiance "had been sleeping
around with ablack man behind his back" and that he "had to kill [his]
n*****-loving fiance."This conflicts with Fennell's credible testimony

Page 36of 37
 that he did not know Snow or confess to the murder of Stites.

141. Also in his affidavit, Snow claims that Fennell sought out protection
from theAryan Brotherhood, of which Snow claims to have been a
member and that thiswas known by prison guards. This conflicts with
the credible testimony of JayHart, who stated that there is no evidence
that Snow is a member of the AryanBrotherhood.

142. Also in his affidavit, Snow claims t hat after the Aryan Brotherhood
could no longer protect Fennell, Fennell claimed the Aryan
Brotherhood was extorting him, which led to Snow's transfer to the
Connally Unit. This conflicts with the credible testimony of Kelly
Enloe, who stated that Snow left the Stevenson Unit on a bench
warrant.

143. Also in his affidavit, Snow claims that he first learned of Applicant's
convictionwhen he read a newspaper while in the Hays County Jail "a
few years ago."

144. Also in his affidavit, Snow claims that he came forward after seeing
another newspaper article abou t Applicant's case while in the Hays
County Jail.

145. Snow's affidavit was executed about 10 years after he supposedly

interacted with Fennell at the Stevenson Unit.
146. At the evidentiary hearing, Snow testified that Fennell told him "that
you wouldn't believe how easy a man's belt would break when you
strangle a n*****-loving whore." This conflicts with his affidavit where
he didn't mentiona belt and didn't call his fiance a "whore."

147. At the evidentiary hearing, Snow testified that he wasn't floored by

Fennell's supposed confession because you hear a lot of war stories in
prison in which inmates inflate their crimes.

148. At the evidentiary hearing, Snow testified that he was in the Aryan
Brotherhood for 20 years starting in 1987, i.e., until 2007. This
contradicts hisaffidavit stating that he was in the Aryan Brotherhood
in 2010 when he claims to have met and interacted with Fennell.

149. At the evidentiary hearing, Snow testified that TDCJ knew he was a
memberof the Aryan Brotherhood. This conflicts with the credible
testimony of Jay Hart, who stated that there is no evidence that Snow
is a member of the AryanBrotherhood.

Page 37of 38
 150. At the evidentiary hearing, Snow testified that Fennell did not
approach him personally. This contradicts his affidavit stating that
Fennell approached himpersonally.

151. At the evidentiary hearing, Snow testified that he only spoke with
Fennell once. This contradicts his affidavit stating that they spoke
occasionally.

152. At the evidentiary hearing, Snow attempted to invoke his Fifth

Amendment right to silence.

153. At the evidentiary hearing, Snow testified that he wasn't sure if

Fennell claimed extortion and that t his led to his transfer to the
Connally Unit. This contradicts his affidavit stating that Fennell's
assertion of extortion led to Snow's transfer to the Connally Unit.

154. At the evidentiary hearing, Snow testified that Applicant's case was
"all over the news" and was "all over the" jail.

155. At the evidentiary hearing, Snow admitted to convictions for (1) family
violence; (2) violation of a protection order; (3) theft by check; (4)
DWI; (5) possession of methamphetamine; (6) credit card abuse; (7)
marijuana possession; (8) forgery of a commercial instrument; (9)
forgery of a commercialinstrument; (10) forgery by passing; (11)
forgery; (12) forgery; (13) forgery (twocounts); (14) forgery; (15) credit
card abuse (16) bail jumping; (17) forgery; (18) forgery; and (19)
theft by check.

156. At the evidentiary hearing, Snow testified he had not been offered
anything for his testimony, but later said that a French documentary
film crew offered him money.

157. The records from the Hays County Jail do not show a visitation to Snow
on the day he supposedly signed his affidavit.

158. From personal observation, the Court notes that Snow was belligerent
when questioned by the State's attorney.

159. Snow is not a credible or reliable witness, and his assertion t hat
Fennell confessed to the murder of Stites is not credible or reliable.

Michael Bordelon

160. In his affidavit, Bordelon claims that, while he and Fennell were
prisoners at the Sanders Estes Unit, Fennell said his fiance "was

Page 38of 39
 screwing an***** and that he couldn't take it an ymore so he just got
rid of her" and that he "took careof the problem."

161. Also in his affidavit, Bordelon said that he came forward because of
what he saw in th e news about Applicant's case.

162. Also in his affidavit, Bordelon said that Fennell claimed to be

associated withthe Aryan Brotherhood and u sed racial epithets for
black people.

163. Bordelon's affidavit was executed about 8 years after he supposedly

interactedwith Fennell at the Sanders E st es Unit.

164. At the evidentiary hearing, Bordelon could not recall what Fennell
supposedlysaid to him about Stites having an affair with a black man
until his memory was refreshed with his affidavit, something t hat was
executed only about 1.5 years prior to his testimony.

165. At the evidentiary hearing, Bordelon testified that F ennell said a

"damn n***** is going to do the time." This conflicts with his affidavit
where Bordelonmade no such assertion.

166. At the evidentiary hearing, Bordelon said th at Fennell positioned his

h ands ina choking motion when he was talking with Bordelon. This
conflicts with his affidavit where Bordelon made no such assertion.

167. At the evidentiary hearing, Bordelon said th at he came forward after

watchinga special about Applicant's case on the Dr. Phil show. This
conflicts with his affidavit where Bordelon said he saw Applicant's
case on t he "news."

168. At t he evidentiary hearing, Bordelon a dmitted that he testifie d

differently th an his affidavit, where he said he didn't want to pry into
how Fennell's fia ncedied.
169. Bordelon's belief that his memory got better 1.5 years after his
affidavit because he concentrated on the memory and followed his
heart conflicts with Dr. Davis's credible expert testimon y t hat
memory does not get better overtime.

170. Bordelon is necessarily a felon to have been incarcerated at the Sanders

Estes Unit.

171. Bordelon is not a credible or reliable witness, and his assertion th at

F ennell confessed to the murder of Stites is not credible or reliable.

Page 39 of 40
Forensic Science

172. At Applicant's trial, Dr. Bayardo testified that he estimated Stites's

time of death to be 3:00am on April 23, 1996, give or take an hour or
two. The Court finds that Dr. Bayardo has not retracted his time of
death estimate.

173. The Court finds that over his decades of litigation, Applicant has
proffered several experts offering varying theories on time of death. In
his report, Dr. Baden asserts that Stites was deceased before midnight
on April 22, 1996. During his testimony at the evidentiary in
Applicant's eighth habeas proceeding, Dr. Baden admitted that
reasonable forensic pathologists could look at the same evidence and
come up with a different time of death. In his report, Dr. Spitz asserted
that Stites was deceased between 6:00pm to 10:00pmon April 22, 1996.
In his fourth affidavit, Dr. Riddick asserted that Stites wasdeceased
between 9:15 pm on April 22, 1996, to 1:15am April 23, 1996. In Dr.
Riddick's prior affidavits, Dr. Spitz asserted that no reliable time of
death couldbe discerned from the evidence in this case.

174. At this hearing, Applicant called Drs. Baker and Davis to undermine
Dr. Bayardo's trial testimony regarding time of death. The State called
Drs. Danaand Farley to rebut Applicant's experts and to opine on the
correctness of Dr. Bayardo's trial testimony.

175. Considering the live testimony of the experts, in addition to the

evidence submitted with their testimony, the Court credits the
testimony of Drs. Dana and Farley over Drs. Baker and Davis on the
issue of time of death. The Courtnotes that a large disagreement
occurred between the experts regarding the consideration of extrinsic
evidence in arriving at an opinion on time of death. Drs. Dana and
Farley credibly testified that the extrinsic evidence in this case is
important to consider and properly guided their opinion that Dr.
Bayardo's time-of-death estimate of between 1:00 and 5:00 AM. and
closer to 3:00 AM. was not incorrect.

176. At Applicant's trial, Dr. Bayardo also testified that Stites anus appeared
to have injuries that could be consistent with anal penetration.

177. Applicant called Drs. Baker and Davis to undermine Dr. Bayardo's trial
testimony regarding injuries to Stites's anus. The State called Drs.
Dana and Farley to rebut Applicant's experts and to opine on Dr.
Bayardo's trial testimony.

Page 40 of 41
178. Considering the live testimony of the experts, in addition to the
evidence submitted with their testimony, the Court credits the
testimony of Drs. Dana and Farley over Drs. Baker and Davis on the
issue of anal injuries. Specifically, the Court finds credible the
testimony of Drs. Dana and Farley that the autopsy photos of Stites's
anus were not of high enough quality to determine whether the anal
injuries detected by Dr. Bayardo were present. Both Drs. Dana and
Farley agreed that Dr. Bayardo was in the best position to make t hat
determination, since he could view the perceived injuries in person,
and that no evidence provided in 2021 could undermine that opinion.

179. At Applicant's trial, Dr. Bayardo also testified regarding the timing
inference to be drawn between deposit and collection of intact sperm
from Applicant found in Stite's vaginal cavity.

180. Applicant called Drs. Baker and Davis to undermine Dr. Bayardo's trial ,
testimony regarding this timing inference. The State called Drs. Dana
and Farley to rebut Applicant's experts and to opine on Dr. Bayardo's
trial testimony.

181. Considering the live testimony of the experts, in addition to the

evidence submitted with their testimony, the Court credits the
testimony of Drs. Dana and Farley over Drs. Baker and Davis on the
significance of finding intact sperm from Applicant inside Stites's
vaginal cavity and the timing inference tobe drawn.

182. The Court further finds that all four doctors agree that their opinions
regarding time of death, anal injury, and the timing inference between
depositand collection of intact spermatozoa are not based on new
science. Rather, theCourt finds, based on the testimony of all four
experts, that this science was readily available at the time of trial and,
indeed, some of it was put before thejury. For example, the article on
which Drs. Baker and Davis largely rely on for their opinions on the
time significance of intact sperm was the very article discussed at trial.
183. The Court makes a specific credibility finding against Dr. Davis because
he didnot write a report. Rather, Applicant's counsel wrote a peer
review report, which amounts to nothing more than counsel's
argument, onto which Dr. Davis signed. The Court finds this
undermines his credibility as an expert and the validity of his
testimony.

184. Amber Moss is the DNA section supervisor of the Texas Department of
PublicSafety (DPS) Crime Laboratory in Garland, Texas. Allion Heard
is the DNA section supervisor of the DPS Crime Laboratory in Austin,
Texas. Both testified regarding the retesting and reanalysis of DNA

Page 41 of 42
 samples from Applicant's case. Of note, the Court finds that the
testimony of both Moss andHeard continues to support the irrefutable
evidence that Applicant's DNA wasfound inside Stites's corpse and on
and around her body.

Extraneous Offenses

185. The Court notes that during the punishment phase of Reed's trial, five
victims-Connie York, Lucy Eipper, minor A.W., Caroline Rivas, and
Vivian Harbottle-credibly testified that Applicant sexually assaulted
them. The Court also notes that Linda Schlueter testified that
Applicant attempted to sexually assault her, but she was able to
escape. SX.21, Vols.57-63. The Courtfinds that the State did not call
these witnesses during the guilt phase becauseApplicant did not open
t he door to such rebuttal testimony.

186. The Court finds credible the testimony of David Board that Reed's prior
sexual assault history was crucial in law enforcement developing him
as a suspect almost a year after Stites's murder. 6.RR.82-88.
187. The Court finds that Applicant made a full-throated challenge to
identity and consent during the evidentiary hearing, something he did
not do at trial. The Court further finds that this is a clearly new
defensive t heory th an what was presented at trial.

188. The Court finds that had Applicant presented this new defensive
theory at trial, at least some, and possibly all, of Applicant's
extraneous victims would be allowed to testify for the State in rebuttal.

189. The Court finds the testimony of York, Eipper, minor A.W., Rivas,
Harbottle, and Schlueter presented during Applicant's punishment
phase at trial to be credible. 1 The Court further finds credible the
testimony of several other witnesses who corroborated the accounts
of these women.

1
The Court notes that the State presented the testimony of Harbottle and Schlueter under
a bill of exception. The State also presented the testimony of Kellea Miller , an officer related
to Schlueter's case under the bill. The Court notes that their testimony at the hearing is not
considered here for purposes of t hese findings.

Page 42of 43
 CONCLUSIONS OF LAW

GROUND ONE-SUPPRESSION OF FAVORABLE, MATERIAL

EVIDENCE

Laches Legal Standard

1. The common law doctrine oflaches applies. Ex parte Perez, 398 S.W.3d 206,
215 (Tex. Crim. App. 2013). Laches, in this context,

"is defined as 'neglect to assert right or claim which, taken

together with lapse of time and other circumstances causing
prejudice to an adverse party, operates as a bar in a court of
equity. Also, it is the neglect for an um·easonable and unexplained
length of time under circumstances permitting diligence, to do
what in law, should have been done."' Id. at 210 (quoting Ex
parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999)).

The State is not required "to make a 'particularized showing of prejudice,"'

but may rely on "anything that places the State in a less favorableposition,
including prejudice to the State's ability to retry a defendant[.]" Id. At 215.
This includes "the diminished memories of trial participants and the
diminished availability of the State's evidence [.]" Id. at 216. And, "the longer
an applicant delays filing his application, and particularly when an applicant
delays filing for much more than five years after conclusion of direct appeals,
the less evidence the State must put forth in order to demonstrate prejudice."
Id. at 217-18. "Furthermore, ... in determining whether habeas relief is
warranted, we must afford adequate weight to the State's broad interest in th e
finality of a long-standing conviction." Id. at 218.

Laches Legal Conclusions

2. The Court finds that Ground One is barred by laches for the reasons discussed
in the corresponding laches factual findings.

3. Because the claim is barred by laches, the merits review of Ground One, found
below, occurs in the alternative.

Suppression Legal Standard

4. This claim is governed by Brady v. Maryland, 373 U.S. 83 (1963). Pena v. State,
353 S.W.3d 797, 809 (Tex. Crim. App. 2011). To prove a "Brady violation," an
applicant must demonstrate (1) the suppression of (2) favorable evidence (3)
that is material, meaning that th ere is a reasonable probability of a different
result had the suppressed evidence been disclosed. Id. "Additionally, ... the

Page 43of 44
 evidence central to the Brady claim [must] be admissible in cou rt." Pena u.
State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).

Suppression Legal Conclusions

Richard Derleth

5. Applicant has failed to prove, by a preponderance of the evidence, that Derleth

possessed favorable evidence because the Court disbelieves his recollection
that unnamed HEB employees told him about an alert system. See, e.g.,
UnitedStates u. Edwards, 442 F.3d 258, 266 (5th Cir. 2006) ("Because '[t]he
prosecution has no duty to turn over to the defense evidence that does not
exist,' we reject Appellants' Brady claims with respect to Robert Guidry."
(quoting Brogdon u. Blackburn, 790 F.2d 1164, 1168 (5th Cir. 1986));
Hafdahl u. State, 805 S.W.2d 396, 399 (Tex. Crim. App. 1990) ("Brady and
its progeny do not require prosecuting authorities to disclose exculpatory
information to defendants that t he State does not have in its possession and
t hat is not knownto exist.").

6. Assuming that Derleth was told about an alert system, the Court finds that
the State cannot be imputed with this knowledge as Derleth was not part of
the investigation into Stites's murder, he did not tell anyone involved in the
investigation about this information, and did not state that this information
came to him in his peace officer capacity. Compare Ex parte Castellano, 863
S.W.2d 476, 484-85 (Tex. Crim. App. 1993) (finding imputation where police
officer's "participation in the investigation was considerable" despite being
motivated by personal reasons for committing perjury, knowing about
perjury,and altering evidence).

7. Assuming that Derleth was told about an alert system, and assuming
imputation to the State, the Court finds that Derleth's knowledge about an
alert system is hearsay, so the State was not required to disclose it. See Pena,
353 S.W.3d at 814 ("The State does not have a duty to disclose favorable,
material evidence if it would be inadmissible in court.").

8. Assuming that Derleth was told about an alert system, that such information
is imputed to the State, and that such should have been disclosed, the
evidence is not material. The vague and hearsay description of an alert
system by unknown HEB employees would not have undermined the
substantial case against Applicant by a reasonable probability.

Charles Wayne Fletcher

9. Applicant has failed to prove, by a preponderance of the evidence, th at Fletcher

possessed favorable evidence because the Court disbelieves his recollection

Page 44 of 45
 that Fennell confessed his belief that Stites was having an affair with a black
man and that Stites and Fennell were arguing. See, e.g., Edwards, 442 F.3d
at266; Hafdahl, 805 S.W.2d at 399.

10. The Court does not find that Fletcher's op1mon of Fennell's behavior
surrounding Stites's burial to be favorable information because it does not
"justify, excuse, or clear [Applicant] from fault." Harm v. State, 183 S.W.3d
403, 408 (Tex. Crim. App. 2006).

11. Assuming that Fletcher heard Fennell confess to concern abou t infidelity,
observed Fennell and Stites arguing, and observed Fennell behave
suspiciouslyaround Stites's burial, the Court finds that the State cannot be
imputed with this knowledge as Fletcher was not part of the investigation
into Stites's murder, he did not tell anyone involved in the investigation
about this information, and did not learn of it through his peace officer
capacity. CompareEx parte Castellano, 863 S.W.2d at 484-85.

12. Assuming that Fletcher heard Fennell confess to concern about infidelity,
observed Fennell and Stites arguing, and observed Fennell behave
suspiciously around Stites's burial, the Court finds the evidence is not
material. The suspicion of infidelity does not name Applicant as the other
man and does notprove that Fennell knew Applicant was having an affair
with Stites; Fennell, at trial, admitted that he and Stites argued, so
Fletcher's observation of argument is cumulative, and belief about suspicious
behavior at Stites's burialis of little import. This information does not make
it reasonably probable thatApplicant would h ave been acquitted.

Jim Clampit

13. Applicant has failed to prove, by a preponderance of the evidence, that

Clampit possessed favorable evidence because the Court disbelieves his
recollection that Fennell said Stites "got what she deserved." See, e.g.,
Edwards, 442 F.3d at 266; Hafdahl, 805 S.W.2d at 399.

14. Assuming that Clampit heard F ennell say that Stites "got what she deserved,"
the State cannot be imputed with this knowledge because Clampit was not
part of the investigation into Stites's murder, he did not tell anyone involved
in the investigation about this information, he did not learn of it through in
hispeace officer capacity, and his employer, the Lee County Sheriffs Office,
was not part of the investigation into Stites's murder. Compare Ex parte
Castellano,863 S.W.2d at 484-85.

15. Assuming that Clampit heard Fennell say that Stites "got what she deserved,"
that such information is imputed to the State, and that such should have
beendisclosed, the evidence is not material. Clampit 's heavily impeachable

Page 45 of 46
 testimony would not have undermined the substantial case against
Applicantby a reasonable probability.

GROUND TWO-UNKOWING USE OF FALSE TESTIMONY

Nonretroactivity Legal Standard

16. The nonretroactivity doctrine of Teague u. Lane, 489 U.S. 288 (1989) is followed
"as a general matter of state habeas practice." Ex parte De Los Reyes, 392
S.W.3d 675, 679 (Tex. Crim. App. 2013); Exparte Arreguin No. WR-91,332-
01 (Tex. Crim. App. 2020) (not designated for publication); See, also, Harbin
u. State 619 S.W.3d 293 (Tex. Crim. App. 2021).

"In Teague and its progeny, the Supreme Court laid out theframework to
decide whether a "new rule" announced in one ofitsopinions should be applied
retroactively to criminal convictions that were already final on direct review.
Under the Teague framework, a "new rule" applies retroactively in a collateral
proceeding only if the rule ... is substantive[.]" Exparte Maxwell, 424 S.W.3d
66, 70 (Tex. Crim. App. 2014) (footnotes omitted).

17. There used to be a "watershed" rule exception to Teague, but the Supreme
Court has eliminated it. Edwards u. Vannoy, 141 S. Ct. 1547, 1560 (2021)
{"New procedural rules do not apply retroactively on ... collateralreview.
The watershed exception is moribund. It must 'be regarded as retaining no
vitality."[quoting Herrera u. Wyoming, 136 S. Ct. 1686, 1697 (2019)]}.

Nonretroactivity Legal Conclusions

18. Applicant's conviction became final on October 9, 2001, "when the availability
of direct appeal to the state courts has been exhausted and ... a timely filed
petition [for writ of certiorari] has been finally denied." Beard u. Banks, 542
U.S. 406, 411 (2004) (quoting Caspari u. Bohlen, 501 U.S. 383, 390 (1994)).

19. The Court of Criminal Appeals "recognize [d] a due-process claim of unknowing
use of false testimony" for the first time in 2009 in Ex parte Chabot, 300
S.W.3d 768 (Tex. Crim. App. 2009), almost a decade after Applicant's
conviction became final. Exparte Chauez, 371 S .W.3d 200, 206-07 (Tex. Crim.
App. 2012). The Court therefore finds that an unknowing-use-of-false-
testimony claim is a"new" rule for purposes of Teague.

20. The Court finds that an unknowing-use-of-false-testimony claim is not a

substantive rule because it "neither decriminalize[s] a class of conduct nor
prohibits imposition of capital punishment on a particular class of persons."
Saffle u. Parks, 494 U .S. 484, 495 (1990).
21. Because the unknowing-use-of-false-testimony claim is a n ew rule arising after

Page 46of 47
 Applicant's conviction became final, and because it is not a substant ive rule,
the Court finds the claim barred by nonretroactivity principles.

22. Because Applicant's claim is barred by non-retroactivity grounds, the merits

a nalysis below is in the alternative.

Laches Legal Standard

23. The common law doctrine of laches applies. Ex parte Perez, 398 S.W.3d 206,
215 (Tex. Crim. App. 20 13). Laches, in this context,

"is defined as 'neglect to assert right or claim which, taken

together with lapse of time and other circumstances causing
prejudice to an adverse party, oper ates as a bar in a court of
equity. Also, it is the neglect for an unreasonable and unexplained
length of time under circumstances permitting diligence, to do
what in law, should have been done.'" Id . at 210 (quoting Ex
parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999)).

The State is not required "to make a 'pa rticularized showing of prejudice,"'
but may rely on "anything that places the State in a less favorableposition,
including prejudice to the State's ability to retry a defendant[.]" Id. At 215.
This includes "the diminished memories of trial participants and the
diminished availa bility of the State's evidence[.]" Id. at 216. And, "the longer
an applicant delays filing his application, and particularly when an applicant
delays filing for much more than five years after conclusion of direct appeals,
the less evidence the State must put forth in order to demonstrate prejudice."
Id. at 217-18. "Furthermore, ... in determining whether habeas relief is
warranted, we must afford adequate weight to t he State's broad interest in the
finality of a long-standing conviction." Id. at 218.

Laches Legal Conclusions

24. The Court finds that Ground Two is barred by laches for the reasons discussed
in the corresponding laches factual findings.

25. Because the claim is barred by laches, the merits review of Ground Two, found
below, occurs in the alternative.

Procedural Default Legal Standard

26. "As a general matter, th[e Court of Criminal Appeals] has long held that a
convicted person may not raise a claim for the first time in a habeas-corpus
proceeding if he ha d a reasonable opportunity to raise the issue at trial or on
direct appeal and failed to do so.'' Ex parte De La Cruz, 466 S.W.3d 855, 864
(Tex. Crim. App. 2015). "Even claims of a constitu tional dimension are

Page 47 of 48
 'forfeited [on habeas] if the applicant had the opportunity to raise the issue
onappeal. This is because the writ of habeas corpus is an extraordinary
remedy that is available only when there is no other adequate remedy at
law."' Id. (alteration in original) (quoting Ex parte Townsend, 137 S.W.3d 79,
81-82 (Tex.Crim. App. 2004)).

Procedural Default Legal Conclusions

27. Because the evidence that Applicant claims proves false certain parts of
Fennell's trial testimony, except for the hearing testimony of Arthur Snow
andMichael Bordelon, the claim is barred because Applicant could have
presentedthe contradictory evidence at trial and raised the claim on direct
appeal.

28. Because the claim is procedurally defaulted for failing to preserve and present
it earlier, the merits review of Ground Two, found below, occurs in the
alternative.

Unknowing Use of False Testimony Legal Standard

29. To prove a false testimony claim, an applicant must prove t h at (1) "the
testimony was, in fact, false, and, if so, (2) whether the testimony was
material." Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).
Asto the latter, the applicant "must prove that the false testimony was
material and thus it was reasonably likely to influence the judgment of the
jury." Id.

Unknowing Use of False Testimony Legal Conclusions

30. Applicant has not proven by a preponderance of the evidence that Fennell lied
or misleadingly testified at trial when he denied killing Stites.

31. Applicant has not proven by a preponderance of the evidence that Fennell lied
or misleadingly testified at trial when he denied knowing, or knowing of
Applicant, prior to Applicant's arrest for the murder of Stites.

32. Applicant has not proven by a preponderance of the evidence that Fennell lied
or misleadingly testified at t rial when he said that his relationship with
Stiteswas good.

Page 48of 49
 GROUND FOUR-ACTUAL INNOCENCE
Actual Innocence Legal Standard

33. A freestanding-innocence claim is also referred to as a "Herrera-type claim"

based on Herrera v. Collins, 506 U.S. 390 (1993). Ex parte Franklin, 72
S.W.3d671, 674 (Tex. Crim. App. 2002).

34. "[A]n exceedingly high standard applies to the assessment of claims of actual
innocence that are not accompanied by a claim of constitutional error at
trial." Exparte Elizondo, 947 S.W.2d 202,209 (Tex. Crim. App. 1996). Thus,
an applicant "must show by clear and convincing evidence that no reasonable
juror would have convicted him in light of the new evidence." Id . This "is a
Herculean task." Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.
2006). And it requires that an applicant rely upon "'newly discovered' or
'newly available"' evidence in making his freestanding claim of innocence,
meaning "[h]e cannot rely upon evidence or facts that were availableat the
time of his trial, plea, or post-trial motions." Id. Importantly, "[a] claimof
actual innocence is not an open window through which an applicant may
climb in and out of the courthouse to relitigate the same claim before
differentjudges at different times." Id. at 545-46.

35. "Clear and convincing evidence" is defined as th at degree of proof which will
produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established. Ex parte Miles 359 S .W.3d
647@ footnote 24 (Tex. Crim. App. 2012).

36. Post-conviction claims of actual innocence made many years after the alleged
crime should not be accepted without close scrutiny nor, generally, without
strong corroboration by independent evidence. Ex parte Brown 205 S .W.3d
538 (Tex. Crim. App. 2006).

Actual Innocence Legal Conclusions

37. Applicant has not proven by clear and convincing evidence that no reasonable
juror would have convicted him of capital murder.

38. Applicant has not proven by clear and convincing evidence that he is actually
innocent.

Page 49of 50
 RECOMMENDATION

The court recommends that Applicant's grounds for relief remanded to this

Court-Applicant's Grounds One, Two, and Four-be denied.

SIGNED on the 31st day of October, 2021.

Presiding Judge
21st District Court
Bastrop County, Texas
Sitting by Assignment

Filed9 :J le m

Page 50of 50 OCT 312021

Sarah Loucks
District Clerk, Bastrop County