Introduction to 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.