A ‘Subsequent application’ which falls under chapter 11, Habeas Corpus article 11.071 § 5 subsequent writ (a)(1)(2) (see art 11.071).
What this will allow us to do it ‘try’ and get the courts to hear claims which they have never heard before, new claims.
- Newly discovered evidence (DNA) (see Tex code crime proc art 11.59, also see Brady v. Maryland 373 U.S. R3 (1963)).
- False expert testimony (see NAPU V. Illinois 360 U.S. 264 (1959), also See Giglio V. U.S. 405 u.5150 (1972)).
- Prosecutorial misconduct (see Brady u. Maryland 373 US 83 (1963))
Withhold of exculpatory evidence (see Brady V. Maryland 373 U.S.B3 (1963)).
To better understanding, read those cases. They can explain it far better than I ever could. But my biggest fear is now that the TCCA has ruled that the DNA in my case is not favorable to me nor would it had made a difference to at least one juror and denied me. Will they rule that all of these are also harmless errors and not because they are all directly tied to the newly discovered DNA results?
- New discovered evidence that is from blood and is conclusively not mine.
- False expert testimony describing the lab report as inconclusive when it was not. Prosecutorial misconduct due to the fact that my DA withheld evidence, and failed in his duty to correct known false testimony.
Will they again deny me? I am going to say yes they will and that is with my lack of education and fully understanding the law. But they will deny me. It is what the TCCA does, deny, deny, deny, but it doesn’t stop there, at least from my understanding. I think now I will also be able to bring up things that I was once procedurally barred from doing. Due to the latest ruling that opened the door to allow us to have these never before claims heard in the case of (Trevino V. Thaler 133 S.CT. 1911 (2013)). And if so use it to show Ineffective
Assistance of Counsel (IAC) which falls under (Strickland V. Washington 466 U.S.668,687 (1984)). On my trial attorney for his failure to:
- Investigate my statement, if he would had he would had seen that it of nothing but lies and therefore false.
- Failed to hire his own DNA experts, relying solely on the states expert. But this could be in part due to the fact that the DA withheld the lab report. After all he did file a Motion to be able to review all evidence. (See Motion)
- Failure to hire a confession expert when I told him the only reason I gave that false statement was due to treats to my loved ones.
Things my jury never got to hear.
- Failure to call to the stand the across the street neighbor Donna Espada who told investigating detectives that upon her arriving home at 6: pm she noticed a white male at the south east bed room window that looked to her to be taking the screen off, and the person was not Eric. (see Police report Donna Espada at pag 2.017) And TCCA opinion NO ap-74.930
For if he would had taken the time to investigate it, he would had seen that I was at Shirley Gunn’s house at the exact time she witnessed this man at that window. (see Police report Donna Espada at Pg 2.017, 2.013 And see Trial Transcript Shirly Gunn at XXVII 296-7
So this is something he should have investigated. And if these things don’t fall under (IAC) I do not know what does….But maybe this is just something else that was withheld from them? Could be. It wouldn’t be the first thing the DA withheld evidence, right?
But as I said I don’t know if we bring all this other stuff up through Trevino now at the state level or later in the federal district level.
Yet as I said my biggest fear is them ruling that the newly discovered evidence, false expert testimony and misconduct will all be ruled as harmless errors. A harmless error is when they say: “Yes a clear violation of the rule of law was committed, but due to the totality of the evidence it is a ’harmless’ error.” Meaning they can get away with messing me over, or anyone over.
They have already ruled the DNA would not have made a difference, so what is to stop them from saying the same thing now? It is easy for them to say these things, they are not the one who is getting screwed
at every stage. It is easy for them to sit there and read over a 23 year old case and try to undermine the work of the on scene detective who say they ’observed’ blood ’underneath’ the fingernails, it is easy for their because they always take side with the prosecution. As all of them are all former prosecutors. They will side with the prosecutors even when a district court judge recommends relief
be granted … Unless that judge recommends: relief be denied. Then they go with the court, because the state will not appeal, but let that judge recommend relief and recommend the defendant should be granted a new trial, and then the prosecution challenge that ruling? The TCCA will always side with the prosecution and or when the judge recommends relief be denied. I wonder if a study could be conducted to see just how more often than not the TCCA rules in favor of the prosecution, after the judge has recommended relief be granted, I am sure there is a way but it would take time and a good investigation .
It would be interesting to see what the numbers are…also in a Chapter 64 hearing. I don’t think in the history of CH64 they have ever given anyone relief on it. I could be wrong, but I know for a fact nobody here on Death Row has gotten any relief from a CH64.
But yes, I expect the TCCA to deny me as they always have. Even in light of hearing all this newly discovered evidence, false testimony and misconduct.
I bet they rule ‘ although it is clear the prosecution did fail in his duty to turn over all evidence and failed to correct known false testimony, we do not feel it would had made a difference in the outcome of the verdict’…I bet they say something along those lines.
Because with everything there is a ‘prong’ test meaning the evidence has to be.
- Material (in my case it is)
- Did it cause harm? Meaning would it had made a difference in the outcome of the verdict. (I think that question should be put towards my jury).
And more times than not, they will say it was ‘material; but given the facts of the case and due to the ‘totality’ of the evidence, we do not feel it would had made a difference to the juries verdict.
Again, this is why I strongly request that the screwdriver and the grandson’s friends should be tested. The last two pieces of the evidence that needs to be tested to prove my innocence. But will they do it? As with I think they will say my claims are moot, I think they will not test the screwdriver or friends. I just don’t see it happening without a court order, but getting that order will not be easy if they would even give it.
From my understanding the court has the power in the name of justice to order these guys to be tested, make them provide a DNA sample. But my hope is these guys will want to do it willingly but you know something? I think even if they were to come forward and tell the courts they want to take a DNA test, the courts will not allow it. I really believe this, I think the DA will fight not to allow them to be tested. I think they will do everything in their power to stop these test from ever happening. Instead of fighting me on this, just test them and the screwdriver.
I wonder if I could sue to make them do it if they will not do it willinging? If I can sue, I damn sure will. But anyway, that is my next move, will it all work? I doubt it; I think the courts will deny me at every stage.
Here is something I just read as I was just thumbing through my law book and found ‘ex parte Graves, 70 s.w.3d 103,105 (tex crim app 2000)’ ‘Because we find that competency of prior counsel is not cognizable issue on Hebeas Corpus Review, applicant’s allegation cannot fulfill the requirements of art 11.071 §5 for subsequent writ. Therefore we dismiss applicant’s writ under art 11.071 § 5 (c) As an abuse of write’
The guy Graves they speak of? That they denied? Who if they would had had their way and would had allowed his execution to be carried out? Is none other than Anthony Graves, who was wrongfully convicted for a crime he did not commit and is now today a free man.
And yet they denied him, and us time and time again! But they would had brought up this very same issue in ‘their’ appeals if it was them, and Would be swearing up and down they got messed over or the court was wrong to deny them.
And this was pre Trevino… How many guys did they allow to be killed due to this not being the proper time to bring up claims of IAC? Countless! They don’t care!
They will deny me; I have zero faith in the TCCA. I do however have faith in my attorney, she will do everything she can to save me and win me a new trial, that is all we are asking for a new trial. But I hate to admit it, all her hard work will be for nothing. I could be wrong, I hope I am, but I just do not see the TCCA giving me any relief.
But if I can get that screwdriver and the friends tested, then that would give me a fighting chance. It would level the playing field, the screwdriver will just be one more thing my DNA will not be on and put to rest once and for all if it is in fact one of the grandsons friends DNA (blood) as district attorney Lynn Hardaway is saying it ‘could’ be. Let’s find out, why not just ask them if they will be willing?
Here is something else I just noticed…I read this stuff all the time and I don’t know how I missed this one. . .but the TCCA called the person at the south east bedroom a [suspect] . . . If they are calling this man the [suspect] then that man sure is not me I am at Mrs. Gunn’s house at that very moment (see police report, Espada at pg 2.017, 2021, Shirley Gunn) trial testimony at XX VII at 296-7. And lastly see TCCA opinion at 74,930)
What is very odd to me is that the TCCA will take the word of the on scene detective when they said and wrote in the police report that they found a Pairing knife in Eric Benges bedroom and they ’observed no blood on the knife and tested it for prints’ …that they believe, they believe the ‘Observed no blood on the blade’. ..but they do not believe them when they say they ‘observed blood “underneath the fingernails”? (See Police report at 1.011, 2.013)
They believe them on one thing but not the other? They get to pick and choose from a 23 year old case report what they are willing and not willing to believe from the one scene crime scene detectives? Is that messed up or is that really messed up? For me, it will be just one more thing that my DNA is not on, will not be on, and was never on. And that it should be tested! More so since Eric Benge told the detectives try and the knife was not there earlier when he left the house. (see police report Eric Benge at 1.014) if it wasn’t there when he left for work. ..who put it there? Whose DNA might be on that knife? If I ain’t mistaken I believe my trial district attorney Roberto even showed that very knife to the jury. So hell yeah,
that is just another piece of evidence that was preserved which needs to be tested! If it wasn’t there when he left, it didn’t just magically appear there on its own … Someone put it that.
Knife did not appear to have blood on it and was dusted for prints) …yeah, it needs to be tested for DNA. That’s just common sense.
But again it blows me away at how they will except the word of an on scene crime scene detective that they didn’t observe blood on something, but totally blow off the fact they say they did observe blood ‘underneath’ the nails on Mrs. Franklyn. ‘We belief you on the knife evidence but think you are idiots and liars on the blood underneath the nails….’
Just one more instance that I can show how the TCCA is out of control and do and see things their own way. If the evidence helps them, they believe it if it helps the defendant/accused…’Ignore it, the detectives made a ‘mistake’, anything to justify them to deny me. Deny, deny. That’s what they do. The TCCA has a very interesting history in making evidence up? Refusing to accept evidence and just flat out taking the prosecutor’s side at every stage.