INTRODUCTION – The Legal Case
(out: File Second Application for Post-Conviction Writ of Habeas Corpus,
see Legal Actual)
This is a death penalty case. CHARLES DOUGLAS RABY, the Applicant,
files this Second Application for a Post-Conviction Writ of Habeas Corpus
pursuant to Article 11.071 of the Texas Code of Criminal Procedure. This
application presents, among other important grounds for relief, material
exculpatory evidence that was not considered in Mr. Raby’s prior habeas
application because the evidence was not available at the time that application
was submitted. Specifically, this application presents blood-typing and DNA
evidence demonstrating that the decedent had the blood of one or two men –
other than Mr. Raby or the two grandsons with whom she lived – underneath her
fingernails on both hands when she was found stabbed to death. This evidence
was not considered in Mr. Raby’s first application for habeas corpus for two
reasons: (1) the State withheld the lab report demonstrating the presence of a
blood type that did not match Mr. Raby or the decedent from defense counsel at
trial, and in fact presented false or misleading testimony at trial that the results
of the blood type testing were “inconclusive”; and (2) the method of DNA testing
that ultimately demonstrated the presence of male blood DNA under the
decedent’s fingernails that did not match Mr. Raby was not available when
Mr. Raby’s first habeas application was submitted. In the context of this case – in
which no physical or eyewitness evidence implicated Mr. Raby in this murder, in
which Mr. Raby was convicted on the basis of a weak custodial statement that
did not match numerous details of the crime and was obtained under duress, and
in which there is no plausible explanation for the presence of another man’s
blood under the decedent’s fingernails, other than the very plausible explanation
that it was the blood of the man who stabbed her – this new evidence is
extraordinarily exculpatory, and would have resulted in acquittal if it had been
available at the time of Mr. Raby’s trial.
The material facts are described at length in the Statement of Facts below. In
summary, Mr. Raby was convicted in 1994 of capital murder for the 1992 death
of Edna Franklin, a frail 72-year old woman who was found stabbed in the home
that she shared with her two grandsons. No physical evidence – no DNA, blood,
hair follicles, fingerprints, weapon, or anything else – has ever implicated
Mr. Raby in this crime. Likewise, no eyewitnesses have ever implicated Mr. Raby
in the crime.
At most, several witnesses testified that they saw Mr. Raby in the neighborhood
on the day of the crime, and one witness testified that he saw a man who
matched Mr. Raby’s general appearance in some respects jump over the
decedent’s fence on the evening of the crime, although he could not identify the
man he saw as Mr. Raby and initially testified that the man he saw was 4-6
inches taller than Mr. Raby.
Other evidence was inconsistent with Mr. Raby having committed this
violent stabbing that left copious amounts of blood on Mrs. Franklin and her
surroundings. Most significantly, police recovered the dark vinyl jacket that
witnesses saw Mr. Raby wearing around the neighborhood on the night of the
crime, and found no blood. Also, police found no cuts, scratches, or other marks
of a struggle on Mr. Raby when he was arrested three and a half days after the
Thus, it is no exaggeration to say that the only evidence presented at Mr.
Raby’s trial that was even arguably sufficient to support a conviction was the
statement that he gave in police custody shortly after his arrest. That statement,
however, has the classic hallmarks of a false confession.
First, it contradicts the physical and witness evidence of the crime in
numerous irreconcilable ways. For example, in his custodial statement, Mr. Raby
states that he entered the house through the open front door, whereas Mrs.
Franklin’s daughter testified that her mother told her on the phone shortly before
the crime that the doors to the house were locked, and Mrs. Franklin’s grandson
testified that his grandmother habitually locked her doors. The State presented
physical evidence that the murderer entered the house through a side window.
Additionally, Mr. Raby’s custodial statement says that he walked in the house,
immediately struggled with the decedent in the living room, and then walked out
the back door, whereas the State presented evidence that Mrs. Franklin’s purse
had been rifled through in her bedroom. Moreover, Mr. Raby’s custodial
statement says that he washed his bloody hands in a puddle away from the crime
scene, but police found no blood on any exit from the house.
Second, Mr. Raby was highly intoxicated on the night of the crime and when
he gave his custodial statement to police. Those two facts, as well as aspects of
Mr. Raby’s background and personality, left him very vulnerable to suggestion.
He had been in the vicinity of the decedent’s home on the night in question, and
although he did not remember committing the crime, it was easy for police to
persuade him that he must have through suggestive questioning.
Third, the offense report’s description of the interrogation is consistent with
suggestive questioning. At a crucial moment in the interrogation, after Mr. Raby
had consistently denied going to the decedent’s house on the night of her
murder, police told Mr. Raby that they “knew he was not being truthfful].
[Sergeant] Allen advised Raby that he had been identified jumping over a fence
leaving Edna’s house Thursday night at about the time she was killed.” That
statement was false; a witness had told police he saw a white male similar to Mr.
Raby’s general appearance jumping the decedent’s fence, but no one had
identified that person as Mr. Raby based on knowing him personally, in a photo
lineup, or otherwise. At that point, Mr. Raby supposedly “broke” and admitted
that he had not been truthful, but according to the police report, he then said “I
was there,” “I went in through the front door,” and “I saw her on the living room
floor.” Only later, after police continued to question Mr. Raby in a “narrative,
question/answer format [that was] reduced to a typed statement by Sergeant
Allen,” did Mr. Raby purportedly say that Mrs. Franklin was alive when he
entered the house. But even then, his description of the murder itself is
remarkably lacking in detail, stating only that he grabbed Mrs. Franklin, struggled
with her to the floor, and then saw her covered in blood.
Moreover, what is noticeably missing in the offense report is any recitation
of what questions the officer asked Mr. Raby in the time period when his
statement morphed from having seen the decedent on the floor when he entered
the home to having entered the home and then struggled with her to the floor.
The interrogation was not videotaped or recorded. Moreover, the offense report
markedly shifts at the point where Mr. Raby supposedly “broke” from a recitation
of both the officer’s questions and Mr. Raby’s answers to a summary only of Mr.
Raby’s supposed answers. Without a recording or more fulsome offense report,
it is impossible to know definitively whether the officer planted further
suggestions to “fill in” Mr. Raby’s memory, as with his misleading suggestion that
Mr. Raby had been identified jumping the decedent’s fence. We know, however,
that a Texas appellate court has since criticized the very officer in question for
similar improper interrogation techniques that rendered a custodial statement
inadmissible in Jeffley State, 38 S.W.3d 847 (Tex. App. – Hous. [14th] 2001,
pet. ref d).
Finally, at the time Mr. Raby was interrogated, police also held his girlfriend
(Merry Alice Gomez) and her infant son at the police station. Mr. Raby had been
wanted by police for several days when he was arrested, and was with Ms.
Gomez when he was arrested. Mr. Raby feared that if he did not cooperate with
police, Ms. Gomez would be arrested as well, and could even lose custody of her
son. Whether police intended so or not, their presence placed enormous pressure
on Mr. Raby to go along with the officers questioning him by agreeing to
whatever version of events they suggested to him.
These essential facts, among many others described in detail in the
Statement of Facts below, reveal just how weak the evidence against Mr. Raby
was. On the State’s version of events, Mr. Raby walked in the front door (despite
evidence that the door was locked and someone had entered through a window),
stabbed Mrs. Franklin repeatedly for no reason (without getting blood on his
jacket or sustaining any wounds of his own), and then walked out through the
back door without washing his bloody hands (even though there was no blood on
the back door and no explanation for who rifled through Mrs. Franklin’s purse in
her bedroom). Setting aside the inconsistencies between the evidence and the
custodial statement plus the circumstances in which that statement was made,
the evidence that Mr. Raby committed this crime was exceptionally weak.
We now know, however, one additional crucial fact to add into the mix, and
which was not presented to the jury: the decedent had the blood of at least one
male – who was not Mr. Raby or the two grandsons who lived with the frail 72
year old woman – underneath her fingernails. The lab analyst who testified at
trial, Joseph Chu from the beleaguered Houston Police Department (HPD) crime
lab, knew that the decedent had blood under her fingernails that did not match
Mr. Raby or Mrs. Franklin, because his lab report reflects the detection of a
blood substance that is inconsistent with both of their blood types. In a
hornbook violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), the State did not disclose that evidence to defense counsel at
Moreover, in a hornbook violation of Giglio v. United States, 405 U.S. 150, 92 S.
Ct. 763, 31 L. Ed. 2d 104 (1972), and Ex Parte Chabot, 300 S.W.3d 768, 771
(Tex. Crim. App. 2009), the State “doubled down” on its Brady violation when
Mr. Chu testified at trial that the results of his bloodwork examination were
“inconclusive.” They were not inconclusive; they conclusively proved that another
person’s blood was under the fingernail of Mrs. Franklin in a location consistent
with a defensive struggle. In subsequent post-conviction proceedings (discussed
below), the State’s own serology expert admitted that Mr. Chu’s statement to
the jury was false. Defense counsel did not challenge Mr. Chu’s statement on
cross-examination. They also did not cross-examine the testifying officers about
the circumstances of the interrogation (and, in fact, astonishingly asked Sergeant
Allen a leading question inviting him to confirm that the statement had been
given “freely”). Moreover, they did not put on any evidence at the guilt-innocence
phase of trial.
Finally, in their closing arguments, defense counsel did not point out all of
the vagueness in the custodial statement and the inconsistencies between that
statement and the other evidence of the crime. Rather, they explicitly conceded
seven times that Mr. Raby killed the decedent, stating (among several similar
statements) that “the state has proved there was a killing, they have proved that
Mr. Raby committed this killing…. Charles Raby made a confession. He made a
confession about a very horrible thing he had done.” Defense counsel chose
instead to defend Mr. Raby based only on whether the State had established one
of the predicate offenses for capital murder, bizarrely attempting to impeach the
State’s evidence that there had been a forced entry through a window even
though that evidence strongly undermined the only meaningful evidence of Mr.
Raby’s involvement in the crime (his custodial statement). Defense counsel’s
total abandonment of their responsibility to zealously advocate for Mr. Raby, in
those and many other respects, denied him the effective assistance of counsel in
violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
The State may argue that defense counsel’s decision to concede the validity
of the confession and the murder was a reasonable strategic decision based on
the strength of the evidence against Mr. Raby, hoping to engender mercy for Mr.
Raby’s cooperation with police. That argument is wrong, because defense
counsel did not perform a minimum investigation to determine that Mr. Raby did
not remember the night of the crime. Defense counsel were in no position to
evaluate the strength of the only meaningful evidence against Mr. Raby.
Moreover, this argument merely highlights the enormous prejudice flowing from
the State’s concealment of evidence that Mrs. Franklin had another person’s
blood under her fingernails. Defense counsel cannot possibly make a reasonably
informed decision about whether to concede that Mr. Raby committed murder
without knowing that another person’s blood was found on Mrs. Franklin in a
location consistent with a defensive struggle. There can be no doubt that if
competent defense counsel had known that elementary fact, they would not have
taken the extraordinary step of conceding that their client committed murder
(which borders on ineffective representation in any case), and instead would
have conducted a zealous defense that investigated all of the weaknesses in the
State’s case, and then highlighted rather than minimized the many problems with
the custodial statement that was the cornerstone of that case.
Defense counsel also denied Mr. Raby the effective assistance of counsel at
the punishment phase of trial, in violation of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984) and Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495
(2000). After putting up no meaningful opposition to the State’s evidence at the
guilt-innocence phase in the apparent belief that resisting conviction was futile and
that their energies should be concentrated towards Mr. Raby’s presumably
inevitable sentencing hearing, defense counsel at the punishment phase simply
“went through the motions,” and failed to put on available, compelling cases on
both special issues.
On the “future dangerousness” special issue, defense counsel failed to rebut
the State’s evidence of Mr. Raby’s prior bad acts with compelling evidence that
Mr. Raby likely could adjust well to the prison context, and instead put on an
alleged expert psychologist who exaggerated the risk that Mr. Raby would commit
future violent acts. On the mitigation special issue, although defense counsel did
call several witnesses who described aspects of Mr. Raby’s life, defense counsel
failed to develop substantial mitigating testimony, and terribly mishandled the little
evidence they did produce. Combined with defense counsel’s failure to generate
any doubt about Mr. Raby’s guilt at the guilt-innocence phase, there is a
reasonable probability that, but for defense counsel’s deficient performance, the
outcome of the punishment phase would have been different.
Finally, more than 12 years following Mr. Raby’s conviction, additional new
evidence surfaced from DNA testing, which undersigned counsel obtained
through proceedings under Chapter 64 of the Texas Code of Criminal Procedure
(which Mr. Raby filed before the federal district court ruled on his habeas
petition, demonstrating his confidence that his DNA would not be found). That
new evidence, which relied on a new method of Y-chromosome DNA testing,
demonstrated conclusively that there was blood under Mrs. Franklin’s fingernails,
and that the blood originated from one or two males who were neither Mr. Raby
nor the two grandsons who lived in her home. The State has no plausible
explanation for the presence of blood under Mrs. Franklin’s fingernails other
than the very likely scenario that the source of the blood was Mrs. Franklin
clawing the man or men who murdered her.
None of this evidence or the claims presented in this application have ever
been considered by a Texas court. These issues obviously could not have been
resolved in Mr. Raby’s direct appeal because they are inextricably intertwined
with extra-record evidence. Moreover, other than the claims for ineffective
assistance of counsel, the evidence at the core of the claims presented in this
application – Mr. Chu’s lab report and the DNA evidence obtained in 2006-2007
– were not available when Mr. Raby’s first petition for habeas corpus relief was
filed in 1998.
Thus, this court can grant relief on those claims because their factual bases were
not available on the date the prior application was filed. See Tex. Code Crim.
Proc. art. 11.071 § 5(a)(1). Furthermore, the Court can grant relief on all of Mr.
Raby’s claims because, but for the State’s violation of Mr. Raby’s rights under the
United States Constitution, no rational juror could have found Mr. Raby guilty
beyond a reasonable doubt or returned an affirmative answer on both of the
special issues at the punishment phase.
Finally, this Court should recognize an additional ground for considering
Mr. Raby’s ineffective assistance of counsel claims in this application based on
his state-appointed habeas counsel’s unqualified incompetence and
ineffectiveness during Mr. Raby’s initial habeas proceedings. The application filed
by the lawyer appointed to handle that case (James Keegan) submitted an
application that exclusively raised claims that arose out of the trial record,
contravening Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998)
(refusing to consider claims first brought in Article 11.071 brief that could have
been raised on direct appeal). Indeed, Mr. Keegan’s records indicate that he
undertook no investigation at all, although Article 11.071 requires it
unambiguously. Moreover, Mr. Keegan submitted that barebones application that
raised no new evidence or extra-record claims, and risked procedurally
defaulting valid claims, despite Mr. Raby’s persistent efforts to cajole Mr. Keegan
into investigating his case and raising new claims, and even his attempt to fire
Mr. Keegan (who blocked his attempt by failing to withdraw as counsel). In this
limited context, in which valid claims that could only be raised in a habeas
application were not raised because of the ineffectiveness and active obstruction
of court-appointed habeas counsel, the Court should consider Mr. Raby’s claims
as if they had been asserted in his initial habeas application.
In short, this is an extraordinary case in which defense counsel chose to
concede that their client committed murder, ignorant of the fact that the
decedent had a stranger’s blood under her fingernails. Mr. Raby is entitled to
have a jury determine his guilt, with the benefit of a zealous defense, knowing
that essential fact.
As set out in detail below, Mr. Raby is entitled to habeas relief on ten
grounds: (1) under Texas Code of Criminal Procedure Article 11.073, relevant
DNA evidence was not yet available at the time of his trial and relevant blood
typing evidence was not ascertainable through reasonable diligence at the time
of trial, both of which would have been admissible and without which it is likelier
than not that Mr. Raby would not have been convicted; (2) Mr. Raby’s conviction
violates his constitutional rights because the State failed to produce material
exculpatory blood-type testing results; (3) Mr. Raby’s conviction violates his
constitutional rights because the State knowingly put on perjured material
testimony to obtain his conviction; (4) Mr. Raby’s conviction violates his
constitutional rights because the State used false and misleading material
testimony; (5) Mr. Raby’s conviction violates his constitutional rights because the
State destroyed material exculpatory evidence; (6) Mr. Raby’s conviction violates
his constitutional rights because newly discovered evidence establishes his actual
innocence; (7) Mr. Raby’s conviction violates his constitutional rights because it
is based on an involuntary confession; (8) Mr. Raby’s conviction violates his
constitutional rights because he received ineffective assistance of counsel at the
guilt-innocence phase of trial; (9) Mr. Raby’s death sentence violates his
constitutional rights because he received ineffective assistance of counsel at the
punishment phase of trial; and (10) Mr. Raby’s conviction violates his
constitutional rights because the State impermissibly commented on his silence
at trial, which defense counsel and appellate counsel ineffectively failed to
challenge by objection and on direct appeal, respectively.
Therefore, Mr. Raby requests that the Court of Criminal Appeals review this
second application, as permitted by Section 5 of Article 11.071, and remand his
case to the district court for proper habeas proceedings.