FILED
THOMAS A WILDEFI. DIST. 

 

 

TAHHANT comm: TEXAS
  1'0?65 622-3 JUNE 9.3917? 
me
By
oeeuw
EX PARTE IN THE 213TH JUDICIAL

DISTRICT COURT OF

JOHN EARL NOLLEY TARRANT COUNTY, TEXAS

AGREED PROPOSED MEMORANDUM
FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

The Applicant and the State propose the following Memorandum,
Findings of Fact, and Conclusions of Law regarding the specified issues raised
in'the above?numbered application for writ of habeas corpus.

MEMORANDUM

The Applicant pled not guilty at trial and offered a defense of actual
innocence but was convicted of the murder of Sharon McLane on May 26,
1998. See Judgment. The jury sentenced him to life and a judgment was
entered on May 28, 1998. See Judgment.

On direct appeal, Applicant raised four points of error alleging factual
insufficiency of the evidence and hearsay violations. The Second Court of
Appeals upheld his conviction on September 23, 1999. The Texas Court of

Criminal Appeals denied Applicant?s Petition for Discretionary Review on

February 9, 2000. 

The Applicant previously ?led a pro 39 application for writ of habeas
corpus on September 1, 2000, Writ No. 46,177-02, C-213-5056-0665622-A,
alleging that he was denied effective assistance of counsel. The application
was denied without written order "on the findings of the trial court without a
hearing? on January 10, 2001.

A motion for Chapter 64 post-conviction DNA testing was filed by
counsel on Applicant?s behalf on April 24, 2008. An Agreed Order for DNA
testing was entered by the 213th District Court on April 30, 2009.

Over the next eight years, counsel for Applicant and the State worked
cooperatively to locate and test dozens of biological DNA samples collected
from the crime scene and recovered during the victim?s autopsy. During this
time, the parties submitted to this Court several additional agreed orders
authorizing the transfer, testing and analysis of various items of forensic
evidence, including DNA and latent print evidence.

Shortly after initial written laboratory reports regarding the DNA
testing ordered by this Court under Chapter 64 were issued, this case was
referred by the Post-Conviction section of the Tarrant County Criminal

District Attorney's Office to elected CDA Sharen Wilson?s newly-created

2

 Unit for review of the new forensic evidence
results and reinvestigation of Applicant?s claim of actual innocence. During the
course of the intensive [then] ten~month investigation and consistent
with the State?s ongoing Brady obligations, the Applicant was provided with a
complete copy of the State?s trial file (including work product] as well as a
copy of grand jury testimonies [transcripts] and other discovered grand jury
records in this case. The CIU also discovered and provided the Applicant with
additional documentary evidence from other files and transcripts maintained
by the Criminal District Attorney?s Office pertaining to a jailhouse witness
who had been called by the State to testify against Applicant in 1998.

On April 27, 2016, Applicant ?led this Application for a Writ of Habeas

Corpus asserting the following claims in three grounds:

1. A combination of newly available forensic evidence and newly
disclosed documentary evidence, Viewed in light of the record as a
whole, entitled him to relief based on actual innocence, pursuant to
Ex Parts Elizondo, 947 202 (Tex. Crim. App. 1996) 

2. He is entitled to relief under art. 11.073 of the Texas Code of
Criminal Procedure because if newly available DNA forensic evidence
had been available and presented at his 1998 trial, by a
preponderance of the evidence he would not have been convicted;

He is entitled to relief under art. 11.073 of the Texas Code of

Criminal Procedure because if new and contradictory scientific
evidence regarding the bloody print had been available and

3

presented at his 1998 trial, by a preponderance of the evidence he
would not have been convicted;

3. His conviction was obtained in violation of due process in that he and
his trial counsel were not provided with exculpatory documentary
evidence contained in the State's files which impeached the
testimony of two witnesses and demonstrated that the State?s former
trial prosecutors sponsored false testimony and the exculpatory
impeachment materials in question were contained within the
Criminal District Attorney's ?les and are thus covered by Brady v.
Maryland, 373 U.S. 83 (1963], whether or not the former trial
prosecutors in this case knew of this information.

On May 12, 2016, the State filed its Reply reciting that the CIU was
continuing to investigate facts and conduct additional forensic testing, which
were potentially relevant to Applicant's claim of actual innocence and one of
his 11.073 claims, and requested that the Court designate those issues, that
the Court permit the State to respond to both those claims at a later date, and
that the Court defer issuing its Findings as to those claims. At that time, based
on the then developed record, including the forensic reports and data that
were provided to both parties, as well as the own extensive review and
reinvestigation of the case, the State believed that Applicant was entitled to
relief on his due process grounds and, alternatively, on one of his 11.073

claims [relating to reanalysis of a bloody latent print from the scene). Both

parties recommended to the Court that it immediately enter Findings of Fact

and Conclusions of Law on the agreed claims and grant Applicant?s release on
bond with agreed conditions pending resolution of his remaining claims: his
actual innocence claim raised in Ground One and his 11.073 DNA claim set
forth in Ground Two of his writ application. Both parties agreed that based on
the ongoing investigation regarding the two designated claims at that time it
was appropriate to defer transmitting the Findings and record to the Court of
Criminal Appeals until the completion of any further hearings and entry of
Findings resolving all pending claims.

Since that time, additional investigation and new forensic testing has
followed based in part on additional leads which developed after the Court?s
signing of the original agreed proposed ?ndings in this cause. The CIU has also
continued to disclose information [some under an agreed protective order]
gathered from its investigation to Applicant. Assisted by the Bedford Police
Department, the parties have worked diligently and cooperatively to continue
to resolve the remaining issues. The parties have also continued to apprise
this Court under seal of additional forensic examinations and newly
discovered information as this investigation has progressed. See Sealed
Attachment [October 2016]; Sealed Attachment [February 2017].

At this time, in order to ensure that the investigation continues

5

unimpeded; protect the privacy interests of witnesses and participants
who have been cooperative and, in some instances, provided exemplars for
forensic comparisons; and, (3) avoid the release of information which might
jeopardize the ultimate resolution of this matter, the parties have again filed
under seal an updated accounting of all the forensic testing and new
information. See Sealed Attachment [June 2017]. This new sealed attachment
includes details of the confidential, ongoing investigation into the homicide of
Sharon McLane [in which none of the new information or testing has been
inculpatory as to Applicant] and supports the agreed proposed findings herein
below set forth.

Applicant ?led his Amended Memorandum of Law in Support of his
Application ["App. on June 2, 2017. The State filed its Amended Reply
("State?s on June 2, 2017.

This Court should now consider and adopt the following proposed
?ndings of fact and conclusions of law and accordingly recommend to the
Court of Criminal Appeals that the requested relief be granted on Applicant?s

due process claim raised in Ground Three.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

To understand the significance of Applicant?s new evidence and the
bases for recommending that relief be granted under arts. 11.07, this Court
has reviewed Applicant?s Amended Memorandum of Law in Support of his
Application [which contains a detailed summary of the trial evidence
presented by both sides at the State?s Amended Reply, the
extensive reporter?s record from Applicant?s trial, the unpublished opinion
issued in this case by the Second Court of Appeals [Exh. to State?s R), and the
sealed attachments filed by the parties (Sealed At. [October 2016]; Sealed Att.
[February 2017], Sealed Att. [June 2017]).

Ground One: Actual Innocence Claim

As recited above, there is currently an ongoing investigation and
continued forensic examinations, and Applicant?s claim for relief based on
newly discovered evidence of actual innocence is based in part on the results
of these examinations and investigation. As set forth in the parties? sealed
attachments, the testing and investigation to date have yielded nothing
inculpatory as to Applicant, and have yielded several items of new evidence

that provide additional support for his claim of actual innocence. However, it

is not expected that this claim can be fully resolved or completed in the

7

__immediate future due to the complex nature of the investigation. While
Applicant maintains his factual innocence, he recognizes that he must make an
"exceedingly persuasive case that he is actually innocent? in order to prevail
on this claim under art. 11.07. See Ex Parts Elizono'o, 947 at 206. Thus,
he wishes to proceed on his Ground-Three claim only so that this writ process
may be expedited rather than delayed, and will not be proceeding on his

actual innocence claim at this time. The State agrees to proceed only on the

due process claim.
Findings ofFoct

1. There is an ongoing investigation and the parties have agreed not to
proceed on the Ground One claim; therefore, no ?ndings of fact are

necessary.

Conclusions of Law

1. Because of the parties? agreement not to proceed on the Ground One
claim, no conclusions of law are necessary.
Ground 2: 11.073 Claims
Forensic examinations are ongoing and the Applicant?s 11.073 claims in
Ground Two would not provide him with any additional relief other than that

which he would already obtain under the due process ground. Applicant's

entitlement to habeas relief on Brad}: grounds alone is clear on the present
record. Therefore, Applicant will not be proceeding on these claims at this
time.1 The State is in agreement with this approach.

Findings of Fact

1. There is an ongoing investigation and continued forensic examinations

are pending. The parties have agreed to proceed only on the Ground
Three [due process) claims. No ?ndings of fact are necessary as to the

Ground Two claims.

Conclusions of Law

1. Because of the parties' agreement not to proceed on the Ground Two

claims, no conclusions of law are necessary.

Ground 3: Due Process Claims

The Applicant contends that his due process rights were violated when
the State failed to disclose favorable impeachment evidence in its collective
possession, which was material to the Applicant?s trial, and when the State
sponsored false testimony. With respect to this complaint, the trial court
hereby makes the following findings of fact and conclusions of law, and

accordingly recommends that the requested relief be granted.

 

1 The parties respectfully request that if the Court of Criminal Appeals does not grant relief

on the due process claims, it remand for consideration of the 11.073 claims.
9

Findings of Fact

1.

The Applicant submitted the following items of evidence regarding
jailhouse witness Iohn O'Brien who testified for the State at trial. The
materials in question were all provided to the Applicant?s current
counsel in 2015-16, and the parties agree that they constitute newly
discovered evidence that was not available at the time of trial or at the
time of the Applicant?s prior pro se writ application.

a.

An undated note in the State?s felony theft file for O?Brien, relating
to the plea ultimately entered in his case on November 21, 1997,
in which his then-counsel informed ACDA James Cook [who was
assigned to that case] that another ACDA, Mike Parrish, had
offered O?Brien deferred adjudication probation.

Handwritten notes from the State?s file of another Tarrant County
homicide prosecution [State 11. Diane Zamora) relating to a
meeting held on November 7, 1997, between prosecutors in that
case, O?Brien, and O?Brien?s counsel, in which O?Brien proffered
inculpatory statements made by Zamora that he alleged he
obtained from Zamora at the jail law library.

A statement obtained from O?Brien?s former counsel, during
interviews with the CIU in 2015, in which O?Brien?s former
counsel speci?cally recalled that O?Brien had offered to inform on
Diane Zamora and offered inculpatory information regarding the
Applicant in order to obtain a favorable plea offer in his own theft

cases.

Correspondence and internal memoranda located by the CIU in
separate CDA files relating to O?Brien?s efforts to serve as a State
informant during 1996-97, and long before he testi?ed against the
Applicant. These documents reveal that O?Brien, through another
former counsel, offered to inform on numerous other suspects in
various narcotics and theft cases prior to the entry of his own plea
in November 1997 and explicitly noted that .O?Brien "wants to
work as a snitch? on behalf of the State and that his then?counsel

10

sought to confer with relevant CDA personnel in order to
negotiate the terms of such cooperation on his client?s behalf.

The transcript of testimony O?Brien gave as a State?s witness in
another homicide prosecution on December 4, 1997 [two weeks
after his plea was entered, and ?ve months before testifying
against the Applicant), in which O?Brien claimed that the
defendant made inculpatory statements to him at the jail law
library. When cross-examined in that case, O?Brien falsely swore
under oath [as he did at the Applicant?s trial] that he had never
informed on any other defendant, and had never tried to bene?t
himself by offering to serve as a State?s witness or informant
(stating, inter alia, never contacted the DA in my life. I've never
tried to work a deal, get myself out of trouble, if that?s what you?re
referring 

The Applicant submitted the following items of evidence regarding
State?s witness Iason Vandergriff. The materials in question were all
provided to the Applicant?s current counsel in 2015-16, and the parties
agree that they constitute newly discovered evidence that was not
available at the time of trial or at the time of the Applicant's prior, pro se
writ application.

a.

Transcript of testimony given by Vandergriff before the grand jury
on june 13, 1997 (eleven months before trial). In his grand jury
testimony, Vandergriff made several sworn statements that
appear to contradict or otherwise impeach his claim at trial that
the Applicant specifically told him on December 12, 1996, that he
?stabbed? someone the previous evening. First, Vandergriff was
asked by the prosecutor whether Applicant ?provided any details?
about the physical altercation he had allegedly described in that
phone call [when Vandergriff claimed that Applicant stated he
a and Vandergriff testified that he did not.
Second, Vandergriff was speci?cally asked by one of the grand
jurors whether at any time, the Applicant had "ever mentioned"
doing ?a violent crime,? including ?cutting somebody? or anything
"of this nature." Vandergriff testified that Applicant had never

1]

made any such statements. Vandergriff further stated that nothing
in the Applicant?s history suggested to Vandergriff that the
Applicant was capable of committing such a crime; "I?ve never
pictured John stabbing nobody."

b. A Directed Question Interview conducted with [and completed
by) Vandergriff and the Bedford Police Department on February
19, 1997. In this initial police interview, Vandergriff is informed
that police are investigating the murder of Ms. McLane, who ?was
killed by repeated stabbings [between] Wednesday, December 11,
1996 and Saturday, December 14, 1996.? In response to Question
Three?"Please tell us everything you know about Sharon?s
wrote only, was told she was stabbed
several times.? [This document was located in the Bedford Police

Department file acquired by the Applicant through a public
information request and acquired by the State during 
requests for production of all files, but was not in the trial

file.)

The State submitted sworn affidavits from former trial prosecutors
James Cook and James ?Jimmy? Evans detailing their recollections
relating to the above evidence at issue. Although Applicant does not
allege that the trial prosecutors intentionally concealed the exculpatory
evidence in the State?s files, the former prosecutors were given an
opportunity to address that issue, and their affidavits directly
controvert any intentional or knowing concealment by them [Exhs A, 
to State R.). The affidavits sufficiently address the due process matters
before this Court and, thus, the live testimony of these former
prosecutors at a hearing is not necessary to resolve these issues.

The Applicant submitted the sworn affidavit of his former trial counsel,
Gary Medlin, addressing the nondisclosure of the above referenced
documents and information (Exh. to App. MOL).

The record demonstrates that the Applicant?s trial counsel made
diligent, timely requests for pretrial discovery of any Brody material in
the State?s possession, including potential impeachment material

12

related to these informant witnesses. These requests included written
motions ?led by counsel eight weeks before trial, seeking 
production of Brady material, and an omnibus Motion for Discovery
and Inspection that sought, inter alia, all prior statements of testifying
witnesses, including grand jury testimony.

There is no reporter?s record of O?Brien?s theft plea currently in
existence [if one was ever made].

There is no reporter?s record transcribing the events that took place at
the pre-trial hearing held on April 20, 1998, in existence, and it does not
appear that this hearing was ever transcribed.

Conclusions of Law

1.

If the State fails to reveal favorable evidence to an accused upon his
request, an accused?s due process rights are violated if that evidence is
material to guilt or innocence. Brady v. Maryland, 373 US. 83, 87 [1963);
see Gigiio v. United States, 405 U.S. 150, 153?54 (1972] [clarifying that
the rule espoused in Brady applies to evidence undermining Witness
credibility]; Ex parte Richardson, 70 865, 867 (Tex. Crim. App.
2002](concluding that State had an affirmative constitutional duty
under Brady to disclose material evidence that impeached the
eyewitness?s testimony].

A trial prosecutor is not required to have actual knowledge of the
undisclosed material to violate Brady. Under Brady "the individual
prosecutor has a duty to learn of any favorable evidence known to
others acting on the government?s behalf.? Kyles v. Whitley, 514 U.S. 419,

437?38(1995)

?The State? does not just include the trial prosecutor, but "other lawyers
and employees? of the office and "members of law enforcement
connected to the investigation and prosecution of the case." Ex parte
Miles, 359 647, 665 (Tex. CrimApp. 2012].

?Actual knowledge? by the trial prosecutor is not required but

13

10.

11.

_knowledge of others can be imputed to the trial prosecutor. Id.

Brady does not distinguish between impeachment evidence and other
favorable evidence. United States v. Bagley, 473 U.S. 667, 676 (1985];
Harm v. State, 183 403, 408 (Tex. Crim. App. 2006],- Ex parte
Richardson, 70 at 870.

Evidence is considered material if there "is any reasonable likelihood?
that the evidence could have "affected the judgment of the jury.? Giglio,
405 U.S. at 154; Napae v. Illinois, 360 U.S. 264, 271 (1959].

To prevail, an accused "need not Show that he 'more likely than not'
would have been acquitted had the new evidence been admitted.?
Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (per curium] (quoting Smith
v. Cain, 565 U.S. 73, 75 (2012]). Instead, the accused must show "only
that the new evidence is sufficient to 'undermine con?dence? in the

verdict." Id.

The materiality of each piece of evidence must be viewed cumulatively
rather than in isolation. Kyles, 514 U.S. at 41. Materiality should also be
evaluated in the context of the entire record. United States v. Agars, 427
U.S. 97, 112 (1976).

The U.S. Supreme Court has further emphasized that where?as in
Applicant's case?defense counsel made a specific request for
production of materials that were not disclosed, the inference that the
violation was material under Brady is particularly strong. See, 
Bagley, 473 U.S. at 682.

The Due Process Clause of the Fourteenth Amendment can be violated
when the State uses false testimony to obtain a conviction, regardless of
whether it does so knowingly or unknowingly. Ex parte Chavez, 371
200, 207?08 (Tex. Crim. App. 2012); Ex parte Robbins, 360
446, 459 (Tex. Crim. App. 2011]; Ex parte Chabot, 300 
768, 770?71 (Tex. Crim. App. 2009]; See U.S. Const. amend. XIV, 1.

Testimony need not be perjured to constitute a due-process violation;

14

12.

13.

14.

15.

rather, it is sufficient that the testimony was false. EX ports Chavez, 371
at 208; EX ports Robbins, 360 at 459. The question is
whether the testimony, taken as a whole, gives the jury a false
impression. Ex parte Chavez, 371 at 208; Ex parte Ghohremoni,
332 470, 477 (Tex. Crim. App. 2011).

It is unnecessary for this Court to consider the issue of intentional or
knowing concealment by the former trial prosecutors as the Applicant
does not allege the same and because the law is clear that the State is
charged with constructive knowledge of all undisclosed material in the
and police files and because the Applicant has met his burden of
establishing that the defense was not provided with the above recited
information and documents at trial. The Applicant?s due process rights
are impacted regardless of the State?s good or bad faith and without
consideration of whether the State had actual knowledge.

As with Applicant?s other Brady and Nopue claims, whether the former
trial prosecutors knew of the falsity of O?Brien?s testimony at the time it
was given is not at issue here because the record supports the
Applicant?s assertion that O?Brien was not truthful and because
knowledge of any bene?ts sought by or provided to O?Brien during his
communications with other individuals in the Office are imputed

to the State.

The Applicant and his jury were ultimately not provided with important
Brody material in the possession of the State regarding both O?Brien and
Vandergriff, and that nondisclosure was material to the outcome in this
cause. The State?s case against Applicant was circumstantial and, as one
of the former trial prosecutors noted in his voluntary Affidavit, the State
relied heavily on informant testimony to meet its burden of proof.

These undisclosed documents, considered cumulatively, constitute
material evidence. Because these documents would have substantially
impeached and, in some respects, established the falsity of the
informants? testimony, the suppression of this evidence clearly
undermines con?dence in the outcome of the trial.

15

16. Further, as the Court of Criminal Appeals has emphasized, applicants
who show their trials were tainted by false testimony?whether or not
the prosecutor knew the testimony was false?are entitled to Napue?s
even more lenient standard of materiality review. See Chavez, 371 S.W.
3d at 206 [materiality under Chabot is satisfied whenever there exists a
?reasonable likelihood that the false testimony affected the applicant's
conviction?). Thus, in addition to undermining confidence in the
outcome of Applicant?s trial under the higher standard of Brady, the
suppressed evidence also establishes that there is, at the very least, a
reasonable likelihood that the false testimony by one or both of these
informant witnesses affected Applicant?s conviction.

WHEREFORE, PREMISES CONSIDERED, the State and Applicant pray
that the Court adopt its agreed proposed memorandum, ?ndings of fact, and

conclusions of law.

Respectfully submitted,
Counsel for the State:

SHAREN WILSON
Criminal District Attorney

Tarrant County, Texas

A. Moore Boswell

Assistant Criminal District Attorney
401 W. Belknap

Fort Worth, Texas 76196-0201
[817] 884?1687

State Bar No. 00788072

16

  

 

 

Reaga
Kearney 

3100 West 7th St. #420,
Fort Worth, Texas 76107
[817) 336-5600

State Bar No. 00797708

 

Nina Morrison, Esq.

me?fg

Barry Scheck, Esq.

Pro Hat: Vice

INNOCENCE PROIECT, Inc.
40 Worth Street, Suite 701,
New York, New York, 10013
[212] 364-5340

17

 

NO. C-213-010761-0665622-B

EX PARTE IN THE 213TH JUDICIAL

DISTRICT COURT OF

JOHN EARL OLLEY TARRANT COUNTY, TEXAS

 

Having carefully reviewed the Agreed Proposed Memorandum,
Findings 0f Fact and Conclusions Of Law On Applicant?s Due Process
Claims ?led on June 2017 the Court hereby orders, adjudges, and decrees
that they be adopted as its own. The Court further orders that the previous
Order on Agreed Proposed Memorandum, Findings of Fact and Conclusions of
Law, signed May 17, 2016 is withdrawn and this Order supersedes that
previous May 2016 Order of the Court in this matter.

Thus, the Court directs the Clerk of this Court to:

1. Furnish a copy of this Order to the applicant?s counsels, and to the
CIU of the Of?ce; and

2. File this Order and transmit a copy of it along with the papers ?led
and transcripts in this cause to the Clerk of the Court of Criminal

Appeals.

SIGNED AND ENTERED this the day of

 

 

Hon. Louis Sturns,
Judge, 213th Judicial District Court

18