Now I would like to try and talk about the two opinions handed down from the TCCA.
- Raby v. State no AP-74,930
This is the opinion where the TCCA granted me DNA testing on 4 different items; item # 2 the bloody nightshirt worn by Mrs. Franklin at the time of her murder, has since come up ‘missing’. Once again this is why I want that screw driver tested before it too comes up missing. I think the nightshirt was/is a very important piece of evidence. But now it is forever lost and the one who suffers for that is me. It is held against me, not the state who have possession of it. You will notice that the state argued that identity was not and is not an issue, but the TCCA over rolled the trial court and said ‘given the facts of this case, identity was and is an issue as required under article 64.03 and they also stated that ‘there are a maximum of four items to me tested and “few suspects for comparison*the waters would not be muddied by exculpatory DNA evidence’. …however as you will see in the following opinion
- Raby v. State No AP-76, 970
They do a complete about face and now are saying the results even though they exclude me as a donor are not favorable to me and there is no way to tell when the blood DNA under Mrs. Franklin’s fingernails was deposited there.
Yet in the opinion granting DNA testing the TCCA admitted the waters would not be muddied, and there are few suspects to test. Here is the thing about that, no one else has been tested. That is why I am asking that Linda McClain and lee Rose come forward and provide the full names and address, or last known address to the names which lee Rose and Eric Benge provided to the detectives in the police report (see police report at page 2.017) they need to be tested. If for nothing else than to see if it is one of theirs, but even more so to exclude them as donors to the DNA (blood) detected under Mrs. Franklin’s nails. No one can say for sure if it is even their DNA. District attorney Mrs. Hardaway has based this on sheer speculation and if I ain’t mistaken, speculation wouldn’t be allowed in a court of law. I mean after all you hear it all the time ‘objection that is based on speculation’.
Yet it seems to be allowed in the appeal process.
If the TCCA opinion granting DNA testing, it states ‘when Eric Benge returned home, he found that the screen had been removed from the window. Police found foot prints below the window, a screwdriver, and fresh wood chips. They concluded that the killer entered Mrs. Franklin’s home through the bed room window.’’ (see xxvii at 89 – 92 xxviii at 189, xxvii at 90) that should tell the whole story as to why I am requesting the screwdriver be tested. Footprints – under the window, foot print on the bed, fresh wood chips, a torn screen and a screwdriver, and the fact that the window was nailed down that very day by Eric Benge. All of these are signs that show conclusively that someone went in through that window. This isn’t based on ‘speculation’ this is based on facts. The TCCA even touched on the fact about the across the street neighbor Mrs. Donna Espada saw someone at the south east bedroom window that looked to her to be taking of the screen. (see police report at 2.017 and 2.021)
Again please forgive me for repeating myself, but it bears repeating, they don’t seem to be aware of the distance from Mrs. Franklin’s home on 617 Westford, to Mrs. Gunn’s home on 9146 Simmons street. Nor do they seem to take into account or make the connection that at the exact time Mrs. Espada saw this man at that window, I was at Mrs. Gunn’s house at exactly 6;pm on the dot. So that ‘suspect’ is not me. They are under the impression that Mrs. Gunn an Mrs. Franklin lived just a few blocks away from one another. Or they just flat out don’t care. (see google map to show the distance from Mrs. Franklin’s house on 617 Westford and Mrs. Gunn’s on 9146 Simmons St. Also see Mrs. Gunn’s trial testimony ) I cannot be in two places at once.
This same opinion also states that Mrs. Franklin was ill and rarely left the house or had contact with anyone other than her grandsons. That alone should be enough to warrant the testing on the grandsons friends who are listed in the police report. Which were provided by Lee Rose and Eric Benge. Yet once again when you read the following opinion you will see how the TCCA have once again backtracked and did a about face on this and change their opinion to say ‘she had regular contact with other people. ‘They are trying to have it both ways. When Lee Rose and Linda McClain and Eric Benge testified that she had no contact with anyone except Lee and Eric. (see xxvii at 62- 5, 15-160) with just these facts alone I should, or you would think I would be allowed to have the screw driver tested and the grandsons friends. But as I said, they will fight me to the very end to have these test preformed. Why? What are they afraid of? It will either be one of their friends or it will not. Is it money? It isn’t like the city of Houston is hurting for money. After all this is life and death. I do wish however that I could go to the courts with my own money in hand and say here, is the money to have the test preformed, it will not cost the city a penny. I would be willing to allow the DA’s office to pick whomever they want to preform these test. If they used their own lab, it wouldn’t cost as much. The HPD crime lab can do the testing for all I care. I just want them done.
Now please (see Raby v. State no AP 76,970) which is the TCCA’s latest opinion in which they denied me on the very grounds they granted TCCA’s testing. Throughout this opinion they repeatedly state I am excluded and not the contributor on the DNA profiles detected.
Page 5. They state the cause of death was multiple stab wounds which could had been inflected with a pocket knife with a blade as small as two inches. They say this because I told them I had a 2 inch old timer pocket knife and because I was seen with a 2 inch knife by Mrs. Gunn. (see XXVIII 293-4) Yet once again they just seem to over look, or don’t care, and turn a blind eye to, and that is there were no hilt marks on Mrs. Franklin. (see xxvii 12-14, also see affidavit of Paul b. Radelat, MD. At 000103, and see Cochran dissenting opinion Dr. Eduard Bellas at page 3-4.)
Page 10 falsely states that I said I confessed to grabbing Mrs. Franklin from behind ‘while holding my knife’. I never said any such thing. I said I know I had my knife, but I do not recall taking it out. Meaning I know I had A Knife ‘on me, that I carried a knife’ but I never said I was holding it in my hand. That is a far cry from saying I said I was ‘holding a open knife in my hand as I grabbed her from behind’ (also see states brief page 26,) this was the first mention by anyone that said I had a knife in hand while I grabbed her from behind. And this is the district Attorney Lynn Hardaway putting this thought in the courts minds.
This is just as bad when the TCCA judge said in one case where the man was exonerated, that he ‘could had been wearing a condom’ when this theory was never mentioned at his trial. They then conclude that the absence of my DNA from the victims fingernails Even thought there were signs of a struggle, and she had defensive wounds. Has minimal exculpatory value and the court properly found that the results of the post conviction DNA testing were not favorable to me. This is after They admit this DNA is from blood and it is not from me. I cannot not say it enough, but if the roles were reversed and they were me, or one of their loved ones, they would not be saying this. They would be screaming at the top of their lungs that they are innocent. But when I say it, it falls on deaf ears.
Pg 11 Here we argued that we should had been allowed to call forward witnesses and one of the witness we wished to call was none other than Joseph Chu who did the original testing back in 1992. At the very least he should had been called to take the stand, but my trial judge didn’t feel his testimony would had mattered. He could had explained why he told the jury the results were inconclusive, when they clearly aren’t. Who better to talk about his results than the very man who did them? By not allowing us to call him to testify, they have violated my US constitutional right, which allows me the right to confront my accusers. (see US const article vi)
Yet there is still hope, even if they state will not allow me to have him explain himself, hopefully in the federal level they will. I just do not see the point in having someone else explain his finding, or try and get in his head and make excuses for him, when he was right outside the door waiting to be called. I know why, or at least I think I do. They are fully aware of all his past actions, not just in my case, but many others, (see the Michael Bromwich report an independent investigation into the crime lab. Chu is mentioned in it a few times.) And really just how much did they have to pay this expert Patricia Hamby to fly all the way to Houston TX from out of state, just to tell everyone something he could had told the court himself?
Also on age 11, they cite the Rivera v. State 89 s.w.3d.55 (TX 2002) Case, even if DNA results provide a weak exculpatory inference, the inference does not outweigh the confession. What about if the confession contradict physical evidence? It is not my fault that fool J. Chu used up most of the fingernail scrapping material when he did the testing. I would say that everything I have ever read about Mr. Chu, he knew exactly what he was doing when he used up all the material. Anyone with common sense knows to save some. Never know, it could fall on the floor. Right? And could be subject for retesting, which is just what we did.
But here is the thing about the Rivera case they cited. There has been new evidence a ‘confession’ from the young girls who used to babysit the victim in the Rivera case. And she has stated that she did it, she blamed everything on him because Rivera is really ‘slow in the head’. S0 much for a bullet proof confession.
Page 13, ‘the confession and the crime scene’ “when post conviction testing leaves the court with the question. The court looks to the evidence raised at trial to determine if the jury would had convicted the defendant had this evidence been presented to them.” I think the best ones suited to answer that question would be my jury. Present them with the DNA they never heard of. Tell them it is from actual blood. That is isn’t from me, or the grandsons. Tell them the circumstances surrounding my confession, which they never heard before. Ask them how they feel about being lied to by Chu. Ask them how they feel about my district attorney intentionally withholding the lab report, and how he knew chu’s testimony was false and misleading, and failed in his professional duty to correct known false testimony. Lets ask them how they feel about him withholding that lab report from me and my attorneys after we request all exculpatory evidence be turned over. Lets ask them.
Page 15. Appellant argues that the results should be determined favorable to him because there was blood at the scene of the crime that was not from him. The state responds that while the victim had some defensive wounds, And bruises, there was no evidence that she scratched the assailant, and would therefore have had his blood under her finger nails. I am just blown away by the courts excepting of this statement from the state.
To say there is no evidence that she scratches her assailant, and therefore have had his blood under her fingernails is just something that defies logic. I mean what are they not seeing here? She has blood under her fingernails that the on scene detectives observed, and they are saying that she didn’t scratch he attacker?
Appellant signed a confession admitting that he was guilty of this crime. Yes I did sign that statement, but it was to protect my loved ones. I knew by confessing and signing that statement, she and the baby would be free to go.
Independent testimony by witnesses who saw appellant immediately before, and ‘after’ crime corroborates parts of his confession. Parts of my confession. The parts were I admit to going to some old friends houses? What I was wearing? But this part where they say witnesses saw me immediately after the crime was committed who are these witnesses? The guy that Sgt Allen told me I talked to? I think they mean the very same guy who did not testify at my trial for some odd and strange reason. I mean after all they have this ‘best evidence rule,’ you put your best evidence foreword.
And who better to present to the jury than the very man that said he actually ‘spoke to me? This man never pointed me out in a line up, or photo line up, he never testified at my trial…so is this the witness they are speaking ‘of? –or are they referring to his brother in law Martin Doyle? Mr. Doyle did in fact testify at my trial, but the description he gave is not me, and he could not identify me at trial. (see Mr. Doyle’s transcript at XXVIII 314-7) Mr. Doyle who was with his brother when they confirm brother ‘in law when hey confronted someone.
So again I ask, who are these witnesses they speak of that they say saw me immediately after Mrs. Franklin was murdered? To this day, Mr. Truitt and Mr. Doyle cannot not say that it was me who They spoke with…spoke with! They actually talked to this person. I have often wondered if they gave a description of me in the news before Mr. Truitt called in and said he had some information?? After all everyone was saying what I was wearing . Did they give the description on the news what I was wearing? Was it John Phillips who told him there was an Incident on the other street? John Phillips lived across the street from Truitt, and is about my size.
Page 17. Here is where they bought lot stock and barrel into the district attorneys theory it ‘could’ had came from one of the friends. ‘Although appellant emphasized that the victim’s grandsons were her only contacts but’ other evidence indicated that although the victim was ill, and rarely left the house, she had contact with people. Her grandsons had many friends who often visited the home which would explain why she had male DNA not belonging to appellant of her fingernails”. What other evidence? There is nothing written anywhere that says Mrs. Franklyn had any contact with anyone other than Lee and Eric, none. Where are they getting this? (see XXVII at 62-5, 15-160).
First off, I don’t know how many people they had visiting the house, I hadn’t been to that house except one time in 4 years. I didn’t know any of their ‘new friends. They could had had a lot of friends over. I don’t know. But what I do know is this, when I was out there, Mrs. Franklin stayed in her back bed room. She rarely came out of it unless she had to use the bathroom, or to tell us to turn the music down. And then she was right back in her room. Which was the den that was converted into a room for her. It was really big. She had everything she wanted and needed there in that room with her. And this was back when Mrs. Franklin was able to get around on her own without any help from anyone. She still stayed in her room to herself and left the front of the house to Lee and Eric.
She did not have contact with us when I was there 4 years prior. Frankly I don’t think she really wanted any of us there, but excepted it because of Eric and Lee. In the 4 years that I was gone, Mrs. Franklin’s healthy took a turn for the worse. She had to have help getting around the house, and from my understanding even getting out of the bed and getting dressed. The only ones who would help her with that? Lee and Eric. I refuse to believe that they allowed anyone to he lp their grandmother in such a intimate way. Cleaning her after she used the bath room, bathing her, dressing her. (XXVII at 62-5, 15-160) or helping her walk around the house. I just do not for one instant believe that.
And I do know that ..well from back when I hung with them, when you came over, it was a rule of Mrs. Franklins’ she had to meet you. And that was the only time anyone of us was allowed in her back bed room was during the first introduction. I think she just wanted to put a face with the name of the people in her home.
But I will be the first td admit , in 4 years things can change. Maybe she did have actual physical contact with their ‘ friends, maybe she allowed them to help her with her daily needs. ..I don’t believe it, but yes it is possible.
I think only Lee and Linda could answer this. But also all of my old friends who we used to run with back then, let’s ask them if they ever
- Helped her get around the house
- Bath her
- Use the bath room
- Did she ever scratch them by accident while doing any of these things?
- Did she ever bleed in the house?
- When was the last time they were actually in the house? and did they have regular, or any physical contact with her?
- What is your blood type?
I am willing to bet the answer to these questions are ‘no’!
These friends are:
- James Jordan
- James Parks
- Kennith Gaddis
- Blaine Earl Wright Jr.
- Edward Bangs
- John Phillips
Now these were the guys I knew 4 years prior to the Murder. It is the ones that I do not know who these questions need to be asked of. But I am still going to say that no, they did not.
- Bath her
- Clean her after using the bath room
- Have actual regular, or any physical contact with her.
- When was the last time you were in that house?
- Did you ever bleed in the house?
- What is your blood type?
1 . Anthony Charles
- Gary Smith
- Jeff Hattenback
I still refuse to believe that Mrs. Franklin had physical contact with these guys or enough physical contact to get their blood under her nails…if in fact it is from one of the names listed. What if it isn’t? Can’t we just test them and find out?
Page 18-19 they now try and justify the blood under her fingernails a different way. Saying that since the house was messy and not regularly cleaned, the DNA could had been left by one of the many past visitors and could had been there for a’ long period of time’. Look, these people weren’t trash. Granted, they weren’t the best house keeper. But I am sure they cleaned it well enough to collect any DNA that could had ‘fallen’ off someone. I think they vacuumed regularly, and clean the house. After all Eric testified that he tripped over some laundry that was recently folded. All I can say is they were not filthy people. So To speculate that they didn’t clean their home for a long period of time is ridiculous. These were clean people, maybe not by the judges standards. But they were clean.
And if that was the case, that they were so filthy and messy that they didn’t clean, then why is it when the TX-DPS did testing on the carpet that the only DNA they found was that of Mrs. Franklin? They didn’t even find Lees and Eric’s DNA on the carpet. And if they were so dirty then those two’ guys dead skin, epidermis cells, who live there everyday, ate there, slept there, bathe there. Then if the house was as messy as the courts are making it out to be to use as justification to deny me. Lee and Eric’s Eric’s DNA would had been detected on the carpet as well. But it was not! That in itself should speak volumes. But as with everything related to me and this case, it falls on deaf ears
I would need to convince at least one (1) just one juror I didn’t do it, to establish reasonable doubt…again I would like to hear what my jury has to say about all this. Again they say trial witnesses also corroborated details of appellant’s confession …’that he exited out of the back of the house! I think they are saying here that someone actually witnesses me exit the back out the house. This is just another misconception of the facts. I did not exit the back of the house. I was not seen exiting the back of the house. There is no such witness that said this. There is no such witness that can affiritavley say that was me Mr. Truitt and Mr. Doyle spoke to. How the court can get away with saying things that are just flat out untrue, and not supported by the record is beyond me, and they should have to answer for it.
Appellant’s statement to one of the ‘neighbors’ that he was going; to the victims house to look for his friends. First this ‘neighbor’ is Mrs. Shirley Gunn. And she lives 3 miles away. So she is not a neighbor’. And I did not tell her I was going to Mrs. Franklin’s house. She is mistaken about that. I said I was headed that way. Meaning I was heading that way to talk to my daughters grandmother Mrs. Wright about her talking to my ex about allowing me to see my kid, and home to Reid St. I lived over there. Mrs. Gunn, as with so many others just did not realize I lived but a few streets away from Mrs. Franklin, at 706 Reid St.
Page 18. My attorney told the court, they should stop looking for hypotheticals to explain how I might be guilty even with these DNA results. But you can see the court disagrees. That the court use the state of the crime scene to come up with hypothetical scenarios to show my guilt.
Show my guilt how? By saying the DNA, the ‘Blood’ DNA that was first observed under Mrs. Franklin’s nails by on scene detective ‘could’ had came from one of the grandsons friends? Or from one of the grandson’s friends who ‘might’ had bled there at some point in time and the grandsons were just lazy and filthy to even clean up the living room after a long period of time? That is the most ‘ludicrous thing i have heard of. Lee Edward Rose and Linda McClain are the ones who can answer these many questions as well as the friends. I think I am asking legitimate questions here that deserve answers. And not just sheer speculation, or hypotheticals. Which is why I again urge you to contact those in power to get these tests preformed. Sign the petition. Does anyone really think I would be pushing so hard to have these test done if I was truly guilty?
If the state can make these unsupported allegations that are not supported by the record, then I feel asking the Harris County district attorneys office and the courts to use its inherent powers to complete Lee Edward Rose and Linda McClain to provide the full names and address that were provided by lee rose and Eric Benge so DNA samples can be gathered and compared with the blood DNA that was detected underneath Mrs. Franklin’s fingernails, DNA that conclusively is not mine.
The court is also using the fact that a’H’antigen was detected. But the court admits that the ‘H’ antigen is present in all blood types. But since my blood type is 0, and it only has the ‘H’ antigen, they are saying for that reason they can not rule me out….but again admitting that all blood type has the ‘H’ antigen. AB blood type has the A antigen, the B antigen and the H antigen, B blood type has-the B antigen and the H antigen. A blood type has the A antigen and the H antigen. 0 blood type has the H antigen.
I could be wrong but I think because I am 0 blood type, and my blood only has the H antigen, I can give blood to anyone. But not everyone can give blood to me. Yet once again the court over look a very important thing, and the important thing is, ‘No ‘0’ blood type was detected under Mrs. Franklin’s nails’ so it doesn’t matter if they found the H antigen. Isn’t that the point, because it Is a fact, the H antigen is in all blood. We are all born with the H antigen. If I ain’t mistaken, don’t quote me on this, but I think we are all born 0 blood type??? Well it doesn’t matter, the point of it all is, there was no ‘O’ blood type found. And I am ‘O’ blood type.
The truth of the matter is they just flat out do not want to admit they did wrong, and a detective used illegal tactics to get me to falsely confess. I would be just one more ‘death row inmate’ who was wrongfully convicted. And how many more of those will it take to abolish this death penalty killing machine? And in Texas, lets face it, Texans love the death penalty. We lead the Western world into executions. I, personally have witnessed over 400 men put to death, and one I am absolutely certain was innocent, Todd Willingham. Even that wasn’t enough to wake anyone up.
But you know something, everyone is for the death penalty ..until it touches a little too close to home. When it is their son, daughter, or friend and loved one, they sing a different tune…the question is, would all those judges and DA’S and politicians keep yelling ‘I support the use of capital punishment’ . If their son, daughter, dad mother or loved one was sent to death row and waiting to face one day having to watch that loved one strapped down and oison pumped through his or her body causing death? I think ever Rick Perry would beg for his child’s life and come out and speak against capital punishment. You see everyone is for it until it effects them on a personal level.
What if they knew that their loved one was innocent? I think only that hardest of Hardest heart would say, ‘yes he is my son, ,but go ahead and kill him ‘for those who always say, well if we have to kill one innocent person to get to a 100 guilty …. Then how about they sacrifice themselves or their sons and ‘daughter to make sure everything is in ‘fair play’ .Let them be that one innocent to get to 100 guilty. There is no such thing as fair play in capital punishment, it is a penalty for the poor and poor only, anyone who has money? They don’t come here to die. Justice ruled by the almighty dollar. That is a fact.
There was this show on CCA one time I saw, back when I first came to death row, CNN presents capital punishment, and they were talking about Texas. And more so Houston TX. During the time I was going to trial I think they said there were 30 capital murder trials, 15 had court appointed and 15 had free world. The 15 that could afford ”to pay for their own attorneys got life or less, those 15 of us who were poor . .everyone of us ended up right here on Death Row.
They also talked of this ’silver needle society’ what that was / is; is every time a district attorney in Harris County successfully had someone executed, they had their name engraved on a sterling silver name tag, and placed on this really big hardwood plaque. And this was ‘the silver needle society’.
I recall there was this district attorney I can’t recall his name but he was sitting behind his big desk and when asked about the possibility of executing a innocent man. ..he leans back, kicks his feet up on his desk hands behind his head and gets this smile and said . . . . ‘Well they had a fair trial’.
Y’all may be able to archive that, it was sometime in 1994 to 1996? But how can he or anyone use trial and innocent in the same sentence. When they send that innocent man or woman to death row or prison? And most of these ‘fair trials’ he must had been talking about when a innocent was sentenced to death. That’s what the topic was about. I would bet that just as in my case, Graves case, Brown’s case, and countless others, exculpatory evidence was withheld. Lies were told, juries mislead. False witnesses testimony. But to that fool and many others that is his definition of ‘a fair trial’.